Drain v. St. Louis, Iron Mountain & Southern Ry. Co.

Decision Date31 October 1885
Citation86 Mo. 574
CourtMissouri Supreme Court
PartiesDRAIN, Appellant, v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY.

Appeal from St. Louis Court of Appeals.

REVERSED.

The following were the instructions given for the plaintiff:

“1. The court instructs the jury that, although they believe from the evidence that plaintiff was guilty of some negligence, or imprudence, which contributed remotely to the injuries complained of, yet if the defendant, its agents, or employes, were guilty of misconduct, or carelessness, in the management of the defendant's car, which misconduct, or carelessness, was the immediate cause of the injuries in question, and with the exercise of ordinary care and prudence, on the part of said agents and employes, the injuries in question might have been avoided, then the jury will find for plaintiff.”

“2. If the jury believe from the evidence that the injuries complained of by plaintiff were occasioned by the negligence of any agent, servant, or employe of defendant, whilst running, conducting and managing any locomotive, car, or train of cars in the city of St. Louis, then the jury should find for plaintiff, and assess his damages at such sum as may recompense him for the injuries proven to have been received by him, not exceeding the sum of twelve thousand dollars, provided that plaintiff was himself without fault, or negligence, directly contributing to the injury.”

“3. The jury are instructed that it is the duty of defendant, when backing any freight car or locomotive propelled by steam power within the limits of the city of St. Louis, to have a man stationed on top of the car at the end furthest from the engine, to give danger signals.”

“4. If the jury find for plaintiff, they will, in estimating the amount of damages, take into consideration the age and situation of the plaintiff, his bodily suffering and mental anguish resulting from the injury received, and the loss sustained by the bodily injuries received, and the extent to which he was disabled from making a support for himself by reason of such injuries.”

“5. The jury are instructed that the right, on the part of the defendant, to run along Main street, in the city of St. Louis, is not an exclusive right, and does not deprive the residents of the city from using the same for the purpose of moving from place to place.”

The following is instruction number seven, refused for defendant, and referred to in the opinion of the court:

“7. That if they find from the evidence that Drain was on the track of defendant when he was struck, and that he was guilty of negligence which directly contributed to his injury, in being on said track at that time; and that if they further believe, from the evidence, that the men in charge of the locomotive and car, or any one of them, did not see Drain, or know he was there, or in danger, until it was impossible to stop the same so as to avoid injuring him, then the jury should find for the defendant.”

Finkelnburg & Rassieur for appellant.

(1) The court of appeals erred in finding that the trial court should have taken the case from the jury. The case should have gone to the jury, because ( a) there is no evidence of contributory negligence in the case; ( b) the evidence quoted by the court does not show any contributory negligence, unless violence be done to both the letter and spirit of the answers quoted; ( c) The plaintiff, before crossing, looked and listened, and failing to perceive the danger, owing to the gross negligence of defendant, looking and listening did no good. Fletcher v. Ry. Co., 64 Mo. 491; Kincade v. Ry. Co., 45 Mo. 255. (2) The case should have gone to the jury, because: if the plaintiff had been guilty of contributory negligence, and defendant's brakeman had been at his place, he could have prevented the accident after the discovery that plaintiff had put himself in peril. Kelly v. Ry. 75 Mo. 140, and authorities cited therein. (3) Instrnctions number one and two, given on behalf of plaintiff, correctly laid down the general rule of negligence, and the liability of railroads, under the circumstances shown by the evidence, and have the sanction of this court in similar cases. Whalen v. Ry., 60 Mo. 323; Isabel v. Ry., 60 Mo. 475; Hicks v. Ry., 64 Mo. 430; Burham v. Ry., 56 Mo. 338; Frick v. Ry., 75 Mo. 545. (4) When a railroad company runs cars in violation of law, it is negligence per se, and it is no excuse to show that by the exercise of extraordinary care and foresight, plaintiff might have avoided the injury. A person has a right to rely upon the presumption that railroads will operate their vehicles according to law, and if he uses ordinary care in regulating his conduct consistent with that presumption, he has done all that can be required of him. Kennayde v. Ry., 45 Mo. 255; Karle v. Ry., 55 Mo. 476; Ernst v. Ry., 35 N. Y. 9; Newson v. N. Y. Ry., 29 N. Y. 390. (5) Defendant's refused instructions were properly refused. Brown v. Ry., 50 Mo. 461; Isabel v. Ry., 60 Mo. 475. (6) In passing upon a demurrer to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence. Buesching v. St. L. Gas Light Co., 73 Mo. 231; Wilson v. Board of Ed., 63 Mo. 137.

Bennett Pike for respondent.

(1) The plaintiff was not entitled to recover. It was his duty, when about to cross the railroad track, to have looked and listened for an approaching train. Yorton v. Ry., 45 N. Y. 662; Fletcher v. Ry., 64 Mo. 484; Morris, etc., v. Haslon, 4 Vroom, 149; Runyon v. Central Ry., 1 Dutch. 357; Chicago & Rock Island Ry. v. Still, 19 Ill. 508; Chicago & Alton Ry. v. Gutzner, 48 Ill. 74; North Pa. Ry. v. Heilman, 49 Pa. 62; The Bellefontaine Ry. v. Hunter, 33 Ind. 336. (2) A failure to ring the bell, or to comply with the requirements of the ordinance read in evidence, does not raise the presumption that they were the cause of the injury. If the plaintiff, without signals, might, with care, have seen the moving car, or known it was approaching, he cannot recover. Galena & Chicago Union Ry. v. Loomis, 13 Ill. 548; Chicago & Miss. Ry. v. Patchin, 16 Ill. 198; Galena & Chicago Union Ry. v.______, 22 Ill. 264; Butterfield v. Ry., 10 Allen, 532; Leduke v. St. L., I. M. & S. Ry., 4 Mo. App. 488-490; Lenix v. Mo. Pac. Ry., 76 Mo. 86; Powell v. Mo. Pac. Ry., 76 Mo. 80; Bell v. Ry., 72 Mo. 50; Wallace v. Ry., 74 Mo. 594. (3) The instructions given for plaintiff were erroneous. Price v. Ry., 72 Mo. 414; Zimmerman v. Ry., 71 Mo. 491; Yarnell v. Ry., 75 Mo. 583. (4) The seventh instruction asked by defendant should have been given. For it makes no difference how negligent may have been the conduct of defendant's employes, in respect to the case in question, if plaintiff's negligence directly contributed to his injury, he cannot recover, unless the said employes discovered the negligence of plaintiff, in time to prevent the injury, by the use of ordinary care. Cooley on Torts, 674; Burham v. St. L. & I. M. Ry., 56 Mo. 338; Balt. & Ohio Ry. v. State, 33 Md. 542-554. (5) The verdict was so grossly excessive as to imply misapprehension, on the part of the jury, as to the lawful object of damages in such a case. Sawyer et al. v. H. & St. J. Ry., 37 Mo. 265; Clapp v. Hudson River Ry., 19 Barb. 462; Collins v. Alb. & Schenec. Ry., 12 Barb. 492; Sweeney v. Old Col. & N. P. Ry., 12 Allen, 368.

RAY, J.

This is a suit by plaintiff for negligence by defendant's servants in causing a freight car to be detached and “kicked or shunted” by a locomotive along its track, across and along Main street, in the city of St. Louis, at a greater rate of speed than six miles an hour, and without any person on said car in control of the same, and without any light being placed thereon, or any bell being run, or any signal given of its approach, in violation of an ordinance of said city, requiring, in such case, the ringing of a bell, the placing of a brakeman on the end of the car furthest from the engine, to give danger signals, and restricting the speed of trains within the limits of the city to a velocity not greater than six miles an hour; that in consequence of such negligent and careless conduct of said servants and employes, in permitting, or causing said car to run as aforesaid, plaintiff was knocked down in attempting to cross the track of said railroad, and was permanently injured in his leg, arm and head, etc. Defendant denied the negligence charged, and set up contributory negligence on the part of plaintiff. There was a denial of the contributory negligence.

Upon the trial of the cause in the circuit court, plaintiff had a verdict and judgment in his favor for $6,500, from which the defendant appealed to the court of appeals, where the judgment was reversed, and cause remanded. From this judgment of the court of appeals the plaintiff has appealed to this court. The general features of the case, and the peculiar circumstances under which plaintiff was injured, are, perhaps, sufficiently set out in the opinion of that court (see 10 Mo. App. 531), and we need not re-state them. We adopt and approve the views expressed by the court of appeals, as to the negligence of the defendant upon this occasion. We think nothing need be added in this behalf. That court then says: “The only question in the case is whether the plaintiff was guilty of contributory negligence and whether this was shown with such conclusiveness as required the court to take the case from the jury.” The court of appeals was of opinion that the plaintiff's contributory negligence was thus conclusively shown, and that the trial court erred in failing to give the instruction in the nature of a demurrer to the evidence, and for this reason alone reversed the judgment, and remanded the cause. The court, in its opinion, says that “it appears from the testimony of the plaintiff himself, that he did not look or listen for approaching cars before attempting to cross the track.” The evidence of the plaintiff in...

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