Drain v. St. Louis, Iron Mountain & Southern Ry. Co.
Decision Date | 31 October 1885 |
Citation | 86 Mo. 574 |
Court | Missouri Supreme Court |
Parties | DRAIN, 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:
The following is instruction number seven, refused for defendant, and referred to in the opinion of the court:
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.
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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