Bell v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1885
• Citation: 86 Mo. 599
• Parties: BELL et al. v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

86 Mo. 599

BELL et al.

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Linn Circuit Court.--HON. G. D. BURGESS, Judge.

REVERSED.

G. W. Easley and Smith & Krauthoff for appellant.

(1) The plaintiff, Jno. A. Bell, being a party jointly and equally interested with his wife (R. S., 1879, sec. 2121), in the judgment, was, by the marital relation, disqualified from being a witness. This was undoubtedly true at common law. Best on Ev. (Chamberlayne's Ed.) 131, note b, 4; 2 Kent's Com. 179; 1 Greenleaf's Ev., sec. 334; 3 Bacon's Ab. Evidence A. 1; Paul v. Leavitt, 53 Mo. 595; Haerle v. Kreihn, 65 Mo. 205. The reason for the exclusion of husband and wife at common law, being social policy and not interest, statutes removing the disqualification arising from interest do not remove the disability arising from the marital relation. 1 Whart. on Ev., sec. 430; Lucas v. Brooks, 18 Wall. 452; Kelly v. Drew, 12 Allen 109; In re David W. Jones, 6 Bissell, 69; Stanley v. Stanton, 36 Ind. 445; Hasbrook v. Vandervort, 9 N. Y. 153; Dawley v. Ayers, 23 Cal. 108; Gee v. Scott, 48 Texas, 510; Cram v. Cram, 33 Vt. 15; Mitchinson v. Cross, 58 Ill. 366; Kelly v. Proctor, 41 N. H. 139. (2) The deceased was guilty of the “grossest negligence beyond all dispute, a negligence difficult to be accounted for, assuming him to have been a young man of ordinary intelligence and without any defect of sight and hearing, and there is no proof that he was not.” Bell v. Hannibal, etc., Ry. Co., 72 Mo. 59. If the deceased had looked or listened he could have seen or heard the train and avoided the injury. That he did not do so is such contributory negligence as prevents a recovery; and the facts being undisputed there was nothing to submit to the jury, and defendant's demurrer to the evidence should have been sustained. Powell v. Mo. Pacific Ry., 76 Mo. 80; Lenix v. Ry. Co., 76 Mo. 86; Baltimore, etc., Railroad v. State, etc., 65 Md. 648; 4 A. & E. R. R. Cas. 574; Lake Shore, etc., Ry. Co. v. Hart, 87 Ill. 529; s. c., 19 Am. Ry. Rep. 249; Harlan v. St. Louis, K. C. & N. Ry. Co., 65 Mo. 22; 64 Mo. 480; Railroad Company v. Huston, 95 U. S. 697; Stillson v. H. & St. Jo. Ry. Co., 67 Mo. 676; Finlayson v. Ry. Co., 1 Dill. 579; Fletcher v. Ry. Co., 64 Mo. 484; Field on Damages, p. 164, sec. 173; Blaker's Exr'x v. Ry. Co., 18 Am. L. R. (N. S.) 562; Salter v. Ry. Co., 75 N. Y. 273. “So it is held gross negligence for a person to stop on a railroad track at the usual time for the passage of a train, and allow his attention to be diverted in another direction from the cars until he is thrown from the track by a collision.” Weeks' Dam. Abs. Inj. 243; Ry. Co. v. Knowles, 30 Conn. 313. (3) Plaintiff's sixth instruction is erroneous; it ignores Bell's contributory negligence and directs a verdict notwithstanding such negligence. The rule sought to be invoked by this sixth instruction, can have no application to a case like this where the negligence of the injured party continues up to and commingles with the negligent act of the defendant in producing the injury. Cagney v. H. & St. Jo. Ry. Co., 69 Mo. 424; Zimmerman v. H. & St. Jo. Ry Co., 71 Mo. 484; O'Brienv. McClinchey, 68 Me. 552; Moak's Underhill on Torts, 283; Murphy v. Dean, 101 Mass. 466; Pierce on Railroad, 327; Big. Lea. Cas. on Torts, 725; Nelson v. A. & P. Ry. Co., 68 Mo. 593; Lucas v. New Bedford, etc., Ry. Co., 6 Gray, 64; Waite v. North Eastern Ry. Co., 9 El. & Bl. 719; O'Donnell v. Mo. Pacific Railroad, 7 Mo. App. 190. (4) Contributory negligence is a complete defence to an action for a merely negligent injury. It is only when the injury sued for is alleged, in terms or substance, to have been wilfully committed, that contributory negligence ceases to be a defence. Pa. Co. v. Sinclair, 18 A. L. R. (N. S.) 378; Terre Haute, etc., Railroad v. Graham, 12 A. & E. Ry. Cas. 77. (5) The sixth instruction given for the plaintiff should have been refused because the pleadings did not raise the question of negligence after becoming aware of the danger in which the deceased was placed. O'Donnell v. Mo. Pacific Ry., 7 Mo. App. 190; Zimmerman v. Hannibal, etc., Ry. Co., 71 Mo. 484; Duncan v. Fisher, 18 Mo. 403; Harris v. Railroad, 37 Mo. 307; Link v. Vaughn, 17 Mo. 585; Newham v. Kenton, 79 Mo. 382. (5) There is no affirmative evidence of the want of care on the part of the engineer, after discovering Bell's danger, which caused the accident and there being no presumption of such want of care the instructions and verdict are without evidence to support them. Baulec v. Railroad, 59 N. Y. 356.

S. P. Huston and A. W. Mullins for respondents.

(1) Respondent, John A. Bell, was a competent witness. He is made so by our statute. R. S., sec. 4010; Steffen v. Bauer, 70 Mo. 399, 404-5; Cooper v. Ord, 60 Mo. 420; Haerle v. Kreihn, 65 Mo. 202, 205-6; Fugate v. Pierce, 49 Mo. 441; Buck v. Ashbrook, 51 Mo. 539; Wood v. Broadley, 76 Mo. 23; Schouler on H. & W. sec. 85. (2) The rule of law is well settled in this court that if an injury results to a person on a railroad track by reason of such person being struck by a locomotive or train, caused by the negligence of the servants or employes of the railroad company in charge of the train, without concurring negligence on the part of the injured person, the railroad company is liable. And in case the injured person was negligent, or even a trespasser on the track, yet, if after discovering the danger and peril in which his negligence had placed him, or after a proper observance of their duties would have informed them of his peril, the employes in charge of the train fail to use ordinary care, skill and caution to prevent injury, and an injury thereby results, the railroad company is liable. Morrissey v. Wiggins Ferry Co., 43 Mo. 380; Brown v. H. & St. Joe Ry. Co., 50 Mo. 461; Kennedy v. N. M. Ry. Co., 36 Mo. 351; Burnham v. St. L. & I. M. Ry. Co., 56 Mo. 338; Meyers v. C., R. I. & P. Ry. Co., 59 Mo. 223, 231; Karle v. K. C., St. J. & C. B. Ry. Co., 55 Mo. 476; Isabel v. H. & St. Joe Ry. Co., 60 Mo. 475; Harlan v. St. L., K. C. & N. Ry. Co., 65 Mo. 22; Bell v. H. & St. Joe Ry. Co., 72 Mo. 50. (3) The instructions given for the plaintiff are in precise accord with the very letter and spirit of the opinion of this court when the cause was here before. 72 Mo. 50. (4) The evidence was sufficient to require the submission of the case to the jury, and the court, therefore, did not err in refusing defendant's demurrer to the evidence. The train, as plainly appears from the evidence, was run at a reckless and very dangerous rate of speed, considering the time and place, when it came into the town, and this, too, without announcing its approach by the giving of any signals or ringing of the bell, aside from the station whistle half a mile from the town; and that although the engineer came in sight of plaintiffs' son when at least six hundred feet from him, no alarm signal was even given nor the bell rung until the train had approached to within one hundred and sixty to two hundred and twenty feet of him, and nothing whatever appears to have been done up to that time, nor subsequently until after the boy was struck and killed, to stop the train, put it under control, or slacken its speed, notwithstanding the engineer saw that the boy appeared to be, as he was, wholly unaware of the coming of the train. These facts and the attending circumstances tend to show the grossest negligence on the part of the engineer in the running and management of, or rather failure to manage his train, and his failure to duly notify or attempt to notify the deceased of the coming of the train, and his failure to duly resort to any of the ordinary means to try to avoid the calamity. Pa. Railroad v. Lewis, 79 Pa. St. 33; C. & A. Ry. Co. v. Engle, 84 Ill. 397; Pryor v. Railroad, 69 Mo. 215, 218; Massoth v. Canal Company, 64 N. Y. 524; Wharton on Negligence, sec. 388, and note 5 (2 Ed.); 1 Thompson on Negligence, p. 418, sec. 3, and cases cited in note 9; Myer v. Railroad, 2 Neb. 319; Hagan v. Railroad, 5 Phila. (Pa.) 179; Hicks v. Railroad, 64 Mo. 430; McPheeters v. H. & St. Jo. Ry. Co., 45 Mo. 22, 24; Frick v. Railroad, 75 Mo. 595. (5) It is not the law that it is only when the injury sued for is alleged in terms or substance to have been wilfully committed that contributory negligence ceases to be a defence. Hicks v. Railroad, 64 Mo. 436; Isabel v. Railroad, 60 Mo. 480; Maner v. Railroad, 64 Mo. 267. (6) The pleadings in this case are the same as when it was here on a former appeal and the petition is sufficient to authorize the admission of plaintiffs' evidence and the giving of their instructions. Mack v. Railroad, 77 Mo. 232. (7) It was the duty of the engineer to keep a look out on the track. Kelley v. Railroad, 75 Mo. 140; Frick v. Railroad, 75 Mo. 595.

RAY, J.

This case has been once before in this court, and is reported in 72 Mo. 50. It was then reversed and remanded for erroneous rulings upon instructions, and upon a subsequent trial in the circuit court again resulted in a verdict and judgment for plaintiffs, from which defendant appealed. The statement of the case in the former decision was based in part upon evidence introduced by the defendant, especially that of the engineer; but the defendant introduced no evidence on the trial, now under review. With this modification and qualification we deem it unnecessary to make any further statement as to the general facts of the case, and the circumstances under which the boy was killed.

The main grounds relied upon for a reversal of the present judgment grew out of the admission of the plaintiff, Jno. A. Bell, as a witness in the cause; the contributory negligence of the boy and the action of the court in giving and refusing instructions in regard thereto, and especially its said action in giving for plaintiff the following instruction number six:

“6. The jury are instructed that if they...