Kelly v. Chicago & Alton R.R. Co.

Decision Date31 October 1885
Citation88 Mo. 534
PartiesKELLY, Appellant, v. THE CHICAGO & ALTON RAILROAD COMPANY.
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Wash Adams for appellant.

(1) The court erred in permitting the witness, Melver, on behalf of respondent, to testify to a conversation occurring between him and appellant's driver after the injury had happened. It was not a part of the res gestæand was incompetent. Adams v. Ry., 74 Mo. 553; McDermott v. Ry., 73 Mo. 516. (2) The court committed error in refusing to give the first and third instructions asked by appellant. Harlan v. Ry., 65 Mo. 25; Meyers v. Ry., 59 Mo. 223; Kelly v. Ry., 75 Mo. 138; Singert v. Ry., 14 Rep. 405. (3) The court erred in giving defendant's instruction which told the jury that “if plaintiff's servant in charge of the wagon and team might have seen or heard defendant's approaching train and failed to do so by his own want of care and attention, plaintiff could not recover.” Plaintiff's driver was only required to exercise that degree of care which men of ordinary prudence and caution are accustomed to exercise under similar circumstances. Kennedy v. Ry., 36 Mo. 351; Ry. v. Moore, 24 N. J. L. 824; Imp. Co. v. Stead, 95 U. S. 161; Ry. v. Crawford, 24 Ohio St. 639; Ry. v. Stout, 53 Ind. 143; Ry. v. Smith, 16 Rep. 345; Wharton's Law of Negligence, sec. 48. The instruction was misleading and otherwise objectionable. (4) The instruction given by the court of its own motion was likewise erroneous. It was equivalent to saying, plaintiff could not recover unless the driver stopped the team before venturing to cross the railroad track. The duty of stopping, absolutely, should not be crystalized into a “procrustean rule.” Kennedy v. Ry., 36 Mo. 363; Plummer v. Ry., 14 Rep. 368; Ry. v. Graves, 69 Texas, 339; Nehrbos v. Ry., 62 Cal. 320; Kelly v. Ry., 29 Minn. 1; Davis v. Ry., 47 N. Y. 402; Kellogg v. Ry., 79 N. Y. 76; Duffy v. Ry., 32 Wis. 274; Eilert v. Ry., 48 Wis. 608; Bunting v. Ry., 14 Nev. 358.

Lathrop & Smith for respondent.

(1) The demurrer to evidence should have been sustained, and the judgment being for the right party, this court will not reverse, even if it should be of opinion that errors were committed in the admission or exclusion of evidence, or the giving or refusing of instructions. Harlan v. Ry., 64 Mo. 480; Fletcher v. Ry., 64 Mo. 484; Whar. on Neg., sec. 384; Shear. & Redf. on Neg., secs. 488, 488 a; Gorton v. Ry., 45 N. Y. 662; Zimmerman v. Ry., 71 Mo. 476; Henze v. Ry., 71 Mo. 636; Purl v. Ry., 72 Mo. 168; Turner v. Ry., 74 Mo. 602; Powell v. Ry., 76 Mo. 80; Lenix v. Ry., 76 Mo. 84. (2) Defendant's evidence showed that its servants used every means in their power to prevent the injury after they became aware of the danger in which plaintiff's property had been placed. Hence, plaintiff had no right to recover upon that theory, and defendant's right to have its demurrer to evidence sustained was not affected. Harlan v. Ry., 65 Mo. 22; Moody v. Ry., 68 Mo. 470; Purl v. Ry., supra. (3) The questions asked by plaintiff's counsel, and excluded by the court, were all improper. They simply called for the opinions of the witnesses. The office of witnesses is to detail facts; that of the jury to draw conclusions from those facts. (4) The conversation between plaintiff's driver and the brakeman happening as it did almost at the very time of the accident and in full view of the damaged property, was competent as part of the res gestae. Brownell v. Ry., 47 Mo. 239; Mosley v. Ins. Co., 8 Wall. 397; Ry. v. Coyle, 55 Pa. St. 402. (5) Mann, the fireman, testified that he called Mead's, the engineer's, attention to the fact that he was ringing the bell. Mead was permitted to testify that he remembered Mann's calling his attention to that fact. In this there was no error. The matter testified to by Mead was a “verbal fact,” and not hearsay. (6) Plaintiff's refused instructions were all properly refused. The first left to the jury to determine whether plaintiff's driver was exercising the ordinary care of a prudent man, without having the court instruct them as to what care a prudent man was obliged to take. Zimmerman v. Ry., supra. The second instruction was an indirect attempt to have the court comment on the weight to be given to the evidence and was not justified by the conduct of any of the witnesses on the stand or their manner of testifying. The third instruction was properly refused, because it was not in the form required by the decisions of the Supreme Court, and because there was absolutely no evidence to support it. Harlan v. Ry., supra. (7) The instructions given for defendant and that given by the court of its own motion were in exact accordance with the law as the cases already cited conclusively show.

RAY, J.

This action was brought by plaintiff to recover damages for killing a horse and injuring a mule and harness and wagon by defendant's cars at the crossing of Lydia avenue, over the railroad of defendant, in Kansas City, Missouri. The negligence charged in the petition was a failure to ring the bell within eighty rods of the crossing, and running the train at a speed in excess of six miles per hour, contrary to the city ordinance. The answer was a general denial and a plea of contributory negligence.

Evidence offered by plaintiff for the alleged purpose of showing the connection between the failure to ring the bell, and the injury to the wagon and team, and opinions of the witnesses in that behalf were excluded by the court. The court also permitted defendant's brakeman to testify over plaintiff's objection to a conversation which he had with the driver of the plaintiff after the accident had happened and the train stopped, to the effect that he was not looking, noticing or thinking about the train. At the close of the plaintiff's evidence the court refused a demurrer thereto. Under the instructions given and the evidence in the cause the jury found a verdict for defendant, on which judgment was entered, and plaintiff has appealed therefrom to this court.

We will first give some of the facts which we understand to be undisputed, and others as to which there is a conflict, more or less marked, in the evidence.

Lydia avenue, where the collision occurred, crosses a number of railroad tracks, including the main tracks of the defendant, and the Narrow Gauge Railroad, and several other switch tracks leading to the elevator. About eighty feet east of the crossing, defendant's side track (number one) connected with its main track, and some fifty feet still further east on this side track was the limit post, which marked the extreme point on the side track towards its western connection with the main track beyond which cars could not be placed without interfering with the passage of trains on the main track. On this side track and beyond the limit post thereon were, as is conceded, some box cars, the evidence being somewhat conflicting as to their number, and how far, if at all, they operated to obstruct the view of the driver as he approached the main track. Much of plaintiff's evidence as well as the entire evidence of the defendant in that behalf is to the effect that at a distance from the main track, variously estimated at from four or five to twenty-five or thirty feet, the driver in approaching would be able to see up the track to the east a distance variously estimated by the witnesses at from one or two hundred feet to a half or three-fourths of a mile. The map in evidence in the cause is, we believe, not questioned as to its general correctness, and an inspection of the same indicates, we think, that at a point somewhere between these distances thus estimated, a view could be had for some distance beyond said limit post at least. There is, however, evidence on the part of plaintiff that the box cars would not cease to be an obstruction to the view of the track in that direction until the driver arrived at or very close to the main track.

There is a marked conflict in the evidence as to whether the bell was ringing or not, but it is undisputed and conceded that the speed of the train at the time was in excess of six miles per hour, which was the maximum allowed in the city limits by the city ordinance, the estimate thereof by the witnesses ranging from ten or twelve to twenty or twenty-five miles per hour. It is conceded that the collision occurred about nine o'clock in the morning, the day being clear, and that the damage was done by one of defendant's regular passenger trains then due and arriving from the east.

It is also conceded that after passing the first track some one hundred and sixty or one hundred and eighty feet from main track, driver did not stop the team before entering upon the main track and that he did not see the train until the engine struck or was about to strike the team. The evidence also varies somewhat as to whether the team was struck by the pilot, or cow catcher, commonly so called, or some portion of the side of the engine. There is evidence to show that if the driver had stopped and listened he could have heard the train a good distance off, which indeed is, we think, an obvious and necessary inference, where there is no evidence that the wind is blowing so as to interfere, and nothing otherwise appears in the circumstances and locality to obstruct the sound. It is also undisputed that plaintiff's driver and his team were familiar with the crossing, having passed it several times every day for some time in hauling rock, and that he frequently on other occasions stopped the team at and between the various tracks to see if trains were coming, and to allow them to pass, as was also generally and often done by others as occasion required. Having proceeded thus far in the statement of the general facts and features of the case as shown by the evidence, we deem it important and necessary to give a summary of what the witnesses say as to the conduct of the driver...

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