Mockowik v. Kansas City

• Citation: 94 S.W. 256,196 Mo. 550
• Parties: MOCKOWIK, Appellant, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY
• Decision Date: 30 May 1906
• Court: United States State Supreme Court of Missouri

94 S.W. 256

196 Mo. 550

MOCKOWIK, Appellant, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY

Supreme Court of Missouri, Division One

May 30, 1906

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

Grant Watkins, C. F. Strop and Eugene Silverman for appellant.

(1) The second instruction given for defendant which told the jury that defendant had a right to operate its trains at ten miles per hour was erroneous. (a) Because the ten-mile ordinance on its face does not purport to cover that portion of the track where plaintiff received his injuries. Therefore, the general ordinances prescribing five miles per hour, and also the special ordinance granting the right of way at the place of the accident and limiting the rate of speed to five miles per hour, were in force and should have controlled the rate of speed of defendant's trains at the point of accident. (b) Because even though the ten-mile ordinance was intended to regulate the speed of defendant's engines at the point of the injury, yet said ordinance was void and was repealed by the general ordinances of the city thereafter passed regulating the speed of engines and limiting the same to five miles per hour, and even if not repealed was void because in conflict with the general ordinances of the city. Sluder v. Railroad, 189 Mo. 107; City v. Tate, 130 Ill. 247. (2) The correct rule is that plaintiff has a right to rely upon the fact that the ordinances will be complied with and to regulate and govern his conduct accordingly, and the failure to comply with the ordinances is negligence. Riska v. Railroad, 180 Mo. 195; Weller v Railroad, 164 Mo. 180; Sluder v. Railroad, 189 Mo. 107.

O. M Spencer, R. E. Culver and H. J. Nelson for respondent.

(1) The court did not err in instructing that the engine had a right to run at a speed of ten miles per hour. (a) Because the special ten-mile ordinance related to running of engines on defendant's track at point of accident. (b) Because there is no evidence that the general speed ordinance was passed after the special ten-mile ordinance, and it was not so passed, but even if it had been it would not operate as a repeal of defendant's special speed ordinance. Reischenberg v. Railroad, 161 Mo. 85; Campbell v. Railroad, 175 Mo. 177. (c) Anyhow, plaintiff was guilty of wantonness in stepping immediately in front of the moving engine, and speed was immaterial. Moore v Railroad, 176 Mo. 544. (2) Plaintiff's own negligence barred a recovery upon any theory. (a) Because he saw the engine and went onto the track. Skipton v. Railroad, 82 Mo.App. 134; Fanning v. Railroad, 103 Mo.App. 151. (b) Because he stepped on the track immediately in front of the engine. Moore v. Railroad, 176 Mo. 544; Boyd v. Railroad, 105 Mo. 381. (c) Because he was guilty of wantonness and cannot recover even on "last-chance" doctrine. Moore v. Railroad, 176 Mo. 544; Ross v. Railroad, 88 S.W. 146. (d) The verdict was therefore for the right party, and must be affirmed, even if there were errors in the instructions. Moore v. Railroad, 176 Mo. 545.

LAMM J. Brace, P. J., and Valliant, J., concurring; Graves, J., not sitting.

OPINION

LAMM, J.

From a verdict against him in an action for personal injuries alleged to have been caused by the negligence of defendant in operating a switch engine, plaintiff appeals.

The cause was heard on an amended petition, charging defendant with operating an engine on Fifth street in the city of St. Joseph at a rate of speed denounced by ordinance and in violation of an ordinance requiring a bell to be sounded continuously on a moving locomotive in the city limits, and the rear end of all tenders supplied with a lantern or other light at night-time. It is alleged that defendant negligently ran its engine at twenty-five miles an hour when the ordinance prescribed a speed rate of not exceeding five; that, being dark at the time, no light was displayed on the end of the engine facing plaintiff and, hence, he could not tell whether the engine was moving or standing still; that no bell was rung or whistle sounded, nor was any other warning given; that defendant negligently failed to keep a watch for persons crossing its track at the point in question and failed to stop or attempt to stop said engine and prevent injuring plaintiff when they saw, or by the exercise of ordinary care, could have seen him on said railroad track and in a position of peril when more than two hundred feet from him and could have stopped said engine and prevented his injury if it had exercised ordinary care. It is averred, furthermore, that defendant kept a flagman at the point whose duty it was to flag trains and warn pedestrians walking across its tracks of approaching trains and engines, and said flagman negligently failed to give plaintiff any warning of the approach of said engine, and that plaintiff by said negligence was injured.

The trial began and proceeded under a petition drafted on the theory there was no public street at the point of the accident but that there was a well-marked and well-used path there leading to the Missouri river bridge, the Krug packing house and elsewhere, and for many years many persons with the knowledge and consent of defendant were licensed to use said pathway as pedestrians and did constantly use the same in crossing and recrossing defendant's tracks and that said path crossed the line of what would have been Fifth street if it had been projected farther north. At the trial, however, the petition was amended so as to aver that the point of the accident was in Fifth street itself, and the trial concluded on the latter theory.

The answer admitted defendant's incorporation, denied the other allegations and pleaded plaintiff's contributory negligence.

The replication tendered the general issue on new matter.

The facts uncovered below are as follows:

Fifth street runs north and south, and defendant maintains two main-line tracks there side by side, called herein the east and the west track, on the east one of which the accident happened. At the locus the Rock Island railroad crosses defendant's two tracks from east to west at right angles. Side by side with the Rock Island track, and a little south of it, the Grand Island railroad crosses defendant's tracks at right angles. This immediate spot is called the "crossing." The rectangle made and bounded by these four tracks is called the "box." To the northeast of this box, in the angle made by the east rail of the east track of defendant with the north rail of the Rock Island track, is a little house, a few feet from either track, known as a watch-house, switch shanty, or (in railroading idiom) "the dog house." This switch shanty was used by a flagman in the employ of defendant. Defendant's east track is on a down grade from north to south -- so much so that cars or engines would run of their own momentum from, say, two blocks north, to several blocks south of the switch shanty. Because of this switch shanty and certain buildings and obstructions north of it, a person approaching the crossing from the east, until past the shanty, could not be seen by those running an engine when at a distance north of the crossing on the east track, nor could such person, so fixed, see aught of the engine except its smoke and smokestack. One of plaintiff's witnesses, east of the switch shanty and a few feet behind plaintiff, looked to the northwest and saw the smoke and smokestack of the engine in question when it was about one hundred and fifty feet north of the crossing and says at that time he could see it was running south.

At a point, estimated at about one hundred and fifty feet north of the switch shanty, was a "stop-post" where engines going south were required to stop and to call the crossing signal with two blasts of the whistle. The flagman, if the track be clear, then gave the crossing signal and the engine came on over the crossing.

At the very time of plaintiff's injury, it is agreed on all sides that a freight train, headed south on defendant's west track, was either passing the crossing with its rear end not quite over, or else the rear end had just gone by -- plaintiff's witnesses say the latter, defendant's the former.

The morning of December 4, 1900, was frosty and frost lay on the rails. A few minutes before seven o'clock (the time of the accident), it is described by one of plaintiff's witnesses as a dull-looking morning, and by plaintiff himself as "a little dark." It may be said to have been at that uncertain time of dawn between daybreak and sunup at that season of the year, aptly described by the witnesses as not very dark and not yet day -- as between daybreak and day. The condition of the light is further characterized by the fact that headlights were still being used on engines and lanterns for train signals, and yet it was light enough to see an object as large as an engine with the naked eye distinctly two blocks away. For instance, Miss Cook, one of plaintiff's witnesses, says there was no light displayed on the front end of the engine striking plaintiff, and yet she saw the engine plainly two blocks away as she was walking between the east and west tracks facing it herself going north at an hour when workmen were wending their several ways to their places of daily toil and she could tell it was moving. Plaintiff was fifty years old, and testified he had good eyesight, only used glasses for reading, and had good hearing. He worked at a packing house situate southwest of said crossing and had worked there for a score of years. The testimony shows that at this early morning hour, trains and engines were constantly passing the crossing and plaintiff knew the fact and was familiar with the crossing, having long...