Bailey v. Citizens' Ry. Co.

• Decision Date: 14 July 1899
• Citation: 152 Mo. 449,52 S.W. 406
• Court: Missouri Supreme Court
• Parties: BAILEY v. CITIZENS' RY. CO.

52 S.W. 406

152 Mo. 449

BAILEY v. CITIZENS' RY. CO.

Supreme Court of Missouri.

July 14, 1899.

OPERATION OF STREET RAILROADS — ACTION BY CONDUCTOR FOR INJURIES — CROSSING — INSTRUCTIONS — QUESTIONS FOR JURY.

1. In an action by a cable-car conductor of a street-railway company against another street-railway company for injuries caused by the displacement of the slot rails at a crossing of the two railways, alleged to have resulted from the latter company's negligence while making repairs at the crossing, it appeared that the crossing, though dangerous, had been used with safety for two weeks while being repaired; that the rapid running of cars over it was liable to cause a displacement; that both companies had notified plaintiff and his gripman to run slowly over the crossing; that the gripman acted under plaintiff's orders, and, though both knew it was dangerous, they failed to heed such notice. The court instructed the jury that even if they found there was negligence on the part of the gripman in running the train at a reckless rate of speed over the crossing, and that the same caused or contributed to the displacement, yet such finding could not prevent a recovery unless they found that the gripman was acting under plaintiff's orders. Held that, in the absence of any direction therein requiring the jury to find concurrent negligence on the part of defendant, such instruction was erroneous, as it virtually directed a verdict for plaintiff even if the jury found that the sole cause of the accident was the gripman's negligence.

2. In an action by a conductor in charge of a cable car of a street-railway company against another street-railway company for injuries caused by the displacement of the slot rails at a crossing, alleged to have resulted from the latter company's negligence while making repairs at the crossing, it appeared that it had exercised due care in making such repairs; that the rapid running of the train in charge of plaintiff was liable to cause a displacement of the slot rails; that plaintiff and his gripman knew the repairs were being made and that the crossing was dangerous, and that they had been notified to run slowly over it. The court instructed the jury "that if it appear in the evidence that the repairs were made in such manner that the safe or unsafe condition of such construction was not susceptible of being observed by plaintiff and his gripman, and that the manner in which the work was done was exclusively within the knowledge and under the control of defendant's workmen, and that the accident was one not liable to happen, except from want of ordinary care, then the law presumes that the accident was caused by the negligence on the part of defendant's workmen, and the burden of proof rests upon defendant to prove by a preponderance of evidence that said accident happened from some other cause, failing in which the verdict must be for plaintiff." Held, that defendant's negligence could not be presumed, under the circumstances, but was a question of fact for the jury, and such instruction was therefore erroneous.

Robinson, J., dissenting.

In banc. Appeal from circuit court, St. Charles county; E. M. Hughes, Judge.

Action by William F. Minster against the Citizens' Railway Company. From a judgment for plaintiff, defendant appeals. George W. Bailey, administrator of plaintiff, was thereafter substituted as plaintiff. Reversed.

Smith P. Galt, for appellant. Geo. W. Bailey and Daniel Dillon, for respondent.

GANTT, C. J.

Action for damages growing out of personal injuries. The petition alleges "that the defendant is, and at the times mentioned was, a corporation, by virtue of the laws of Missouri, and used and operated a certain street railway and crossing along Easton and Franklin avenues; that the St. Louis Cable & Western Railway used at said times a certain railway, which was crossed by defendant's railway at or near the junction of Easton and Franklin avenues, in St. Louis; that on the 26th day of August, 1889, the plaintiff was conductor of one of the cable cars of the St. Louis Cable & Western Railway going west at the junction of said tracks; that, as the grip which was drawing the car on which plaintiff was conductor was passing said crossing, the grip of said car ran against the slot, thereby throwing plaintiff against a seat of the car on which he was conductor, and dislocated his right shoulder, and otherwise bruised and injured plaintiff. And plaintiff avers that said grip was caused so to run against said slot and injure the plaintiff by the negligence of defendant's servants, in that they displaced the slot of the St. Louis Cable & Western Railway so as to obstruct the passage of the grip attached to the grip car of plaintiff's train; that defendant, by its servants, was at said time engaged in repairing said crossing, and negligently and carelessly displaced the slot of the St. Louis Cable & Western Railway track so as to obstruct the passage of the grip on said track, and defendant's said servants also negligently failed to give any notice to the persons in charge of the St. Louis Cable & Western cars of the fact of such obstruction, whereby said grip was caused to strike against the side of said slot and injure plaintiff as aforesaid; that, by his injury so sustained, plaintiff has suffered and will suffer great pain of body and mind, has been permanently disabled from labor and crippled for life, has incurred large expense for medicines, medical attention, and nursing, and is damaged in the sum of ten thousand dollars, for which sum he prays judgment." The answer is a general denial, and a plea of contributory negligence by plaintiff and those operating his train with him. Reply, general denial.

The testimony on the part of the plaintiff tended to establish that the crossing of the St. Louis Cable & Western Railway and the Citizens' Railway at Twenty-Eighth street and Franklin avenue, commonly called the "Sheridan Exchange," in the city of St. Louis, had become out of repair by reason of the jarring of the trains of both of said railways over it, and, as a consequence, a vibration of the tracks ensued when trains passed over said crossing. It became necessary to repair said crossing, and for two weeks prior to August 26, 1889, the defendant company had been engaged in putting in a new crossing at said junction. To do this, it was necessary that the crossing should be dug out underneath the tracks, and heavy timbers put under to prop the tracks; and this had been done, and the work was progressing, when the plaintiff's train was wrecked on said crossing. Plaintiff, as he alleges, was a conductor at that time on the train of the St. Louis Cable & Western Railway, and had been so employed for a long time prior thereto. His train consisted of a grip car and a trailer. James V. Aiken was his gripman. Among the printed rules of the St. Louis Cable & Western Railway for the government of its employés which were furnished to plaintiff and all other employés were these: "(5) Charge of Car. They (conductors) will have charge of their cars while on duty, will start from the stand when directed by the starter, and positively avoid all `laying' or `running' while upon the route." "(39) Conductors and gripmen will use every possible precaution to avoid accidents." "(17) Cross Chains. Conductors must keep cross chains on both ends of grip car securely hooked." "(19) Speed. They will keep on time as nearly as possible, and see that their gripman properly performs his duties; that they run their cars slowly around all curves and across all railroad tracks which intersect the route of this railway. * * * The maximum rate of speed between * * * Garrison avenue and Vandeventer must be 8 miles per hour." In addition to the general directions, a special notice was given to all the conductors and gripmen of the St. Louis Cable & Western Railway that their trains must be run very slowly over this particular crossing while these repairs were being made, and there was evidence that the workmen of defendant in charge of the repairs had on several occasions (indeed, on the forenoon of the accident) warned Aiken, the gripman, that he must run slowly over this crossing, and that he had replied he must make his time. The evidence tended, also, to prove that it was within the power of the gripman to regulate the speed of the train "just barely moving up to 8 miles an hour." Notwithstanding these printed rules, and plaintiff's evidence on the first trial that he had charge of the train, he testified on the last trial that he had no control of the speed of his train. The evidence also tended to prove without contradiction: That up to the time of this accident, and while these repairs were going on, for two weeks, the trains had proceeded safely over this crossing. That plaintiff's own train had made on the day of the accident five trips over this crossing. About noon of that day, as the plaintiff's train was going west, it approached this crossing, and stopped 100 or 150 feet east of it, to let one of the Cable & Western cars from the west come across; and, when it had crossed, his train started up at about 3½ or 4 miles an hour, and at that speed ran upon the crossing, and it came to a sudden stop, by which plaintiff, who was on the rear platform of the trailer, was thrown forwards with such violence that he fell against the back of the hind seat, which leaned towards him at a small angle, and which back seat was constructed of hickory or ash, or other hard, tough wood, 6 inches broad and 1 inch thick, and broke said board into two pieces, and dislocated plaintiff's arm at the shoulder. Investigation disclosed that the grip was pressing against the side of the slot rail, right at the crossing of the slots of the track of the Cable & Western with the Citizens' Railway, and that the force had been so great that this grip, which was of steel, three-eighths of an inch thick and 18 inches...