Baker v. Kansas City, Fort Scott and Memphis Railraod Company

• Decision Date: 13 December 1898
• Citation: 48 S.W. 838,147 Mo. 140
• Parties: Baker et al. v. Kansas City, Fort Scott and Memphis Railroad Company, Appellant
• Court: Missouri Supreme Court

48 S.W. 838

147 Mo. 140

Baker et al. v. Kansas City, Fort Scott and Memphis Railroad Company, Appellant

Supreme Court of Missouri

December 13, 1898

Appeal from Henry Circuit Court. -- Hon. James H. Lay, Judge.

Plaintiff's instructions in this case were as follows:

"1. The court instructs the jury that if from the evidence you believe that the defendant, by its servants or employees, on or about the 9th day of October, 1898, cut a number of its cars loose from the rest of its train and permitted them to run at a dangerous rate of speed across the public highway just after the rest of the train had passed where defendant's railroad crosses said public highway, near the city of Rich Hill, in Bates county, Missouri, without a locomotive attached to said cars, and without giving any warning sufficient to notify persons approaching and about to pass over said crossing that said cars were coming, and in such manner as to endanger travelers along said highway, then such conduct constituted negligence on the part of said defendant railroad company. And if you further believe from the evidence that the plaintiff, Martha Baker, while passing along said highway, attempted to cross defendant's railroad, and while exercising the care and caution that a prudent person under like circumstances would have done, was struck and injured by the said cars of the defendant, run and managed in the manner aforesaid, then your verdict must be for the plaintiff."

Number 2 was as to the damages.

"3. The court instructs the jury that before you can find that the plaintiff, Martha Baker, was guilty of contributory negligence, it must be shown by the preponderance of all the evidence in the case."

The following instructions were given at the instance of the court:

"1. You are further instructed, that the law cast upon Martha Baker the duty, when approaching the railroad crossing, of looking and listening to discover approaching cars or trains if any, and she was bound to so look and listen to the extent that a prudent person, situated as she then was, would under the like circumstances have done; and if she failed so to do the plaintiffs can not recover unless it appears to the satisfaction of the jury from the evidence that her failure if any, to so look and listen, did not cause or contribute to the injury complained of, but that the accident and injury were caused wholly by negligence upon the part of defendant, as charged in the petition.

"In determining whether Martha Baker was prudent or careless, cautious or reckless, that is, whether or not she acted as a prudent person in her situation would have done, you may consider (if you find there was negligence in cutting the train and passing it in sections over the crossing, and that such negligence caused the injury complained of), what influence or effect, if any, the passing of the engine and attached part of the train in question as the same passed would have upon the mind and conduct of a prudent person placed as she then was."

Number 2 was as to credibility of witnesses.

"3. If the jury believe from the evidence that Mrs. Baker looked up the track west, at a point sufficiently near the main track to see the approaching cars in time to avoid being struck by them and, having seen the approaching cars, still hurried on in front of the same in an attempt to beat them over the crossing, and that a person of ordinary prudence would not have done so under similar circumstances, then the defendant is not liable to her for any injuries that may have resulted from the collision and you will find for the defendant."

The last instruction was number 17 asked by defendant, with the words, "and that a person of ordinary prudence would not have done so under similar circumstances" inserted by the court.

The court refused defendant's instruction numbered 13, which was as follows:

"13. If the jury believe from the evidence that Mrs. Baker, as she drew near the track on which the box cars were moving, saw them approaching in time to have stopped her team before she drove upon that track and to avoid being struck, then your verdict must be for defendant."

Affirmed.

Wallace Pratt and I. P. Dana for appellant.

(1) The issues in the case are limited to the express allegations of negligence made in the petition. Not only must defendant's acts be proved as charged in the petition, but there must also be proof that the acts were negligent and that they caused plaintiff's injury. Reed v. Railroad, 50 Mo.App. 506; Harlan v. Id., 65 Mo.22; Stepp v. Id., 85 Mo. 233; Stanley v. Depot Co., 114 Id. 606; Current v. Railroad, 86 Id. 62, 67; Harty v. Railroad, 95 Id. 368. (2) The coincidence of defendant's act and of plaintiff's injury did not prove or tend to prove that the act was negligent. Mathiason v. Mayer, 90 Mo. 585; Stepp v. Railroad, supra; Murray v. Railroad, 101 Mo. 236; Gurley v. Railroad, 104 Id. 233. (3) Even though negligence of defendant as charged in the petition caused the injury complained of, yet, if negligence on the part of plaintiff concurred therewith, no recovery can be had for such injury. Where the negligence of both parties concurs, the law allows neither a recovery. Craig v. Sedalia, 63 Mo. 420; Nolan v. Shickle, 69 Id. 340; Milburn v. Railroad, 86 Id. 109. (4) In the case at bar the question of whether or not defendant was negligent, and whether or not, if it was, such negligence caused plaintiff's injuries, were not submitted to the jury, but the court found both facts against defendant and so instructed the jury, although no act of defendant complained of was a violation of any statutory or municipal regulation, nor had any or all of such acts ever before been pronounced negligence per se. (5) But, in spite of the fact that the evidence showed or tended to show that plaintiff did two things, each of which this and other courts have repeatedly pronounced negligent per se, the trial court left it to the jury to say whether such acts were or were not negligent. (6) None of the questions raised by appellant on this, the second appeal in the case at bar, were adjudicated on the first appeal so that they can not be inquired into now. Boone v. Shackleford, 66 Mo. 493; Bird v. Sellars, 122 Id. 231; Wernse v. McPike, Adm'r, 100 Mo. 476; Herman on Estoppel, p. 118; Wells' Res Adjudicata, sec. 619; Rutledge v. Railroad, 123 Mo. 121; Kelly v. Thuey, 143 Mo. 422. (7) Plaintiff's instruction number 1 was erroneous because it told the jury that if defendant did certain things, none of which were forbidden by law or have ever been branded by the courts as negligence per se, the defendant was negligent. Hornblower v. Crandall, 78 Mo. 581; Jacquin v. Cable Co., 57 Mo.App. 339; Vanhouser v. Berghoff, 90 Mo. 487; Reed v. Botts, 100 Id. 62; Schlereth v. Railroad, 96 Id. 509; Mateer v. Railroad, 105 Id. 320. (8) The result reached in the opinion on the first appeal on this phase of the case ought not to stand, even on the facts as stated by Judge Black in the opinion then written, because the conclusion is contrary to repeated decisions of this court. Butts v. Railroad, 98 Mo. 272; Kelly v. Railroad, 88 Id. 534; Yancy v. Railroad, 93 Id. 433; Kelsay v. Railroad, 129 Id. 362; Hayden v. Railroad, 124 Id. 566; Huggart v. Railroad, 34 Id. 673. (9) The unavoidable conclusion from the testimony is that the injured plaintiff was negligent and that such negligence directly contributed to, if it was not the sole cause of, her injuries. Harlan v. Railroad, 64 Mo. 480 and 65 Mo. 22; Fletcher v. Railroad, 64 Id. 484; Henze v. Railroad, 71 Id. 636; Purl v. Railroad, 72 Id. 168; Turner v. Railroad, 74 Id. 602; Hixson v. Railroad, 80 Id. 335; Fox v. Railroad, 85 Id. 679; Kelly v. Railroad, 88 Id. 534; Yancy v. Railroad, 93 Id. 433; Butts v. Railroad, 98 Id. 272; Hayden v. Railroad, 124 Id. 566; Kelsay v. Railroad, 129 Id. 362; Huggart v. Railroad, 134 Id. 673; Lane v. Railroad, 132 Id. 4; Boyd v. Railroad, 105 Id. 371.

Wallace & Wallace and C. C. Dickinson for respondents.

(1) The act of the defendant in running its train in sections at a rapid rate of speed across this highway, for the mere purpose of saving time in making a switch, was gross if not criminal negligence. It was an act of negligence per se. Baker v Railroad, 122 Mo. 533; French v. Railroad, 116 Mass. 537; Brown v. Railroad, 32 N.Y. 597; Buhter v. Railroad, 28 Wis. 487; Ward v. Railroad, 85 Wis. 601; Ferguson v. Railroad, 63 Wis. 145; Railroad v. Batches, 55 Ill. 379; York v. Railroad, 84 Me. 117; Conly v. Railroad, 89 Ky. 405; Railroad v. Schmidt, 126 Ind. 290; Railroad v. Shields, 90 Ala. 29; Railroad v. Converse, 139 U.S. 469; O'Connor v. Railroad, 94 Mo. 150. (2) Nor does the fact that the conductor remained on the cars which struck Mrs. Baker relieve the act of its unlawful character. Railroad v. Batches, 55 Ill. 379; French v. Railroad, 116 Mass. 537; Railroad v. Oshields, 90 Ala. 29; Ward v. Railroad, 85 Wis. 601. (3) The plaintiff was not guilty of contributory negligence. This was a question for the jury, and upon which the defendant had the burden of proof. Brown v. Railroad, 32 N.Y. 597; French v. Railroad, 116 Mass. 537; Ferguson v. Railroad, 63 Wis. 145; Butler v. Railroad, 28 Wis. 487; York v. Railroad, 84 Me. 117; Ward v. Railroad, 85 Wis. 601; Railroad v. Summers, 68 Miss. 566; Baker v. Railroad, 122 Mo. 533; O'Connor v. Railroad, 94 Mo. 150; Jennings v. Railroad, 112 Mo. 268; Easly v. Railroad, 113 Mo. 236. (4) The question of the defendant's negligence and as to negligence on the part of the plaintiff and the rules of law applicable thereto were passed on by the court on the former appeal, 122 Mo. 533. The case was tried the second time on instructions approved by this court when the case was here before. As the case was retried in...