Bauer v. Kansas Pacific Ry. Co.

• Decision Date: 31 October 1878
• Parties: BAUER v. THE KANSAS PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

69 Mo. 219

BAUER

v.THE KANSAS PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

Action to recover damages for injuries to plaintiff's horse and wagon. It appeared in evidence that the plaintiff had delivered a load of freight at the depot of the railroad company, and was in the act of driving out of the depot yard or grounds when a train belonging to the company, backing through the yard, ran over and maimed plaintiff's horse and broke his wagon. There were several tracks running parallel with each other. Plaintiff was crossing them at the place provided by the company for ingress to and egress from the depot. The contention between the parties was whether the bell was rung or the whistle was sounded on the locomotive of the backing train as it approached the crossing, whether a number of empty cars left standing on one of the tracks so obstructed the view as to prevent the approach of the train being observed, and if so, whether they were unnecessarily there; also, whether the plaintiff kept a proper lookout. Upon these points both sides offered evidence.

The court, at the instance of the plaintiff, instructed the jury as follows: 1. If you find from the evidence that the plaintiff in the due course of his business, while crossing the defendant's railroad track, with his wagon and team, at the usual crossing of such track leading to or from defendant's depot, met with the accident complained of by reason of a collision with defendant's train of cars; and that the agents in charge of said train did not give the signals by ringing one bell for eighty rods before approaching said crossing and continuously up to and across the same; and that plaintiff was guilty of no negligence on his part in contributing directly to said collision, you shall find for plaintiff, provided you further find that the place where said accident occurred was used as a public road by consent of defendant, and that the said accident was caused by reason of the neglect of said agents of defendant to give such signal.

2. You are instructed that it is the duty of all railroad companies in passing through incorporated cities in this State to have a bell on each locomotive engine, and to ring it at a distance of at least eighty (80) rods from the place where any railroad train crosses any traveled public road or street, and be kept ringing until after crossing such road or street.

3. You are instructed that the plaintiff's right to use said crossing was not inferior or subordinate to that of defendant; that each had a right to use said crossing in a lawful manner, and each was bound to use caution, care and diligence to avoid accidents, and unless you find that the acts of the plaintiff were the direct and proximate cause of the accident, you shall find for him, provided, the accident was produced by negligence on the part of defendant.

4. You are instructed that if you believe from the evidence that defendant's agents left standing a train or number of box cars unnecessarily upon the side track, and which obstructed the view of the approaching train from the point where plaintiff started from said depot, and that the same could not be and was not seen by plaintiff until too late to avoid the collision, and that by reason thereof said injury was produced, and that the plaintiff was not guilty of negligence on his part, which contributed directly to produce the injury, plaintiff must recover. But in determining whether plaintiff was guilty of negligence which contributed directly to produce the injury above mentioned, he should have exercised such care and prudence as a man of ordinary caution would have used in view of the situation of said box...