Becke v. Missouri Pac. Ry. Co.

• Decision Date: 30 June 1890
• Citation: 13 S.W. 1053,102 Mo. 544
• Parties: BECKE v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

13 S.W. 1053

102 Mo. 544

BECKE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

June 30, 1890.

IMPUTED NEGLIGENCE — DEATH BY WRONGFUL ACT — DAMAGES.

1. Contributory negligence of a stage-coach driver will not be imputed to his passengers, and thus defeat a recovery for injuries sustained by the latter in a collision with a train of cars.

2. In an action for injury at a railroad crossing, it was not error to instruct the jury that if they believed that the night was dark, and that the engine was running 25 miles an hour through a thickly-settled portion of the country, without the head-light being lighted, in consequence of which the collision occasioning the injury occurred, they should find for plaintiff.

3. Under Rev. St. Mo. 1879, § 2121, fixing the amount of recovery for injuries resulting in death "caused by the negligence, unskillfulness, or criminal intent of any officer, agent, servant, or employe, whilst running any locomotive or train of cars," at $5,000, it was proper to instruct the jury that, if they found that the injury resulted from the failure to light the head-light of the locomotive, they should give the plaintiff a verdict for $5,000.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

T. J. Portis and Bennett Pike, for appellant. A. R. Taylor, for respondent.

BRACE, J.

In this action plaintiff sues to recover damages for the death of her husband, Charles Becke, who was a passenger in a public stage or hack that was struck by a train of defendant at a public crossing a short distance from Nevada, Mo., thereby causing the said coach to be overturned, and the said Becke injured so that he died within two days after the collision, from such injuries. The plaintiff had judgment for $5,000, and the defendant appeals. The only errors urged as grounds for reversal are upon the instructions. They may all be considered upon instructions 1 and 3 given for plaintiff, and instruction A refused for the defendant:

"No. 1. If you find from the evidence that plaintiff was the wife of Charles Becke when he died; and that on January 16, 1886, said Charles Becke was a passenger on a public stage or hack going from Montevallo to Nevada, in Missouri, and had no control over the driver thereof, or of the management of said hack; and that the hack in which said Becke was then such passenger was struck on said day by an engine of defendant at the crossing of the railroad and a traveled public road near Nevada, Mo., and not within any city; and that in consequence of said collision said Becke received injuries from which he died at Nevada, Mo., on or about January 18, 1886; and if you further find, from the evidence, that said collision directly resulted from or was caused by the omission of defendant's employes in charge of said engine to give any of the signals mentioned in instruction No. 2; and that said Charles Becke, at and prior to said collision, was himself exercising ordinary care to avoid injury and danger, — then your verdict should be for plaintiff, and you should assess her damages at the sum of $5,000."

"No. 3. If you find, from the evidence, the facts to be as mentioned in instruction No. 1, except as to the omission of signals, and find on that point that one of the signals mentioned therein (and more particularly described in instruction No. 2) was given; but if you then further find, from the evidence, that at the time and place of said collision it was no longer daylight, but was after dark, and that there was no head-light lit or burning on said engine, and that in consequence of said omission said collision occurred at said crossing, — then your verdict should be for plaintiff, and you should then assess her damages at the sum of $5,000, that being the measure of damages fixed by the statute in this case in the event you find for the plaintiff under these instructions and the evidence before you."

"A. The court instructs the jury that if they believe from the evidence that on the 19th day of January, 1886, one Hanley was driving a hack from Montevallo to Nevada, and that he had driven that hack from Nevada to Montevallo and back six days each week for one-third of the time since the 1st of December, 1885, and had known the road ever since the railroad was built for four or five years, and had been over it often during that time, and knew said public road on which he was traveling crossed the defendant's railroad at a point from a mile to a mile to a mile and a quarter south-east of the town of Nevada in open prairie land, where the railroad train could be seen from half a mile to a mile and a quarter before the train reached said crossing, and that said train could have been seen or heard by said Hanley for a distance of thirty rods or more before he reached the crossing if he had looked in the direction of the train, or could have been heard by him if he had listened carefully, or if it was after dark in the evening, from 6:10 to 6:25 o'clock P. M., and said Hanley had stopped and carefully looked and attentively listened, that he could have seen or heard the train, and that said Hanley knew it was about train time, and, notwithstanding, said Hanley drove his team and hack onto the railroad crossing without stopping and carefully looking and attentively listening, and plaintiff's deceased husband was injured in consequence thereof, either by the train, or by reason of the team running away, upsetting the hack, and dragging deceased, or otherwise, the defendant is not liable for any injury so done, and the jury should find their verdict for defendant, whether the whistle was sounded, the bell was rung, or the head-light was lit or not."

1. It is contended by counsel for the defendant that the court committed error in refusing to instruct the jury that the plaintiff could not recover if the driver of the hack in which her husband was a passenger was guilty of negligence which contributed to the injuries which resulted in his death, and that the doctrine laid down in Thorogood v. Bryan, 65 E. C. L. 115, — that a passenger upon the vehicle of a common carrier who sustains an injury which is the result of the concurrent negligence of those in charge of such vehicle and third persons is so identified with the former as to be chargeable with their negligence in an action against the latter, and therefore only entitled to recover damages from his carrier, — should govern the case. This doctrine, from the time it was first announced in Thorogood v. Bryan, in 1849, though afterwards followed by the English courts for a time, (Armstrong v. Railway Co., L. R. 10 Exch. 47,) was continually subjected to adverse comment and criticism, until recently, in the case of The Bernina, (Jan. 24, 1887,) 12 Prob. Div. 58, the whole question was re-examined, and the authorities, English and American, reviewed by the court of appeals of England, and the doctrine condemned; and Thorogood v. Bryan, and the cases that...