Bluedorn v. Missouri Pac. Ry. Co.

• Decision Date: 24 March 1894
• Citation: 121 Mo. 258,25 S.W. 943
• Parties: BLUEDORN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

25 S.W. 943

121 Mo. 258

BLUEDORN v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

March 24, 1894.

INJURY TO RAILROAD SWITCHMAN — CONTRIBUTORY NEGLIGENCE — PRESENCE ON TRACK — EXCESSIVE SPEED OF TRAIN — EFFECT — CONDUCT OF TRIAL.

1. Plaintiff, a railroad switchman, while engaged at night in defendant's yards in switching a train, was struck by another train which he knew was due, and which he could have seen, had he looked, 120 feet away. Plaintiff was, at the time, looking towards the engineer of the train which he was switching, and the train which struck him was running 20 miles an hour, while a city ordinance forbade it to run more than 6. Held, that whether plaintiff was guilty of negligence in being on the track when struck was for the jury. Sherwood, J., dissenting.

2. In an action against a railroad for personal injuries caused by a train running at an unlawful rate of speed, it is error to charge that there is a presumption that such excessive speed caused the injury, that being a question purely for the jury.

3. In an action for injuries from a train, on the ground that it was running at a rate of speed in excess of that fixed by ordinance, defendant cannot show that the ordinance is unreasonable and invalid, unless such defense is specially pleaded.

4. It is within the discretion of the trial court to permit the jury to take the pleadings to their room, and, in the absence of some improper use of them or prejudicial results, a case will not be reversed on that ground.

In banc. Appeal from St. Louis circuit court; Daniel D. Fisher, Judge.

Action by Theodore Bluedorn against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John T. Cochran and H. S. Priest, for appellant. Zach J. Mitchell, for respondent.

BURGESS, J.

This is an action for personal injuries. The case was before this court on a former appeal, and will be found reported in 108 Mo. 439, 18 S. W. 1103, in which the facts as disclosed at the trial in the circuit court are stated by Black, C. J., as follows: "This is an appeal prosecuted by the defendant from a judgment in favor of plaintiff in a personal damage suit. The plaintiff was injured by a passenger train, while in the employ of the defendant as a night switchman, so that it became necessary to amputate his leg between the knee and ankle. He founds his action on the violation of an ordinance of the city of St. Louis which limits the rate of speed of trains to six miles per hour. The plaintiff had been engaged in railroad work for thirteen years, — eleven years of that time in the capacity of a conductor on another road entering the city of St. Louis. He had been in the employ of the defendant as night switchman at the defendant's Seventeenth street yards in St. Louis for five nights preceding the night on which he received the injuries of which he complains. The accident occurred at night, between ten and eleven o'clock, at a point near the Eighteenth street bridge. The Seventeenth street yards are just east of the Eighteenth street bridge. There is what is called a `lead track,' extending from the Seventeenth street yards westward on a curve to the north under the bridge, and thence westward on a curve to the south, but the degree of these curves is not stated. There are three tracks passing under the bridge. The first or south one is this lead track; the next one north of it is called the `east-bound main track;' and to the north of that is the west-bound main track. Both of these main tracks curve to the south after passing under the bridge going from the east to the west; but here again, the degree of the curve is not stated. There is a spur track which leaves the middle or east-bound track at a point just west of the bridge, and extends westward between that track and the lead track. At the time of the accident there were cars standing on the spur track at a point west of, but near, the bridge. The plaintiff and his crew were engaged in moving a train of fifteen or more cars from the Seventeenth street yards. After the engine and some six or eight cars passed under the bridge, going west, the plaintiff got off on the ground, and stepped north some six or eight feet, to and across the middle or east-bound track, to a point some fifteen feet east of the bridge. He then looked west between the cars standing on the spur track and his train, then moving westward, and gave the engineer signals to stop and to back up. He then stepped back towards his train, and, as he was clearing the east-bound track, his foot was caught by the pilot of the engine of an east-bound passenger train, called the `Kirkwood Accommodation.' It was necessary for the plaintiff to get off his train and step over the track as he did in order to get in line with his engineer, so as to give the signals. He says he could not see the incoming passenger train until it passed around the cars standing on the spur, though some of his evidence tends to show that he could have seen the headlight of the engine drawing that train for a distance of one hundred and eighty feet from where he stood. He says he did not see the incoming train; that he just stepped across the track, gave his engineer a signal with his lantern to stop, then two signals to back up; that he then started back, and was caught; and that it was all the work of a minute or thirty seconds. He says that he knew this Kirkwood train came in every night, but that he had no time card, and did not know when it was due, and was not the foreman of his crew. The evidence of the plaintiff and that of another witness is to the effect that this Kirkwood train was moving at a rate of speed from twenty to twenty-two miles per hour. The conductor on that train gave it as his opinion that his train was running at a speed not exceeding ten or twelve miles per hour, and assigns as a reason therefor that it was customary to slack up at the point where the accident occurred. He says his train was running on the time given by a time card prepared and promulgated by the defendant. This time card was put in evidence, and it calls for a rate of speed exceeding that specified in the ordinance. The ordinance is in these words: `Sec. 1238. It shall not be lawful within the limits of the city of St. Louis for any car, cars or locomotives propelled by steam power, to run at a rate of speed exceeding six miles per hour; but nothing in this section shall be so construed as to apply to any car, cars or locomotives running over track or tracks which are maintained along the river bank between Arsenal street and Elwood street.' The case was submitted to the jury on this evidence produced by the plaintiff; and the first complaint is that the court erred in overruling the defendant's demurrer to the evidence. In this connection the defendant seeks to have the above ordinance ruled out of the case for these alleged reasons: First. Because the right of the city of St. Louis to regulate the speed of railroad trains is implied for the express power conferred upon it to regulate the use of the streets; hence the ordinance should be construed as applying to streets and crossings only. Second. Because the ordinance was not designed for the protection of the defendant's employes, and the plaintiff can derive no benefit or protection therefrom."

Upon a new trial plaintiff again recovered a judgment, from which defendant appeals. The evidence in behalf of plaintiff on the last trial was about the same as on the first. As to the additional facts which occurred upon the last trial, they are stated by Macfarlane, J., of division No. 1, as follows (24 S. W. 57): "On this trial it was shown that the curve of the lead track to the south was very slight, — only two degrees. A civil engineer testified, from a careful measurement and test, that one standing where Bluedorn said he was struck would have had an open, straight view of the train approaching from the west for 350 feet. Plaintiff himself admitted that he had an open view of the track for 40 or 50 yards, but the shadows of the bridge from the electric lights interfered with his vision. Defendant's evidence showed that `the yards where plaintiff was employed extended from the Union Depot, at Twelfth street, westwardly to Grand avenue, and were covered by a multitude of tracks intersecting each other, in constant use by switching engines engaged in handling a large terminal business, as well as by some sixty or seventy incoming and outgoing trains. Ten to fifteen switch engines, with a full complement of attendants, consisting of engineer, fireman, foreman, and helps or switchmen, were constantly engaged in doing the switching service in these yards; that is, gathering up and distributing out cars throughout the different parts of the yards.' The testimony of plaintiff was contradicted by witnesses of defendant as to where his train was when he commenced work that night, as to his position on the train, as to the signals given, and as to his necessity to go across the track in order to give the signals to the engineer. Plaintiff admitted having knowledge of the dangers continually surrounding him, and that it was his business to look out for this train, as well as all others, and keep out of its way. The case was submitted to the jury upon all the evidence and instructions. Defendant complains of the action of the court in giving plaintiff's...