Bluedorn v. Missouri Pac. Ry. Co.

• Decision Date: 27 November 1893
• Citation: 24 S.W. 57
• Parties: BLUEDORN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

24 S.W. 57

BLUEDORN v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 27, 1893.

MASTER AND SERVANT — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — PLEADING AND PROOF — TRIAL — INSTRUCTIONS — APPEAL.

1. A railroad switchman, in an action against the company for injuries in being run over by a train while he was attending to the switching of a train on another track, and when he had stepped across the latter track to signal his engineer, cannot be held, as a matter of law, guilty of contributory negligence, from his testimony that it was his duty to watch out for the train by which he was struck, and that he could have seen it, had he not been occupied with his work, at a distance of 150 feet, where the train was running at a speed that would cover that distance in five seconds; since it was also his duty to attend to his work.

2. The fact that a switchman stepped across the track in front of a moving train to reach the cars which he was switching does not, as a matter of law, show contributory negligence, where it was at night, and his vision was interfered with by shadows of a bridge from the electric lights.

3. In an action against a railroad company for personal injuries, where it is shown that the injuries were caused while the train which struck plaintiff was running at a prohibited rate of speed, the damage will be attributed to the negligence, in the absence of anything to show the contrary; and it is not error to instruct the jury that, if such were the circumstances, they may presume that the negligence caused the injury.

4. When the testimony on any particular fact is undisputed, and but a single inference can be drawn therefrom, an instruction that the jury may draw such inference is not error.

5. Contributory negligence is a defense in a personal injury case, and the burden of proof is on defendant.

6. It is not error to refuse instructions, where those already given embody substantially the same propositions.

7. In an action for injuries from a train, on the ground that it was running at a rate of speed in excess of the rate fixed by ordinance, defendant cannot show by extrinsic facts that the ordinance was unreasonable and invalid, unless the issue is raised by its answer, since this is new matter, required by Rev. St. § 2049, to be specially pleaded.

8. Though the practice of trial courts in permitting the jury to take the pleadings to their room is deemed improper, the supreme court, in view of the fact that it has been common to allow it, will not reverse on that ground unless an abuse of the trial court's discretion, and prejudice, are shown.

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

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

The other facts fully appear in the following statement by MACFARLANE, J.:

In a previous appeal in this case the judgment was reversed, and the cause remanded. 18 S. W. 1103. Upon a new trial the judgment was again for plaintiff, and defendant has again appealed. The evidence in behalf of plaintiff was, in substance, the same as upon the first trial. On the second trial, defendant introduced some evidence. The substantial facts were given by Black, J., in his statement on the former appeal, which, for convenience, I insert here as a part of my statement in this appeal: "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 the 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 the 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 of the eastbound 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 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 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 of 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 an 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.'"

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 that shadows of the bridge from the electric lights interfered with his vision. Defendant's evidence showed that "the yards where the 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 helpers or switchmen, were constantly engaged in doing the switching service in these yards; that is, gathering up and distributing cars throughout the different parts of the yard." 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 signal 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 instructions, in refusing some and modifying others asked by it, and in refusing to admit certain evidence. On the question of contributory negligence, the court gave the jury, at request of defendant, the following...