Bluedorn v. the Missouri Pacific Railway Company

• Decision Date: 24 March 1894
• Parties: Bluedorn v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

25 S.W. 943

121 Mo. 258

Bluedorn v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

March 24, 1894

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Reversed and remanded.

John T Cochran and H. S. Priest for appellant.

(1) A verdict upon the pleadings and the evidence should have been directed for the defendant upon the grounds: First, of his contributory negligence; second, of the failure to associate in causal relation the speed of the train, and the plaintiff's injury. (a) Plaintiff admits that it was his positive duty to watch for and keep out of the way of this train as well as all others; that it was plain to be seen, at least, one hundred and twenty feet away; that he only saw it because its presence was forced upon him, and that he stepped upon the track when it was immediately upon him. This coupled with the evidence of Carey, his own witness, to the fact that he stepped upon the track within ten or fifteen feet of the approaching train, is conclusive of his disregard of the duty which he recognizes himself, and his concurring negligence. Bluedorn v. Railroad, 108 Mo. 439; Taylor v. Railroad, 86 Mo. 458; Yancy v. Railroad, 93 Mo. 433. (b) If the plaintiff stepped upon the track so closely in front of the engine as, if running at a rate of speed of six miles per hour, it could not have been stopped, or so checked as to avoid the injury, then the excess of speed above that rate was not a cause. The evidence, beyond controversy, shows this to be the fact. Jennings v. Railroad, 99 Mo. 399; Hanlon v. Railroad, 104 Mo. 387; Wharton on Neg., secs. 302, 303, 323, 324. (2) The court erred in giving instruction number 1, of the plaintiff's series. Whether the court intended the presumption specified in the instruction to have the effect of a legal presumption or an inference of fact, is not disclosed by anything in the context. In either aspect, it is wrong. It would not be an incontrovertible legal presumption. If an inference from facts proved, it falls entirely within the province of the jury. Lynch v. Railroad, 20 S.W. 642; Moberly v. Railroad, 98 Mo. 183; Wharton on Crim. Ev. [9 Ed.], sec. 207; Ins. Co. v. Weide, 11 Wall. 440. (3) The court erred in refusing to give instruction number 3 asked by the defendant. There was abundant evidence upon which to predicate it, and it contains sound legal propositions. Abbott v. McCadden, 51 N.W. 1079; Bengston v. Railroad, 50 N.W. 531; Roddy v. Railroad, 104 Mo. 234. (4) Instructions numbers 2 and 4 given and number 3 given, as modified by the court, assumed uncontradicted facts, and the action of the jury in returning a verdict against their direction, is such a palpable outrage as to indicate either gross imbecility, corruption or a blind and ungovernable prejudice against corporations, and for this reason, the verdict should be reversed. (5) The court erred in giving the pleadings to the jury to take with them when they retired to consider their verdict. The jury have nothing on earth to do with the pleadings. Bryan v. Railroad, 63 Iowa 464; Butcher v. Death, 15 Mo. 270; Harrison v. Hance, 37 Mo. 187; Flishman v. Miller, 38 Mo.App. 181; Proctor v. Loomis, 35 Mo.App. 488; Grant v. Railroad, 25 Mo.App. 232; Crocker v. Crocker, 2 Mo.App. 458; Hollis v. Ins. Co., 21 N.W. 774; Willis v. Forest, 2 Duer, 310; Drew v. Andrews, 8 How. 23; Garfield v. Knight, 14 Cal. 35. (6) The damages awarded by the jury are grossly excessive. (7) The court erred in refusing defendant's offer to prove that the business of its yards could not be done if it was required to conform to a maximum speed of six miles per hour.

Z. J. Mitchell for respondent.

(1) The instructions given in the case fairly presented the law to the jury and the latter is the sole judge of the weight and import of the evidence. Burger v. Railroad, 112 Mo. 250; Roddy v. Railroad, 104 Mo. 234. (2) All the questions raised by appellant were passed on in the former appeal and are res judicata.

Burgess, J. Sherwood, J., does not concur in the first paragraph of the opinion, and is of the opinion that the judgment should be reversed without remanding the cause.

OPINION

In Banc

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, 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 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.'

"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 from 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 employees, and the plaintiff can derive no benefit or protection therefrom."

Upon a new trial plaintiff again recovered a judgment, from which defendant appeale...