Boyce v. Chicago & A. Ry. Co.

• Citation: 96 S.W. 670,120 Mo. App. 168
• Court: Court of Appeal of Missouri (US)
• Decision Date: 18 June 1906
• Parties: BOYCE v. CHICAGO & A. RY. CO.

96 S.W. 670

120 Mo. App. 168

BOYCE v. CHICAGO & A. RY. CO.

Kansas City Court of Appeals. Missouri.

June 18, 1906.

Rehearing Denied October 1, 1906.

1. RAILROADS—CROSSING ACCIDENT—INJURIES TO PEDESTRIANS—FINDINGS.

In an action for injuries to a pedestrian as she was about to cross defendant's railroad tracks between two parts of a train at a crossing, evidence held to sustain a finding that defendant's brakeman told plaintiff that she might pass between the parts of the train.

2. SAME—DUTY OF SERVANT.

Where a brakeman was stationed at a crossing where a freight train had been cut in two, it was the brakeman's duty to exercise reasonable care to prevent injuring persons who might be in the act of passing over the tracks between the parts of the train.

3. SAME—PROXIMATE CAUSE.

Plaintiff desiring to cross defendant's railroad track at a crossing where a freight train had been cut in two, defendant's brakeman told her that she could cross in safety; but, as she attempted to do so, the train started to come together, and plaintiff, in her fright, stepped on a loose stone in the roadway, fell and severly strained her ankle. Held, that defendant's negligence in moving the train while plaintiff was attempting to cross, and not her act in stepping on the stone, was the proximate cause of her injury.

4. SAME—ACTION—INSTRUCTIONS—ANTICIPATED INJURY.

Where plaintiff was injured by stepping on a loose stone as she was endeavoring to escape from between two parts of a train at a crossing, a request to charge that if defendant's employés in charge of the train did not anticipate, and could not by exercise of ordinary care have anticipated, that, if they started the train while plaintiff was crossing the track, she would run off the track and in doing so would step on a rolling stone, and be injured thereby, she could not recover, was properly refused, defendant being liable if its agents had reasonable ground to anticipate that plaintiff would be injured under the circumstances without reference to the manner in which it would occur.

5. TRIAL—INSTRUCTIONS—PARTICULAR FACTS.

Where plaintiff was injured while passing between two parts of a train which had been opened at a crossing, an instruction that if plaintiff's companion saw the train was about to move and warned plaintiff not to proceed, and thereafter plaintiff persisted in attempting to cross the track ahead of the train, she could not recover, was properly refused as singling out particular facts to the exclusion of others on which the jury was authorized to find a verdict.

6. RAILROADS — CROSSING ACCIDENT — CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries to plaintiff while attempting to retreat from between two cars, where she went in an endeavor to cross defendant's railroad track at a crossing between two parts of a train, evidence held to require submission of the question of plaintiff's contributory negligence to the jury.

7. TRIAL—INSTRUCTIONS—CONFORMITY TO EVIDENCE— —DAMAGES—LOSS OF TIME.

In an action for personal injuries, it is error to instruct the jury to consider plaintiff's loss of time without evidence of its value.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Catherine E. Boyce against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Richard Field and Scarritt, Griffith & Jones, for appellant. N. M. Houx and Wm. H. Chiles, for respondent.

BROADDUS, P. J.

This is a suit for damages for negligence. The facts of the case are as follows: On the evening of October 16, 1903, the plaintiff in company with her daughter-in-law, Mrs. Dorothy Boyce, started to go to the opera house in the town of Odessa. They took the usual route on the south side of Mason street, which crosses the defendant's track at its station. When they got to defendant's tracks, they stopped and waited for a passenger train to go by. They also saw a freight train standing on the passing track, which was cut in two to allow the passing of traffic on the street, which crossed the track parallel with the sidewalk, and to enable foot passengers to continue their journey. At this opening of the train they saw a man dressed in overalls with a railroad lantern in his hand, who appeared to be connected with the train, who told them they "could cross if they wanted to." Whereupon plaintiff started to cross the tracks, at which time the train began to move, which alarmed her, and in order to prevent being crushed between the cars when they came together she got off the sidewalk into the street-way, trod upon a stone, fell to the ground, but got up in time to get out of the way of the moving cars. She did not discover that she was injured until she got to the opera house, when she says she felt a pain in her ankle, which according to the evidence turned out to be a severe sprain. Plaintiff, her companion and another witness testified that they did not hear any warning given of the starting of the train, but the train operators testified that the usual warning in such cases was given. When plaintiff started to cross the track, her companion cried out to her to come back, but she did not heed the warning. The rear brakeman testified that he was at or near the place in question, that he did not say anything to plaintiff about crossing the tracks, and that he gave the signal for starting.

Defendant insists that there was no evidence that the man plaintiff took to be a brakeman was such. We think there was sufficient evidence that it was defendant's brakeman who told plaintiff that she might pass between the two parts of the train. Such matters are sometimes difficult to prove to a certainty, and reliance must necessarily be placed upon the appearance and acts of the person charged with the duty of a brakeman. Ordinarily, the only person found on such occasions at such places, where the person whom plaintiff took to be a brakeman was found, is a brakeman with a lantern, if it is dark, dressed in overalls, and apparently connected with the movements of the train. And it is the duty of a brakeman on such occasions to exercise reasonable care to prevent injuring persons who may be in the act of passing over the tracks of his company. Montgomery v. Railroad, 181 Mo. 477, 79 S. W. 930. It is the brakeman that cuts a train in two at a crossing, and it is the brakeman that gives the signal to close the train again. He is at the place of separation of...