Burger v. Missouri Pac. R. Co.

• Decision Date: 10 October 1892
• Citation: 112 Mo. 238,20 S.W. 439
• Parties: BURGER v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

20 S.W. 439

112 Mo. 238

BURGER v. MISSOURI PAC. R. CO.

Supreme Court of Missouri, Division No. 2.

October 10, 1892.

ACCIDENT AT RAILROAD CROSSING — PLEADING — SIGNALS — CONTRIBUTORY NEGLIGENCE — OBSTRUCTION OF STREETS.

1. A petition, in an action to recover for personal injuries, alleged that defendant negligently and unlawfully stopped a freight train across a public street; that, while plaintiff was attempting to cross such street between two cars of such train, defendant, without warning, backed such train, thereby causing plaintiff's injury. Held, that the two alleged causes of injury were not separable, in the sense that one only would be the proximate cause of such injury.

2. Though Rev. St. 1889, § 2608, providing that the bell shall be rung or the whistle sounded at least 80 rods from the place where a railroad crosses any traveled public road or street, and so continued at intervals until such road or street has been crossed, is intended to give warning of the approaching train only to those crossing or attempting to cross the railroad over a public highway, yet it does not follow that no other signals are ever required.

3. Where a freight train is stopped across a village street longer than the village ordinance allows, and people are crossing such street by passing between the cars of such train, it is a question for the jury whether it was not the duty of those in charge of such train to give proper warning of their intention to start the same.

4. Where the evidence tends to prove the allegations of the petition charging defendant with negligence, a case is made out for the jury as to such negligence.

5. Where it appears that plaintiff was an unusually bright boy of nine years; that he knew of the danger in so passing between the cars; and that he might have passed over an unobstructed road at another point, — it is a question for the jury whether plaintiff exercised that degree of care which would be expected from one of his age and capacity, under like circumstances.

6. Under a village charter giving the village the right and control over the public streets, and the common council power to pass any ordinance "usual or necessary for the well being of the inhabitants," such village has authority to limit the time trains may block a street to 10 minutes.

7. Evidence that plaintiff saw others cross before him is admissible to show defendant's negligence in starting the train without warning.

Appeal from circuit court, Moniteau county; E. L. EDWARDS, Judge.

Action by Edgar Burger, by Thomas M. Burger, his next friend, against the Missouri Pacific Railroad Company, to recover damages for personal injuries resulting from the alleged negligence of defendant's employes. Judgment for plaintiff. Defendant appeals. Affirmed.

H. S. Priest and W. S. Shirk, for appellant. Moore & Williams and Draffen & Williams, for respondent.

MACFARLANE, J.

Plaintiff, who is an infant, prosecutes this suit by his next friend, to recover damages from defendant for personal injuries resulting from the alleged negligence of its employes. He obtained judgment in the circuit court, and defendant appealed. After the formal allegations, the petition charged, in substance, that, on the 3d day of May, 1889, defendant negligently and carelessly obstructed the crossing of one of the public streets of the town of California, known as "Oak Street," by standing one of its trains across it more than 10 minutes, in violation of an ordinance of said town; that plaintiff was a boy between 9 and 10 years of age, and lived with his father on the south side of the railroad; that over this street was his usual way to the public school, which he was attending, and which was situate on the north side of the railway; that when plaintiff, on his way to school on said day, reached said crossing, he found a train standing across it; after waiting for some time for it to be moved or to be uncoupled, on seeing grown persons pass over between the cars, he attempted to go through, also; that, being so young, he did not, under the circumstances, anticipate any danger; that, when he had gotten partly over, the defendant's servants carelessly and negligently caused said train to back up, without ringing the bell or sounding the whistle, or giving any signal of starting, by reason whereof he had no notice of the intended moving of said train; that it was defendant's duty, under the laws of this state, to give such signal before starting the train; that, by reason of such carelessness and negligence, plaintiff's right foot was caught between the drawheads of said cars, and crushed, and had to be amputated. The sufficiency of this petition to declare a cause of action was questioned on the trial by objection to any testimony thereunder, and again after verdict by motion in arrest of judgment. These objections were overruled, and the action of the court in doing so is assigned as error in this court.

1. It is first objected that the petition shows no causal connection between the act of obstructing the crossing and the injury to plaintiff; that the moving of the train was the proximate cause of the injury, and no negligence in doing that is stated. We do not understand that the maxim, causa proxima, non remota spectatur, applies in case both negligent acts, conducing to produce the injury, were committed by the person from whom redress is sought. The rule that the causal connection between the negligent act and the damage may be broken by the interposition of an independent responsible human agency cannot be applied to relieve one of liability for one negligent act by interposing another, also committed by himself. Besides, we do not think the two negligent acts charged in this petition are independent of each other. They both unite in constituting one act of negligence, — the negligent management of the train, — and both concur in producing the damage. The idea is aptly expressed by WOODWARD, J., in an opinion in a case in which a child undertook to pass under a train standing across a street, and was injured by the negligent starting of the cars before he had passed through. He says: "Now, adjust the acts of stopping and starting ever so nicely to the maxim causa proxima, and not a step of advance is taken by the defense, for the company are equally liable for both causes. If you say it was the starting, and not the stopping, of the cars that did the mischief, the question of plaintiff's negligence in suffering his son to be under them is still in the case; but you have made no progress in the defense, because, if there was wrong in the start, the company are as responsible for it as for any wrong in the stop. The nature of the case, however, does not admit of this nice distinction. The conduct of that train of cars was one thing, intrusted as a special duty to one man, and if his mismanagement injured the plaintiff, without fault on the plaintiff's part, the company are liable for it. To split such a single, simple, individual cause into two causes, and to christen them proxima and remota, is to embarrass ourselves unnecessarily, and to obstruct the course of justice." Railroad Co. v. Kelly, 31 Pa. St. 377; Nagel v. Railway Co., 75 Mo. 653; Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. Rep. 369; Railway Co. v. Reaney, 42 Md. 117. The negligent and unlawful obstruction of the street continued until the negligent starting of the cars commenced, and the two alleged causes of the injury were not separable, in the sense that one only would be the proximate cause of the damage.

2. It is next insisted, as an objection fatal to the sufficiency of the petition, that it was not the duty of defendant, under the circumstances alleged in the petition, to give warning of the starting of the train. It is argued, we think correctly, by counsel for defendant, that the duty of giving the statutory signals of ringing the bell or sounding the whistle has no application to one situated as plaintiff was, in the middle of the train and between two cars, but was intended to give warning of the approach of a train to persons who...