O'Connor v. Missouri Pacific Railway Co.
| Citation | 7 S.W. 106,94 Mo. 150 |
| Parties | O'Connor v. The Missouri Pacific Railway Company, Appellant |
| Decision Date | 20 February 1888 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.
Affirmed.
Thos J. Portis and Adams & Bowles for appellant.
(1) Defendant's objection to the introduction of any evidence, because the petition fails to state a cause of action, should have been sustained. There is no averment in the petition that the plaintiff was exercising due care, nor any facts stated from which such inference can be made. (2) Defendant's instruction in the nature of a demurrer to the evidence should have been given. Deceased's own carelessness in failing to look and listen for an approaching train shows such contributory negligence as precludes a recovery. Taylor v. Railroad, 86 Mo. 457; Mayher v. Railroad, 64 Mo. 267; Harlan v. Railroad, 64 Mo. 480; S. C. 65 Mo. 22; Evans v. Railroad, 62 Mo 57; Kelley v. Railroad, 75 Mo. 138; Bell v Railroad, 86 Mo. 599; Fox v. Railroad, 85 Mo. 679; Stepp v. Railroad, 85 Mo. 229; Purl v. Railroad, 72 Mo. 168; Fletcher v. Railroad, 64 Mo. 484; Powell v. Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo. 86; Stillson v. Railroad, 67 Mo. 676; Zimmerman v. Railroad, 71 Mo. 476; Henze v. Railroad, 71 Mo. 636; Hixson v. Railroad, 80 Mo. 335; Turner v. Railroad, 74 Mo. 603; Moody v. Railroad, 68 Mo. 470; Milburn v. Railroad, 86 Mo. 104; Finlayson v. Railroad, 1 Dillon (U.S.C. C.) 579; Gorton v. Railroad, 45 N.Y. 660; Haas v. Railroad, 47 Mich. 401; Railroad v. Clark, 73 Ind. 168; Hinckly v. Railroad, 120 Mass. 257; Payne v. Railroad, 39 Iowa 326; Railroad v. Elliott, 28 Ohio St. 340; Artz v. Railroad, 34 Iowa 153; Railroad v. Hart, 87 Ill. 529; Railroad v. Huston, 95 U.S. 697; O'Donnell v. Railroad, 6 R. I. 211; Railroad v. McDemerell, 87 Ill. 450; Tully v. Railroad, 134 Mass. 499; Railroad v. Beale, 73 Pa. St. 504. (3) The court erred in giving the plaintiff's first instruction. In it the jury are told to find for her if the defendant kicked the car "for the purpose of sending it over the crossing as described in plaintiff's petition." This was error. It was also erroneous in not telling the jury what was the exercise of ordinary care. McGinnis v. Railroad, 21 Mo.App. 413. (4) The error in plaintiff's instruction was not cured by the giving of the instructions by the court. Welch v. Railroad, 20 Mo.App. 477; Goetz v. Railroad, 50 Mo. 474; State to use v. Nauert, 2 Mo.App. 295. (5) The instruction given by the court of its own motion was erroneous in referring the jury to the negligence charged in the petition. It is the well-settled rule of practice that an instruction ought not thus to refer the jury to the pleadings, and the instruction was further erroneous in telling the jury to find for plaintiff if defendant ran the car across the street "in such a manner as to endanger travelers passing along or across the street." There is no such averment in the petition. McGinnis v. Railroad, 21 Mo.App. 413.
Sherry & Harlow for respondent.
(1) It was not necessary to allege that deceased was at the time exercising due care. Buesching v. Gaslight Co., 73 Mo. 229; Flynn v. Railroad, 78 Mo. 195; Crane v. Railroad, 87 Mo. 588; Thomson v. Railroad, 51 Mo. 190; Lloyd v. Railroad, 53 Mo. 190; Taylor v. Railroad, 26 Mo.App. 336. (2) Defendant's instruction in the nature of a demurrer ought not to have been given, for the reason that the making of flying switches and the kicking of cars over street-crossings is negligence per se. Troutman v. Railroad, 11 Weekly Notes of Cases (Penn.) 455; Kay v. Railroad, 65 Pa. St. 269; Ferguson v. Railroad, 63 Wis. 145; S. C., Am. & Eng. R. R. Cases, 285; Howard v. Railroad, 32 Minn. 214; S. C., 19 Am. & Eng. R. R. Cases, 386; Butler v. Railroad, 28 Wis. 487; Brown v. Railroad, 32 N.Y. 600; Railroad v. State to use McGirr, 61 Md. 108; S. C., 19 Am. & Eng. R. R. Cases, 326; Railroad v. Machas, 55 Ill. 379; Railroad v. Dignan, 56 Ill. 487; Stillwell v. Railroad, 34 N.Y. 29; Railroad v. Garvey, 58 Ill. 83; Patterson's Railway Accident Law, 166. (3) The court did not err in giving plaintiff's instruction. It contained a full review of all the material allegations set forth in the petition and fairly presented plaintiff's cause of complaint to the jury. (4) The instruction given by the court on its own motion was strongly in favor of the defendant. Nor is it objectionable simply because it refers to the petition. The reference to the petition was evidently made for the purpose of shortening the instructions, and went to the matter of description which was a part of the narrative, and not to the essential questions in the case. Edleman v. Transfer Co., 3 Mo.App. 506; Corrister v. Railroad, 25 Mo.App. 619. (5) The petition states a cause of action against defendant, and the trial court did not err in overruling defendant's objection to the introduction of evidence because the petition failed to state a cause of action. It is not necessary to allege that plaintiff was exercising due care. That point is brought squarely in issue by defendant's answer and plaintiff's reply. Defendant's demurrer to the evidence was rightly overruled by the trial court. There is no evidence of carelessness on the part of O'Connor, "in failing to look and listen for an approaching train," and no contributory negligence on his part is shown by the facts as proven. Nor even can it be inferred from the circumstances under which he was injured. It was a question of fact, for the jury to determine from the evidence, whether O'Connor was guilty of contributory negligence, and not one of law. And the burden of proof of contributory negligence is on defendant. Frick v. Railroad, 75 Mo. 595; Loewer v. City of Sedalia, 77 Mo. 431.
OPINION
The defendant appealed from a judgment in favor of the plaintiff for five thousand dollars damages for the death of her husband, who was run over by one of the defendant's cars at or near the intersection of Union avenue and Hickory street, in Kansas City, in February, 1886.
The defendant offered no evidence. That for the plaintiff is, in substance, as follows: "Hickory street runs north and south, and Union avenue crosses it in a northwesterly direction. Hickory street forms the eastern boundary of the defendant's switch yards, and Union avenue extends along the northeast side thereof. There are five or six railroad tracks on and along Union avenue at this crossing, one of which, at least, is used by the Wabash road, and others are owned by the defendant. The deceased, in going to church on Sunday morning, traveled southward from his home on and along Hickory street until he reached these several tracks. There his progress was obstructed by a train of the Wabash road going east on the south track. At this time defendant's servants were switching cars in and out of the yard. They had a string of cars to the east of the crossing, and from the rear of their train they "kicked" a single car westward over the crossing and into the switch yard. There was no brakeman or other person on the car, and it ran on and over O'Connor, and he died from the effects of the wounds then received.
There is evidence to the effect that O'Connor, in order to get by the passing Wabash train, turned and went west on the defendant's track thirty, forty, or fifty feet, and that the car hit him in the back while he was thus going west; other witnesses who measured the distance say he was found, when run over, not more than fifteen feet west of the west line of Hickory street. There is still other evidence to the effect that he was hit while in the limits of Hickory street, and that the car pushed him westward. If not hit while on Hickory street, he was on Union avenue, both public streets. One or two persons, who were of the crew engaged in switching the cars, hallooed to him to get off the track, but it is evident he did not hear the warning, probably because of the noise of a passing train and that of two switch engines near the same place.
1. The defendant objected to the introduction of any evidence; this objection, it is contended, should have been sustained because the petition did not allege that the deceased was without fault on his part. It is the established law of this state that it is not necessary to state in the petition that the plaintiff or the deceased person was, at the time of the injury, in the exercise of due care or without fault. It is for the party who relies upon negligence, either as a cause of action, or a defence, to allege and prove it. Thompson v. Railroad, 51 Mo. 190; Lloyd v. Railroad, 53 Mo. 509; Petty v. Railroad, 88 Mo. 306; and many other cases.
2. The public as well as the defendant had the right to the use of the streets, and the defendant was at all times in duty bound to respect the rights of persons traveling thereon. The only purpose of making a flying switch was to save travel on the part of the engine. It is too plain to admit of a shadow of doubt that making a flying switch on a public highway, which is in constant use, and without the car being attended by and under the control of, a brakeman, is evidence of gross negligence. Kay v. Railroad, 65 Pa. 269; Butler v. Railroad, 28 Wis. 487. In Brown v. Railroad, 32 N.Y. 597, such an act was characterized as gross negligence, and it may be the better doctrine to say that such an act, under the circumstances disclosed in this case, is negligence per se. But the instructions given in this case do not require us to express any opinion upon that proposition. The court, by the instruction given at the request of the plaintiff, left it to the jury to say whether defendant was guilty of negligence, and by another, given by the court, of its own motion, the jury...
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