Crowley v. St. Louis

• Decision Date: 04 January 1887
• Citation: 24 Mo.App. 119
• Parties: TIMOTHY CROWLEY, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 119

TIMOTHY CROWLEY, Respondent,

v.ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 4, 1887.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

HENRY G. HERBEL and BENNETT PIKE, for the appellant: The defendant's demurrer to the evidence at the close of the plaintiff's case should have been sustained, as the plaintiff's own testimony discloses such contributory negligence on his part as will preclude a recovery herein. Hixson v. Railroad, 80 Mo. 335; Turner v. Railroad, 74 Mo. 602; Taylor v. Railroad, 86 Mo. 457; Henze v. Railroad, 71 Mo. 636; Stepp v. Railroad, 85 Mo. 235; Milburn v. Railroad, 86 Mo. 110. The court erred in refusing the instructions asked by the defendant. Railroad v. Beale, 73 Pa. St. 504; S. C., 13 Am. Rep. 753, and authorities above cited. The court erred in giving the instructions of its own motion. Yarnell v. Railroad, 75 Mo. 583; Goodwin v. Railroad, 75 Mo. 75; Turner v. Railroad, 76 Mo. 262; Dunn v. Railroad, 21 Mo. App. 205.

FRANK M. ESTES, for the respondent: The instructions, taken together, present the case fairly and properly. Karle v. Railroad, 55 Mo. 476; Johnston v. Railroad, 77 Mo. 546. The negligence of the railway company was the proximate cause of the injury. Kelley v. Railroad, 18 Mo. App. 150. The defendant's demurrer to the evidence at the close of the plaintiff's case was by the court properly overruled. Dunn v. Railroad, 21 Mo. App. 200, and cases cited.

ROMBAUER, J., delivered the opinion of the court.

This is an action to recover damages for personal injuries. There was a verdict for the plaintiff for fifteen hundred dollars, which was reduced by remittitur to eight hundred dollars, for which amount judgment was entered.

The negligence of the defendant company stands admitted by all the testimony, and the only two questions presented by the record are: (1) Whether the plaintiff was admttedly guilty of such contributory negligence as to debar him from recovery as a matter of law? (2) Whether the court erred in refusing the defendant's instructions on the question of contributory negligence, and in the instructions it gave on its own motion on that subject, and on the question of damages.

What acts on the part of a plaintiff will amount to conclusive evidence of contributory negligence, must necessarily depend on the surrounding circumstances of each individual case, and, therefore, it is impossible to frame a rule which will fit all cases, or to mould the instructions in one case on the pattern of those in another. Brown v. Railroad, 50 Mo. 467; Lloyd v. Railroad, 53 Mo. 512; Clark v. Famous Shoe Co., 16 Mo. App. 465.

The facts of this case, as they appear by the plaintiff's testimony, are as follows: The plaintiff on the day of the accident drove a coal team, on a public street of the city, eastwardly, towards a ferry boat lying at the levee. He was driving at a usual hour, on a usual and frequented route, at a slow gait, at early dawn when objects were not distinctly discernible, near the intersection of two streets across the defendant's track, when his wagon was struck by the defendant's engine, resulting in the injury complained of. The defendant had two tracks at said place close together. The wagon was struck on the eastern track. The western track was filled with standing box cars closing the view of the eastern track, from the west entirely, and leaving a space of only about thirty feet between the cars, for a crossing space, through which the plaintiff was driving when his wagon was struck. The defendant had no watchman at said place, as required by an ordinance of the city, and the box cars were standing on the western track in violation of another ordinance. No whistle was sounded in approaching the crossing nor was the bell of the engine rung. The plaintiff's team was one of four teams driving in company towards the ferry. The first team had crossed safely about fifty feet ahead of the plaintiff's without stopping, and all four teams were traveling over the stone paved streets when the accident occurred. The track of the defendant was planked, and an engine moving along, at a slow rate of speed, as this was, would make no noise only where the rails joined. The plaintiff did not stop to listen, nor did it appear that listening would have been of any avail to him, under the facts appearing in evidence, considering the noise the moving wagons necessarily made, and the noiselessness of the slowly moving engine. Nor did the plaintiff stop to look along the track, but it necessarily appeared that he could not have done so with any benefit, without dismounting from his wagon, and temporarily abandoning his horses, because the defendant's track was straight, and was blocked from view, in the direction whence the plaintiff came, by the line of standing box cars.

This statement of facts will show that the court acted properly in refusing...