Dahlstrom v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 01 March 1892
• Citation: 18 S.W. 919,108 Mo. 525
• Parties: DAHLSTROM v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

18 S.W. 919

108 Mo. 525

DAHLSTROM v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 1, 1892.

RAILROAD COMPANIES — ACCIDENTS AT CROSSINGS — INSTRUCTIONS — EVIDENCE — TRIAL.

1. Plaintiff was injured while attempting to cross the defendant's track in a city. He attempted to cross between cars standing from 25 to 50 feet apart. He looked before he attempted to cross, and saw the cars, but did not see that they were moving. Held, that the evidence did not sufficiently show contributory negligence to warrant withdrawing the case from the jury.

2. Running a train in a city in violation of a city ordinance is negligence per se.

3. Whether a train is "well manned with experienced brakemen at their posts," within the meaning of a city ordinance, is a question for the jury.

4. Where an instruction is asked in regard to the credibility of plaintiff as a witness, it is proper to modify it so as to make it applicable to all the witnesses.

5. It is not error to allow plaintiff's counsel, upon the second trial of a case, to state to the jury that in the first trial the defendant introduced no witnesses.

SHERWOOD, C. J., dissenting.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Action by John F. Dahlstrom against the St. Louis, Iron Mountain & Southern Railway Company for damages for personal injuries. Plaintiff obtained judgment, and defendant appeals. Affirmed.

H. S. Priest and H. G. Herbel, for appellant. Everett W. Pattison, for respondent.

BRACE, J.

This is an action for damages for personal injuries received by the plaintiff on Main street, in the city of St. Louis, by being struck and run over by the cars of the defendant on said street. The plaintiff obtained a verdict and judgment in the trial court for $10,000, and the defendant appeals. On a former appeal a judgment in favor of the plaintiff for $7,500 was reversed and remanded. 96 Mo. 99, 8 S. W. Rep. 777.

The second trial, resulting in the judgment from which this appeal is taken, was had, upon an amended petition, presenting the case in a different shape from that in which it appeared here before. The plaintiff, in his amended petition, after alleging the incorporation of the defendant, sets out the following ordinance of the city of St. Louis, in force at the time he received his injuries: "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 obstruct any street crossing by standing thereon longer than five minutes, and, when moving, the bell of the engine shall be constantly sounded within said limits; and if any freight-car, cars, or locomotives propelled by steam-power be backing within said limits, a man shall be stationed on top of the car at the end of the train furthest from the engine to give danger signals; and no freight train shall, at any time, be moved within the city limits without it be well manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals, and to hear the signals from the engine." He then alleges that on or about the 14th day of April, 1884, defendant had and maintained a large number of tracks, switches, and sidings upon and along Main street, a public highway, in said city of St. Louis, and its said tracks so laid on said Main street crossed many of the public highways of said city, and, among others, Chouteau avenue. On the morning of said April 14, 1884, plaintiff, in the pursuit of his proper business, and as he was lawfully entitled to do, was walking east on said Chouteau a venue for the purpose of crossing said Main street at the point of intersection of said street with said avenue. At that time defendant had blocked and obstructed the crossing of said Chouteau avenue and Main street with its freight-cars, and allowed its said cars to stand obstructing said street crossing more than five minutes; and thereupon plaintiff, being unable to cross at Chouteau avenue, walked along said Main street in a southerly direction from Chouteau avenue, until he found an opening between the cars standing on said Main street, said opening being from 25 to 50 feet in width. Thereupon plaintiff, not seeing any cars in motion, and hearing no danger signals, and not receiving any warning that any of said cars were in motion or were about to be put in motion, started to cross said Main street through said opening between the cars. While thus crossing Main street, he was, through the carelessness, and negligence of defendant's servants in charge of its freight-cars, struck by a freight-car which was being backed on one of the tracks laid upon and along said Main street, was knocked down and run over by said freight-car and others, as well as by the locomotive propelling the same, was thereby mangled and bruised, and had one of his legs and one of his arms cut off. Plaintiff says that the car by which he was struck, and those by which he was injured, were then and there being backed by a steam-locomotive, and that no bell was sounded, and there was no man stationed on top of the car at the end of the train furthest from the engine, and no lookout kept to warn parties on said street, and no danger signals nor warning of any kind was given; that by reason of this failure on the part of the agents and servants of defendant in charge of said freight-cars to keep a proper lookout, and to give proper and usual signals of danger, and by reason of a failure and neglect upon their part to comply with the provisions of the ordinance of St. Louis, aforesaid, plaintiff received the aforesaid injuries," and for his damages asks judgment. The answer was a general denial, and a plea of contributory negligence, on which issue was joined by reply. At the close of plaintiff's evidence the defendant interposed a demurrer, which being overruled, the defendant introduced evidence, and, after all the evidence was in, renewed its demurrer by asking the court to instruct the jury that under the pleadings and all the evidence the plaintiff is not entitled to recover, which was refused.

It appears from the evidence that on the east part of Main street between Chouteau avenue and La Salle or Sycamore street the defendant maintains six tracks, running north and south longitudinally on the street. Three of these tracks extend north beyond Chouteau avenue, and three (switch or side tracks) to about the middle of the avenue. On the first of the latter three, being the fourth track from the west side of Main street, at a point south of the avenue, and between it and La Salle street, the unfortunate casualty happened. The plaintiff was struck by the last car of a series or train of box freight-cars being backed at the time by a switch-engine north on said track. In backing, the engine and cars, or a part of them, passed over his body. His cries attracted the attention of one of the defendant's employes at work repairing cars at a distance of about 120 or 150 feet from him, who ran to him and pulled him out from beneath the train while it was passing over him again, in being drawn out from the track to be switched onto another. None of the trainmen saw the plaintiff, heard his cries, or knew they had run over him until several minutes afterwards, when they learned of it from others, when at some distance from the scene, engaged in their work on another track. The plaintiff is a Swede, about 48 years of age, with a limited knowledge of the English language, in which he expresses himself with difficulty. He is a heavy blacksmith, and was earning at the time of his injury about $18 per week, at light work. When engaged at heavy work, for which he was best fitted, he made from $100 to $120 per month. The injuries he received, as described by the physician, were two or more scalp wounds on top of his head, a crushing and contused wound in the fleshy part of the thigh, about the middle, on the outside. The left leg was crushed below the knee, and the left thigh about the middle third, — the bones, flesh, and all crushed. The left arm was crushed about the middle, and he had a flesh and skin wound near the groin on the left side. These injuries necessitated the amputation of the left thigh at or about the beginning of the upper third, and the left arm about the middle of the upper third, and, after his wounds healed, left him an almost helpless cripple for life, with but one arm and one leg. The plaintiff's evidence tended to prove that on the morning of the collision he, in the pursuit of legitimate business, had occasion to go down on the levee east of Main street. For this purpose he went down Chouteau avenue till he came to Main street, which he found blocked by freight-cars standing on defendant's tracks at that crossing. He then turned and went south on Main street until be came to an opening between the standing cars, which appeared to him to be made for the purpose of enabling persons to pass across the street. He characterizes this opening between the standing cars as a "street;" "not a big street, a kind of middle-sized street." He says: "There were many cars, but they don't move. If they move, I don't intend to cross over. They don't move when I was there, — no engine was moving. There was no whistle or bell sounding. There was no man on top of the cars." Seeing no engine and no cars moving, and hearing no signals or noise of moving cars, though his hearing was good, he entered this opening, and endeavored to make his way over to the east side. He passed over two tracks in safety. He says: "I am sure of two, may be three. I was hurted may be on the third or fourth; I can't tell that." On cross-examination, being asked if he looked south (the direction from which the car came that struck him) as he passed onto the track on which he was injured, he answered: "I am almost sure I did. * * * It is my nature to look on both sides when I cross the street. * * * Before I walk I look. * * * I looked. * *...