Dickson v. Missouri Pac. Ry. Co.

• Decision Date: 19 May 1891
• Parties: DICKSON v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

16 S.W. 381

104 Mo. 491

DICKSON v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

May 19, 1891.

ACCIDENT AT RAILROAD CROSSING — VIOLATION OF ORDINANCE — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

1. An ordinance of St. Louis made it unlawful to run cars by steam along and across any improved street unless a watchman was stationed at each cross or intersecting street. At the trial the witness and the attorneys spoke of the levee as a street, and of the junction of Gratiot street and the levee as a crossing. It was shown that they were both improved. The attorney for the railroad company objected to the introduction of the ordinance on the ground that there was no crossing at the point of the accident, but he continued to assume in his questions to witness that there was a crossing there. Held, that it was not error to assume in the charge that Gratiot street intersected the levee, and that the levee was a street.

2. The court having charged that the plaintiff was entitled to recover if the accident was caused by the neglect of the company to keep a watchman at the crossing, and if neither the plaintiff nor the driver of the wagon on which he was riding was guilty of such negligence as directly contributed to the injury, the instruction is not erroneous because it did not require that the absence of the watchman must have been the direct proximate cause of the accident.

3. Where a number of witnesses testify that the bell of an engine was ringing, and an equal number that they did not hear it, though in a position to do so, the question is for the jury.

4. Evidence that the company's servants in charge of the engine discovered the plaintiff's peril in time to have avoided the injury is admissible under an averment that the injury was "solely attributable to the carelessness and negligence of the defendant, its servants and agents, in the negligent and careless manner in which said engine and cars were managed and moved."

5. The plaintiff was riding in the front end of a large smoke-stack which was being driven along the levee in a wagon. When the wagon was within a few feet of Gratiot street a switch-engine stopped on the crossing. This determined the driver to turn into Gratiot street. In turning the corner the wagon had to run over one of the railroad tracks, and it was struck by a train. By looking back through the smoke-stack the plaintiff might have seen the train in time to jump. Held, that the question of contributory negligence was for the jury.

Appeal from St. Louis circuit court; L. B. VALLIANT, Judge.

Bennett Pike, for appellant. D. P. Dyer, for respondent.

THOMAS, J.

This is an action for personal injuries. Respondent obtained judgment in the circuit court of the city of St. Louis for $3,875, and the defendant has appealed. The allegations of the petition with respect to the cause of the injuries complained of are, in the first place, that these injuries are attributable to the carelessness and negligence of the defendant, its servants and agents, in the negligent and careless manner in which the engine and cars were managed and moved. The petition further sets out as causes of these injuries the violation of ordinances of the city of St. Louis, which contain the following provisions, namely: (1) That it shall not be lawful for a corporation to run cars propelled in whole or in part by steam along or across any improved street, unless such corporation shall station at each cross or intersecting street a watchman, who shall display at the crossing of cars in the day-time a red flag, and in the night-time a red light; (2) that it shall be unlawful for an engineer to run any car or cars along or across such street, unless such watchman is stationed at each and every cross or intersecting street with said signals; and (3) that whenever an engine shall be moving in said city, the bell of such engine shall be constantly sounded. The answer of defendant was a general denial, and a plea of contributory negligence on the part of plaintiff. The facts are briefly these: The plaintiff and Francis Hanlon were in the employ of John O'Brien, whose place of business was at Main and Biddle streets in the city of St. Louis. On December 13, 1887, they were on a wagon, which was in the charge of and being driven by John Murphy, a driver for O'Brien. To this wagon was fastened a smoke-stack, which was about 20 feet long and 36 inches in diameter, and the wagon was taking the plaintiff, Hanlon, and the smoke-stack, from said O'Brien's place of business to the Iron Mountain depot, which was on the levee, a short distance below Gratiot street, and for this purpose was being driven southwardly down the west side of the levee in said city. Murphy sat in front, and did the driving, while the plaintiff and Hanlon sat in the smoke-stack, the plaintiff at the front and Hanlon at the rear end. While the wagon was being thus drawn southwardly down the levee, and when it had come within a very few feet of the crossing of Gratiot street, an engine came from the south, and stopped near that crossing. The levee was covered with quite a number of railroad tracks. The westernmost was that of the defendant. In driving down the levee to the Iron Mountain depot a wagon would have to go along that side of the levee which lay west of the track of the defendant. The space left to the west of the track, and in which the wagon would be driven, was 40 feet wide for the most part, but narrowed towards Gratiot street, until at the corner of that street on the north side it was only five feet from the curb-stone to the track. When Murphy saw this engine he stopped the wagon, and he, plaintiff, and Hanlon watched its movements. The engine finally stopped. When Murphy saw that, owing to the engine in front of him, he could not cross the levee as he had intended, he concluded to turn into Gratiot street, and proceeded to do so. In so doing his wagon necessarily came upon the track, and was struck by the defendant's engine, which came from the north or rear of the wagon, and by this collision the plaintiff suffered injuries, and it is for these that he sued and recovered in this action. It is conceded that the evidence shows that defendant had no watchman at the crossing when and where the accident occurred. The ordinance referred to in the petition was read in evidence.

At the instance of plaintiff, the court instructed the jury as follows: "(1) If the jury find from the evidence that Gratiot and First or Levee streets, where the two intersect, were improved on each and every side of the railroad tracks extending along said First or Levee street, by being macadamized or otherwise improved with such other material usually used in the construction or reconstruction of streets, then it became the duty of the defendant to station a watchman at the intersection of said streets, and a failure to do so would be negligence on its part; and if you find that the injury complained of by plaintiff was caused by such negligence on the part of the defendant, then the plaintiff is entitled to recover in this action, if you further find from the evidence that neither the plaintiff nor the driver of the wagon on which he was then riding was guilty of such negligence as directly contributed to the accident that caused the injury. (2) If the jury find from the evidence that the defendant's agents and servants in charge of the engine that struck the wagon upon which plaintiff was riding did not, while said engine was in motion, constantly sound the bell thereon, and that in consequence thereof the injury complained of was occasioned, then the plaintiff is entitled to recover, unless you shall further find that the plaintiff or the driver of the wagon was guilty of such negligence as directly contributed to the accident that caused the injury. (3) If the jury find for the plaintiff, they will assess the damages at such sum as they may believe from the evidence will compensate him for loss of time, expense incurred for medical attendance, and all mental and bodily pain and anguish he has suffered, together with such sums as will compensate plaintiff for any permanent injury or incapacity (if any) they may believe from the evidence he has sustained by and from such injuries so received and resulting directly therefrom. (4) Although you may believe from the evidence that the plaintiff and the driver of the wagon upon which plaintiff was at the time of the accident riding, were guilty of negligence in going upon the railroad track, yet if you further find from the evidence that the danger in which the plaintiff was thus placed was discovered, or by reasonable diligence could have been discovered, by the person in charge of the engine in time to have prevented the accident, then the plaintiff is entitled to recover in this action, notwithstanding such negligence on the part of the plaintiff or the driver of said wagon." To the giving of which instructions, and each of them, defendant at the time excepted. The defendant prayed the court to give the following instructions: "The court instructs the jury that under the pleadings and all the evidence in this case plaintiff is not entitled to recover. The court instructs the jury that they will disregard all the evidence offered by plaintiff as to there being no watchman at the foot of Gratiot street." Which instructions the court refused to give, to which action of the court defendant at the time excepted. The defendant asked, and the court gave the following instructions: "(5) The court instructs the jury that if they believe from the evidence that the driver in charge of the wagon on which plaintiff was riding at the time of the accident did not constantly look both north and south to ascertain whether an engine or train was approaching on the track on which the wagon was struck, and did not listen for the sound of a bell or whistle thereon, and plaintiff got upon said track, and was struck in...