Donahoe v. Wabash, St. Louis & Pacific Ry. Co.

Decision Date31 October 1884
Citation83 Mo. 560
PartiesDONAHOE et al. v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
CourtMissouri Supreme Court

Appeal from Chariton Circuit Court.--A. W. MULLINS, ESQ., Special Judge.

REVERSED.

H. S. Priest for appellant.

Respondents ought not to have recovered either upon their own case, or upon the whole case as made. (1) Because of their contributory negligence in permitting their child to go upon and play about, unguarded and uncautioned, the appellant's track, over which they knew trains, both extra and regular, were accustomed to pass, and might be expected at any moment. Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 670; Moore v. Metropolitan Ry. Co., 2 Mackey (Dist. Col.) 437; Smith v. Ry. Co., 2 Am. & Eng. Ry. Cas. 12; Ry. Co. v. Brown, 49 Ind. 154; Hunt v. Greer, 72 Ill. 393; Callahan v. Bean, 9 Allen 401; City of Chicago v. Starr, 42 Ill. 174; Morrison v. Erie Ry. Co., 56 N. Y. 302; Ry. v. Hanlon, 53 Ala. 70; Ry. v. Brown, 40 Ind. 545; Ry. v. Huffman 28 Ind. 287; Cauley v. Ry., 2 Am. & Eng. Ry. Cas. 4; Ry. v. Hummel, 44 Pa. St. 375. (2) Because of the want of any proof of negligence on the part of appellant as to Mary Donahoe, the mother, or any causal connection between the negligence, if any, which injured the child and the injuries to her. Her independent volition and purpose intervened, caused her injuries, and broke the causal connection between the negligence of defendant and the result to her. Or, to put the proposition with more simplicity, the mother's injuries were not the natural and ordinary result of defendant's negligence. Her voluntary act interposed and added a new result. Schiffer v. Ry. Co., 105 U. S. 249; Lewis v. Ry. Co., Sup. Ct. Mich., June, 1884; St. Louis Ry. Reg., Aug. 9th, 1884, Vol. 9, p. 383; Henry v. Ry., 76 Mo. 288; Ry. v. Spearen, 47 Pa. St. 300. (3) Because of plaintiff Mary's contributory negligence, the court erred in giving the instructions asked by respondents. Maher v. Ry. Co., 64 Mo. 276; Yarnall v. Ry. Co., 75 Mo. 583; Frick v. Ry. Co., 75 Mo. 595; Halligan v. Ry. Co., 71 Mo. 113; Ry. v. Spearen, 47 Pa. St. 300; Walters v. Ry., 41 Ia. 78; Ry. v. Morgan, 82 Pa. St. 134; Meyer v. Ry., 2 Neb. 319; Telfer v. Ry., 30 N. J. L. 188; Bullene v. Smith, 73 Mo. 151; Price v. Ry., 72 Mo. 414; Ely v. Ry., 77 Mo. 34; Belt v. Goode, 31 Mo. 130; Cooke v. Thomas, 17 Mo. 329. Thompson on Charging Jury, p. 93; Harrison v. Cachelin, 27 Mo. 26; Kelly v. Ry., 75 Mo. 144; Gilson v. Ry. Co., 76 Mo. 282. The court improperly declared the law in the instructions given of its own motion. The court erred in refusing the instructions asked by appellant.

John Montgomery, E. A. Andrews and U. S. Hall for respondents.

(1) Contributory negligence cannot be charged against respondents under the circumstances of this case from their child being upon the railway track. (2) The respondent, Mrs. Donahoe, was not guilty of contributory negligence in risking her life in an effort to save that of her child. Wharton on Negligence, section 314; Eckert v. Ry. Co., 43 N. Y. 502; Ry. v. Hiatt, 17 Ind. 102; Lennihan v. Sampson, 126 Mass. 506; Shearman and Redfield on Negligence, p. 34. (3) The court properly declared the law in its instructions to the jury.

HENRY, J.

This suit is for the recovery of damages for injuries sustained by plaintiff, Mary, in attempting to rescue her child alleged to have been on the defendant's track in front of an approaching freight train. The evidence in the case does not, except in a few particulars which will be noted, differ very materially from that in the case of these plaintiffs against this defendant, for the killing of the child, decided at this term.

Mrs. Donahoe testified that the child was lying on the rail of the track trying to cross it. She did not so testify in the other case. Mrs. McAuliff testified that when she first saw the child it was lying across the rail on its hands and feet and the little girl was pulling it. This she did not testify to on the former occasion. Murray, the engineer, testified in this case “that he did not keep the woman in his vision all the time, didn't see her raising her hand or making any signal whatever.” In the other case he testified that she seemed to be excited and running faster. The indications of her excitement were quick movements, moving her arms, running and waving her hands.” Also, “that he was about 600 feet from the child when he shut off steam, running 25 miles per hour; that he was 200 feet when he reversed the engine. Did not call for brakes before he shut off steam, but couldn't say whether he called for brakes before he reversed the engine.”

It is unnecessary to state the evidence in relation to the alleged contributory negligence of the plaintiffs in permitting this child to be upon the track. That question was properly submitted to the jury in instructions given. The court gave five instructions of its own motion, seven asked for by plaintiffs, and refused twenty requested by defendant. Counsel, who ask so many instructions in a cause in which two or three, at most, could be submitted embracing all the law applicable, cannot expect this court to embody them in its opinion or notice them in detail. I shall not attempt it on this occasion, but ascertain if I can and declare the law and then determine whether the instructions given fairly presented it to the jury. Mr. Wharton in his work on Negligence says it was properly held in Eckert v. R. R., 43 N. Y. 502: “That a railroad is to be held liable for running over one who seeks to save a little child on its track whom it is about negligently to strike.” Sec. 314. Mr. Pierce in his work on Railroads says: “The fact that the injured person did some act by which he incurred or increased danger, does not necessarily involve negligence which will prevent recovery when the danger was created by some unlawful act of the company.” p. 328. He cites with approval Eckert v. R. R., supra; Linneham v. Sampson, 126 Mass. 506; and Gov. St. R. Co. v. Hanlon, 58 Ala. 70. The two cases last cited approve the doctrine of the case of Eckert v. R. R., supra; which is also approved by Shearman and Redfield in their work on Negligence. The case of the Evansville Ry. Co. v. Hiatt, 17 Ind. 102, is not in conflict with the foregoing authorities. There, no negligence of the railroad company was proved, nor from the report of the case does it appear that such negligence was alleged and the court in its opinion says they were guilty of no manner of negligence whatever.”

It is to be observed that it is only when the railroad company, by its own negligence, created the danger, or through its negligence is about to strike a person in danger, that a third person can voluntarily expose himself to peril in an effort to rescue such person and recover for an injury he may sustain in that attempt. For instance, if a man is lying on the track of a railroad intoxicated or asleep, but in such a position that he could not be seen by the men managing an approaching train and they had no warning of his situation, and another seeing his danger should go upon the track to save his life and be injured by the train, he could not recover, unless the train men were guilty of negligence, with respect to the rescuer, occurring after the beginning of his attempt. If the railroad company is not chargeable with negligence with respect to the person in danger, the case of the person who attempted to rescue him and was injured must be determined with reference to the negligence of the company in its conduct toward him and his in making the attempt. In other words, the negligence of the company, as to the person in danger, is imputed to the company with respect to him who attempts the rescue, and if not guilty of negligence as to such person, then it is only liable for negligence occurring with regard to the rescuer, after his efforts to rescue the person in danger commenced.

If this child was on the track, as testified by its mother and Mrs. McAuliff,...

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