O'donnell v. Missouri Pacific R.R. Co.

• Decision Date: 06 May 1879
• Citation: 7 Mo.App. 190
• Parties: ANTHONY O'DONNELL, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

7 Mo.App. 190

ANTHONY O'DONNELL, Respondent,

v.MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

May 6, 1879.

1. No recovery can be had, in an action for damages for injury to the person, where the negligence of the plaintiff mingles with that of the defendant as a direct and efficient cause of the injury.

2. To sustain a verdict there must be substantial evidence, and the inference drawn by the jury must be reasonable; a mere formal statement of a witness to fill up a gap in the case, is insufficient.

APPEAL from St. Louis Circuit Court.

Reversed and dismissed.

T. J. PORTIS and E. A. ANDRES, for appellant: There is no evidence of any negligence on the defendant's part causing the injury.-- Meyer v. Railroad Co., 64 Mo. 542. The plaintiff was guilty of such contributory negligence as will prevent a recovery.-- Artz v. Railroad Co., 34 Iowa, 153; Railroad Co. v. Miller, 25 Mich. 274; Meyer v. Railroad Co., 6 Mo. App. 27; Isabel v. Railroad Co., 60 Mo. 475; Harlan v. Railroad Co., 64 Mo. 480; 65 Mo. 22.

SMITH P. GALT, for respondent: The instructions as to negligence and contributory negligence were correct.-- Isabel v. Railroad Co., 60 Mo. 482; Karle v. Railroad Co. 55 Mo. 483; Hicks v. Railroad Co. 64 Mo. 439; Frick v. Railroad Co., 5 Mo. App. 435.

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

The demurrer to the evidence should have been sustained as the plaintiff's testimony showed that his own negligence directly contributed to the injury. He was upon the track when struck by the tender of the locomotive, which was backing eastward toward the Union Depot in St. Louis, to get a train, and not upon any highway or street crossing the track. The plaintiff had been for about four years accustomed to walk upon or between the railroad tracks at or near the place where the accident happened, in going to and coming from his work. About eight o'clock in the morning in question, the day being clear, he went upon the track on Tayon Avenue to go eastward, looked westward to see if any engine was approaching, and, after walking between the rails for a short distance, again looked back, and seeing nothing, continued to walk upon the track between the two rails as before. This track was one of the middle tracks, and along on it came the tender which, pushed by the locomotive, struck the plaintiff, injuring him, but not so severely that he could not get up and walk away. The plaintiff testifies that no whistle was blown or bell rung, and that he did not hear any noise of tender or engine as they approached him. The defendant's evidence tended to prove that there were men upon watch on the locomotive; that the bell was ringing all the time; that the plaintiff was seen by those on watch, or some of them; that when the tender approached him he was not upon, but near, the track; and that, as the engine slowly backed down, he attempted to cross directly in front of the tender, and so was injured.

In cases like the present, we start with the primary fact that the plaintiff is negligent. He was where he had no right to be, and was not the less violating the law because he was accustomed to violate it every day and was not prevented by the defendant. It is true that if the evidence shows that this negligence of the plaintiff, though clearly, as it is, a condition without which the injury could not have existed, is by other facts more immediately surrounding the injury so far removed as to be only a remote condition, it is then, like other remote conditions, disregarded by the law. This is the foundation of the rule that where the defendant can, by the exercise of ordinary care, discover the danger and avoid the result, the fact that the plaintiff is negligent does not excuse the defendant. This implies that the physics of the case are such that the law can pronounce that the efficient or legal cause of the injury is the negligence of the defendant. But this can never be the fact, and accordingly the court is bound to take the case from the jury, where, up to the very moment of the injury the negligence of the plaintiff mingles, as an effcient and equally operating cause, with the negligence of the defendant. To say otherwise is to say that a plaintiff may recover for an injury directly caused by his own negligence.

In the case at bar, allowing that the defendant was negligent, yet it is clear from the plaintiff's testimony that his negligence was an effective and operating cause up to the very moment of the injury. He was not a child but a man in full possession of his senses. He was not caught upon the track for a moment, nor was he there through causes beyond his control. He chose to walk, not at the side, but between the rails. He knew that cars were constantly passing; knew even the peculiarities...