Donohue v. St. Louis, Iron Mountain & Southern Railway Co.
| Decision Date | 06 December 1886 |
| Citation | 2 S.W. 424,91 Mo. 357 |
| Parties | Donohue v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant |
| Court | Missouri Supreme Court |
Bennett Pike for appellant.
(1) The court below committed error in refusing to sustain the demurrer to the evidence at the close of plaintiff's testimony. Harlan v. Railroad, 65 Mo. 22; Henze v. Railroad, 71 Mo. 636; Purl v. Railroad, 72 Mo. 168; Johnson v. Railroad, 77 Mo. 551; Turner v. Railroad, 74 Mo. 602; Hixon v. Railroad, 80 Mo. 335; Carlin v. Railroad, 37 Iowa 316; O'Keefe v. Railroad, 32 Iowa 467. (2) The court erred in giving the instructions asked by plaintiff. O'Keefe v. Railroad, 32 Iowa 467; Rine v Railroad, 88 Mo. 392. (3) The court erred in refusing to give the instructions asked by the defendant. Johnson v Railroad, 77 Mo. 552; Turner v. Railroad, 74 Mo. 602. (4) The court erred in giving the instructions on its own motion. Railroad v. Ryan, 80 Ill. 528; Allyn v. Railroad, 105 Mass. 77; Benton v. Railroad, 42 Iowa 192; Railroad v. Mitchell, 52 Miss. 808; Gorton v. Railroad, 45 N.Y. 660; Railroad v. Elliott, 28 Ohio St. 340; Fletcher v. Railroad, 64 Mo. 484; Leduke v. Railroad, 4 Mo.App. 485; Railroad v. Heileman, 49 Pa. St. 60; Railroad v. Miller, 25 Mich. 274.
A. R. Taylor and D. McGowan for respondent.
(1) There was no legal obligation on the part of the deceased to keep his eyes fixed on the train up to the moment of crossing the track, even if his view were free from obstruction, but, under all the circumstances, the question whether he was in the exercise of ordinary care was one of fact for the jury. Bonnell v. Railroad, 39 N. J. Law, 189. (2) One in a state of danger will not be held to that nice discrimination as to his acts which he might have exercised when uninfluenced by fear. Macon v. Davis, 27 Ga. 113; 1 Thompson on Neg. 430. (3) When a train comes from a direction where it could not have been seen at the time, it was not incumbent on the person, crossing, to look in that direction. The deceased could not see southward till he passed the row of houses which obstructed his view in that direction. McGem v. Railroad, 2 Daly, 76; Chicago v. Lee, 87 Ill. 454; Railroad v. Transfer Co., 32 N. J. 95. (4) The deceased, under all the circumstances, not only acted with care and prudence, but with extreme caution. The company, in running their train at such a high rate of speed, through the city and across the public streets, were guilty of gross negligence, and the case was properly submitted to the jury under instructions. Karle v. Railroad, 55 Mo. 476; Railroad v. Dunn, 78 Ill. 197, 199; Railroad v. Becker, 84 Ill. 483; 1 Thompson on Neg. 418, with authorities therein cited. (5) Where a train is run at a rate of speed greater than that prescribed by statute or local ordinances, the negligence of the company is usually characterized as gross. Karle v. Railroad, 55 Mo. 476; Railroad v. Dunn, 76 Ill. 197 and 199; Mossoth v. Canal Co., 64 N.Y. 524 and 531; 1 Thompson on Negligence, 418, with authorities therein cited. (6) The case was a proper one for the jury. McGrath v. Railroad, 63 N.Y. 523; Baltimore v. Miller, 29 Md. 252; 1 Thompson on Negligence, 419. (7) If the statutes require the ringing of the bell or the sounding of the whistle at a crossing, whether in country or town, the failure to comply with the law will render the company liable. Fletcher v. Railroad, 64 Mo. 484; Railroad v. Dill, 22 Ill. 264; Railroad v. McLean, 40 Ill. 218; Railroad v. Bell, 70 Ill. 102. (8) It is well settled, both in principle and authority, that the municipal authorities in large towns have the right to adopt such ordinances as the one cited, by virtue of their general supervision over the police of their respective jurisdictions. Merz v. Railroad, 14 Mo.App. 463; Whitson v. City, 3 Ind, 396; Railroad v. City, 5 Hill [N. Y.] 209; 13 Mo, App. 589. (9) If the engineer or managers of the train discovered the negligence of deceased in time, by use of ordinary care, to prevent the injury, and did not make use of such care for the purpose, they are justly charged with recklessness, and cannot rely on the negligence of the plaintiff as a protection. Brown v. Railroad, 50 Mo. 461; Burham v. Railroad, 56 Mo. 338; Railroad v. State, 33 Md. 542 and 554; Kelly v. Railroad, 75 Mo. 138.
Plaintiff brought this suit in the circuit court of the city of St. Louis, to recover damages for the death of her husband, alleged to have been killed by the negligence of defendant in running its locomotive, without ringing its bell, at a reckless and unlawful rate of speed, over Dorcas street, in said city. Plaintiff obtained judgment which, on appeal to the St. Louis court of appeals, was affirmed pro forma, from which an appeal is prosecuted to this court.
At the close of plaintiff's evidence defendant asked an instruction by way of demurrer to it, which was refused, and this action of the court is the first ground of error assigned. A demurrer to the evidence admits the facts the evidence tends to prove, and, in passing upon it, the court is required to make every inference of fact in favor of the party offering the evidence which a jury might, with any degree of propriety, have inferred in his favor, and if, when viewed in this light, it is insufficient to support a verdict in his favor, the demurrer should be sustained. Buesching v. St. Louis Gas Light Co., 73 Mo. 219. The evidence in this case shows that defendant had three tracks crossing Dorcas street in the city of St. Louis, one of them being a switch track leading to the car shops, the next one to it being the south-bound track, and designated, by the witnesses, the west track, and the next one to it being the north-bound track, and designated by the witnesses as the east track. The distance between the switch track, and the west or south-bound track, was estimated to be from ten to twenty feet, and the distance between the latter track and the east, or north-bound track, was estimated by a majority of the witnesses to be five or six feet, some of them saying it was ten feet.
On the day of the accident, Donohue, the husband of plaintiff, was driving, at a moderate gait, a one-horse spring wagon, going from west to east, on and along said Dorcas street, and on approaching the switch track, his attention was attracted to an engine on the said track to the north of him. He was looking at this engine while driving over the switch track, and until he got on the west track, when he looked south and saw the engine on the east track approaching the crossing, about thirty yards from him, when he stood up, struck his horse, whose forefeet were at the time off the east track, but before the crossing was made the horse and wagon were struck by the engine, and he was instantly killed. The evidence tends to show, and does show, that, Donohue did not stop his wagon, nor look south, till he got on the west track; it tends, also, to show that in consequence of the view being obstructed by a row of houses, deceased could not, if he had looked, seen the approach of an engine coming from the south on the east-bound track till he got on the west track, from which point a train approaching from the south could be seen at a distance of two or four blocks, and there was nothing to prevent those managing the train from seeing the perilous condition of deceased.
The following ordinances were also put in evidence:
It was shown, by uncontradicted evidence, that the train which killed the deceased was running at a rate of speed of from fifteen to thirty miles an hour without ringing its bell, and the evidence tended to show that south of the crossing where deceased was struck, the track was straight and level, and the persons in charge of the engine had an unobstructed view for from one hundred to three hundred yards, and that there was nothing to hinder them from seeing the perilous condition of the deceased. According to the evidence of some of the witnesses, the speed of the train was not checked till the collision occurred, and by the evidence of others, that it was not checked till in about five feet of deceased. It was testified to by two witnesses that a train running at the rate of fifteen miles an hour could have been stopped, with proper appliances, in fifty feet. Applying the rule laid down in the Buesching case, supra, to the above state of...
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