Dunkman v. Wabash, St. L. & P. Ry. Co.

Decision Date06 June 1887
CourtMissouri Supreme Court
PartiesDUNKMAN v. WABASH, ST. L. & P. RY. CO.

Plaintiff was injured by a train of freight cars while they were backing into a coal-yard, without having a man stationed on top of the car at the end of the train furthest from the engine, to give danger signals, as required by an ordinance of the city of St. Louis. Held, in an action for damages, that, notwithstanding the plaintiff may have been guilty of contributory negligence, the railroad company was still liable for the injury if it could have been prevented by the exercise of reasonable care on the part of the company, after discovery of the danger in which the plaintiff stood, or if the company failed to discover the danger through its own recklessness, when the exercise of ordinary care would have discovered it, and averted the calamity. SHERWOOD, J., dissents.

Appeal from St. Louis court of appeals.

A. R. Taylor, for appellant. W. H. Blodgett, for respondent.

RAY, J.

This action was brought in the St. Louis circuit court, by the plaintiff against the defendant, to recover damages, on account of personal injuries sustained by reason of alleged negligence on the part of the agents and servants of defendant in the conduct and management of an engine and train of cars within the limits of said city. At the trial before the circuit court, there was a verdict and judgment for plaintiff, from which defendant appealed to the St. Louis court of appeals, where the judgment of the circuit court was reversed, and the cause remanded; from which the plaintiff appealed to this court.

A brief digest of the opinion of the court of appeals is found in the appendix to 16 Mo. App. at pages 547 and 548, and is to the effect following: "(1) An objection to the introduction in evidence of an ordinance, on the ground that the subject is not clearly expressed in its title, cannot be made for the first time on appeal. (2) Such an objection is waived if not made at the trial. (3) The rule that negligence of the plaintiff which contributes directly to cause the injury complained of will prevent his recovery, is without exception or qualification." The opinion itself is found in the record before us, but is not otherwise reported, except as above stated.

The petition (as said by the court of appeals) predicates the plaintiff's right of recovery upon the violation of an ordinance of the city of St. Louis, numbered 10,305, which requires the observance of certain precautions in the running of locomotives and cars, propelled by steam, in the city of St. Louis. The parts of that ordinance material to the case will be noticed hereafter.

The answer contained — First, a general denial; second, contributory negligence on the part of the plaintiff. The third branch of said answer was to the effect following: That the spur railroad switch track on which the injury occurred was upon the private grounds of Donk Bros. & Co., owned and operated by them as a coal-yard, for their exclusive use and benefit as coal merchants; and that for the purpose of facilitating the reception of car loads of coal, and selling same to their customers, without unloading, said Donk Bros & Co. had caused, by agreement with defendant, said switch track to be connected with the railroad track of defendant adjacent thereto, under an agreement between defendant and said Donk Bros. & Co. that the latter should keep a watchman to notify employes or their patrons of the approach of trains and warn them to get out of the way of danger; and that the persons so employed in said yard, and especially plaintiff, had knowledge thereof, and were accustomed to rely on said watchman for warnings of danger; and that plaintiff's injuries were caused by failure of said watchman to warn him of the approach of defendant's engine and cars, while moving on said spur track, or by his failure to look and listen to said watchman for such warnings from said watchman, and not by any fault of defendant's servant. The reply was a general denial.

The evidence in the record tends to show the nature and extent of the injury complained of, and that, at the time of the injury, the plaintiff was standing upon a coal car of the defendant, upon a certain switch, or "spur railway track," in the coal-yard of Donk Bros & Co., unloading coal from said car into a wagon belonging to his employer, Allewell; that the servants of defendant, in charge of a locomotive engine of defendant, backed a freight train of cars against a car adjacent to the one on which plaintiff was standing, with such force and violence as to throw the plaintiff from the car on which he was standing, in such manner as to cause the injuries complained of; that the engine and train of cars approached the plaintiff from behind; that he was, at the time, looking at the coal upon the car which he was engaged in unloading, and that, while so engaged, he did not stop or turn to look or listen for the approach of an engine or train, although he was aware that they were accustomed and liable to come in on said "spur railway track," at frequent intervals; that plaintiff, while so engaged, seemed unconscious of the approach of said engine and train, until the concussion and accident took place; that the bell upon the locomotive was not being sounded, nor was there a man on the top of the car furthest from the backing engine, to give danger signals, as required by said city ordinance, and that there was nothing to obstruct the plaintiff from the view of those in charge of the approaching backing train, if they had been at their post, and attentive to the situation of things in plain view. The evidence was conflicting as to the ringing of the bell, but there was no pretense that there was a man on top of the car furthest from the backing engine; nor was there any pretense but what the plaintiff might have seen and heard the approaching train, if he had looked and listened, in time to have got out of the way.

The city ordinance in question was offered in evidence by plaintiff, to which the defendant made only general objections, on the score of incompetency, irrelevancy, and immateriality; and also because it was not pleaded in substance, or in hœc verba, etc. Section 2 of that ordinance is as follows: "Sec. 2. 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 hear the signals from the engine. The steam-whistle of danger shall in no case be sounded except in giving the usual signal for running trains.

At the close of the plaintiff's evidence, and also at the close of all the evidence, the defendant asked instructions in the nature of a demurrer to the evidence, which the court overruled, and defendant excepted.

At the close of the evidence, the court gave eight instructions for plaintiff, and five for defendant. Nine instructions asked by defendant were refused. The instructions given covered the different aspects of the case material to notice, as made by the pleadings and the evidence in the cause. The court of appeals, after disposing correctly of the objections, there made for the first time, to the introduction in evidence of the ordinance in question, then proceeds as follows: "The other grounds on which we are asked to reverse the judgment relate to the giving and refusing of instructions. We have looked carefully through the instructions. They bear, for the most part, internal evidence of having been very carefully considered, in the light of what we...

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