Erickson v. Kansas City, O. & S. Ry. Co.

Decision Date06 February 1903
Citation171 Mo. 647,71 S.W. 1022
CourtMissouri Supreme Court
PartiesERICKSON v. KANSAS CITY, O. & S. RY. CO.

4. In a personal injury action against a railroad company by a flagman stationed at a street crossing defendant requested an instruction that it was the duty of the plaintiff at the approach of trains to exercise all reasonable care to avoid being struck, and if, before being struck, he could have known of the approach of defendant's train in time to have avoided the accident, he was not entitled to recover. The court had already charged that it was the duty of plaintiff to exercise the degree of care that an ordinarily prudent man engaged in that business, and under like circumstances, would have exercised. Held that, as the jury had been sufficiently instructed as to the measure of care required of plaintiff, and as the requested instruction was susceptible of meaning that it was plaintiff's duty to disregard the trains under his control at the time of the accident in order to care for his own safety, it was properly refused.

5. In an action against a railroad company by a flagman stationed at a street crossing for the purpose of signaling trains, in which it was alleged that the engine which injured plaintiff crossed without having received any signal to do so, that it was run at a rate of speed exceeding that permitted by a city ordinance, was without a headlight, and did not give warning by the ringing of the bell, an instruction requiring all these allegations of negligence to be concurrently proved in order to justify recovery was properly refused.

6. In an action against a railroad company, in which the evidence of negligence was sufficient to authorize the submission of that issue to the jury, the court gave instructions which in fact directed a verdict for defendant. A number of other instructions, however, were given, correctly submitting the case to the jury, who found a verdict for plaintiff. Held that, though the verdict was contrary to the law as contained in the two instructions, which practically directed a verdict for defendant, yet, under Rev. St. 1889, § 865, providing that on appeal the supreme court shall not reverse unless error was committed materially affecting the merits, the court would not reverse because of the jury's failure to follow the two erroneous instructions.

7. Where certain ordinances were admitted in evidence without objection, and no exception was afterwards taken to the overruling of a motion to strike them out, an objection that the defendant railroad had not accepted the ordinances cannot be raised for the first time on appeal.

Robinson, C. J., and Marshall, J., dissenting.

In banc. Appeal from circuit court. Jackson county; E. P. Gates, Judge.

Action by Frederick Erickson against the Kansas City, Osceola & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The following is the opinion in division No. 1:

VALLIANT, J.

Plaintiff recovered judgment for $6,000 as damages for personal injuries suffered through the alleged negligence of the servants of defendant in operating a locomotive engine, from which judgment defendant appeals.

The petition is to the following effect: The defendant is a railroad corporation running its engines and cars in Kansas City on tracks of the Kansas City Suburban Belt Railway Company, called the "Belt Road," from a point in the intersection of Wyandotte and Second streets along Second street eastwardly crossing Main and Walnut streets and Grand avenue. Other railroad companies besides the defendant operate their trains over this Belt road. The Metropolitan Street Railway Company owns and operates a single-track cable road crossing the tracks of the Belt road on Grand avenue at right angles. On November 17, 1896, plaintiff was in the employ of the Belt Company as flagman, stationed at this crossing, his duties were to flag all trains passing there. At that time there was in force an ordinance of the city which provided that no railroad engine should be run within the city limits at a greater rate of speed than six miles an hour, and that no one in charge of such locomotives should allow it to be run between sunset and sunrise without having a large lamp or headlight or lantern conspicuously placed in front in the direction in which it is running, whether forward or backward. About 10 o'clock at night on the date above mentioned plaintiff was in his place of duty at the crossing, engaged in flagging two trains going west on the north track of the Belt road, when he was struck by an engine of the defendant going east on the south track, knocked down, run over, permanently injured and disabled for life. The injuries were the result of the negligence of the defendant's servants in charge of the engine in this: running the engine at a greater rate of speed than six miles an hour without having any large lamp, headlight, or lantern conspicuously displayed in front in the direction in which the engine was going, and without ringing a bell. The averment in the original petition as to this last point was that the engine was being run "without ringing any bell or sounding any whistle on approaching said street crossing, as was its duty to do." But on motion of the defendant all of that averment after the word "bell" was stricken out. The answer was a general denial, and a plea that the plaintiff was himself guilty of the negligence which wholly occasioned his injuries by attempting, without any necessity for doing so, to cross the railroad tracks in front of a moving train, with full knowledge of the danger of the situation. The reply was a general denial.

The evidence for the plaintiff tended to prove as follows: The plaintiff was the employé of the Belt Company. His duty was to flag all trains at that crossing. On the night in question, about 10 o'clock, he was standing in the street car track south of and near the south track of the Belt road. He had just flagged a street car to stop, and had flagged a passenger train of the Chicago & Great Western (called the "Maple Leaf") road to come on. This Maple Leaf train was coming east. It had to cross on the north track to the east of Grand avenue, and then switch back west, to reach its station at Second and Wyandotte streets. Under the rules governing the operation of the trains, this train at that time had the right of way, and no freight train or switch engine could some in on the south track without interfering with its movement. The Maple Leaf train passed east over the crossing. Then the plaintiff stepped out of the street car track, and flagged the street car to cross to the north, which it did. There was another street car behind that one, which the flagman held for the time, and, as soon as the first street car passed over the crossing, he stepped back on the street car track, very close to the south track, turned to the east, and gave the signal to the Maple Leaf train to come back, which it did. There was another train, belonging to what they called the "Air Line," behind the Maple Leaf train, going in the same direction, to which the plaintiff also signaled to come on, and while he was in the act of giving that signal a switch engine of the defendant, coming from the west on the south track, struck him, knocked him down, and inflicted serious injuries. The plaintiff's position, when he stopped the first street car, and flagged the Maple Leaf train to come east over the crossing, was in the street car track near the south rail of the south track of the Belt road, facing west. From that position he looked, and would have seen the defendant's engine coming on the south track if there had been a headlight on it; but there was none. From the time he turned his face east to signal the Maple Leaf train to come back until he was struck was, according to his testimony, not more than half a minute, though one of plaintiff's witnesses on cross-examination said, "Well, as near as I can tell, it was between one and two minutes." The engine that struck the plaintiff was running backward, with tender in front, and the headlight was at the front end of the engine. It was downgrade. The engine was running fast. The witnesses varied in their estimates from 10 to 30 miles an hour. It came down the grade without making any noise, and no bell was rung. The night was dark, and there was no street light at the crossing. On the part of the defendant the evidence as to rate of speed, absence of headlight, and failure to ring the bell was contradictory to that of the plaintiff. After the city ordinances referred to in the petition had been read in evidence by the plaintiff, the defendant moved to strike them out "for the reason that they are not made, by their terms, applicable to anybody but to the employés of the...

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