Erwin v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 12 November 1888
• Parties: Erwin v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

9 S.W. 577

96 Mo. 290

Erwin v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

November 12, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

Bennet Pike for appellant.

(1) The demurrer to the evidence at the close of plaintiff's case should have been sustained. Morrissey v. Railroad, 126 Mass. 377; Powell v. Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo. 86; Taylor v Railroad, 86 Mo. 458; Fox v. Railroad, 85 Mo 679. (2) The instructions given at the instance of plaintiff and upon the court's own motion were erroneous. David v. Chicopee, 116 Mass. 93; Johnson v. Railroad, 125 Mass. 75; Wyatt v. Railroad, 62 Mo. 411. (3) The refusal of defendant's instruction was error. Zimmerman v. Railroad, 71 Mo. 476; Isabel v. Railroad, 60 Mo. 475; Harlan v. Railroad, 64 Mo. 480; Nelson v. Railroad, 68 Mo. 593; Cagney v. Railroad, 69 Mo. 416.

Henry Boemler for respondent.

(1) The defendant's negligence and the injuries to the deceased being shown, it was competent to infer that the latter was occasioned by the former and the connection between the two was properly left to the jury. Keim v. Transit Co., 90 Mo. 314; Persinger v. Railroad, 82 Mo. 196; Taylor v. Railroad, 83 Mo. 386. (2) Although defendant, at the close of plaintiff's case, offered a demurrer, it waived the point by going on with the case. The only permissible inquiry now is whether there is any evidence at all to sustain the verdict. Goodger v. Finn, 10 Mo.App. 226; Bolt & Iron Co. v. Brue, 8 Mo.App. 594. (3) When the undisputed facts relied on to establish contributory negligence are such as may, in the judgment of sensible men, lead to different conclusions thereon, the question should be submitted to the jury. Petty v. Railroad, 88 Mo. 306; Drain v. Railroad, 86 Mo. 574; Fink v. Furnace Co., 82 Mo. 276; Keenig v. Railroad, 12 Mo.App. 327; Barry v. Railroad, 92 N.Y. 289. (4) A failure to perform a duty enjoined by statute or ordinance is negligence, as matter of law, for which a recovery may be had by any person injured by reason thereof. Keim v. Transit Co., 90 Mo. 321; Drain v. Railroad, 86 Mo. 574; Mertz v. Railroad, 88 Mo. 672; Bowman v. Railroad, 85 Mo. 533; Johnson v. Railroad, 77 Mo. 551; Karle v. Railroad, 55 Mo. 476; Railroad v. Dunn, 78 Ill. 197.

Black J. Ray, J., absent.

OPINION

Black, J.

A train of defendant's cars, consisting of a locomotive and three freight cars, ran over and killed the plaintiff's son, a lad between eleven and twelve years of age, in the corporate limits of the city of St. Louis. This is a suit by the mother, the father being dead, to recover the statutory penalty of five thousand dollars.

The cause of action stated in the petition is the negligent violation of ordinance number 10,305 in this, that the train was moving at a greater rate of speed than six miles per hour; that the bell on the engine was not sounded; and that, though the train was backing, no man was stationed on the car at the end of the train furthest from the engine, to give danger signals. The defendant has a track running north and south on and along Front street, or the Levee, as variously called in the record. Locust street runs east and west, and on this street from Main street to the levee, a distance of about two hundred and fifty feet, there is a steep down grade. At the time of the accident, the boy was coasting down this grade, and was run over by the foremost of the three freight cars as they were being pushed northward on the track by an engine attached to the south end of the train. The evidence for the plaintiff, save that of one witness, tends to show that the train was moving at the rate of eight to twelve miles an hour; that there was no man on the car farthest from the engine, and that the bell was not sounded. The plaintiff's evidence also shows that this and another boy were going down the hill at a very rapid rate; that the other boy was sitting upon his sled, and as soon as he saw the train and just before he reached it, he threw himself off on the ground; that plaintiff's son was lying down with his stomach on the sled, and just as he ran on the track the front car truck ran over him.

The cross-examination of the engineer, who was called by the plaintiff, and the evidence of the fireman, the switch foreman, and a brakeman, all of whom were with the train, is to the effect that the cars were moving at a rate of speed not exceeding three miles an hour; that the fireman was ringing the bell, and that there was a brakeman on the third car, the one farthest from the engine. These witnesses say there was snow and ice on the track, so that they could not go fast; and one of the witnesses says he was, at the time of the accident, walking on the track in advance of the train.

The first contention of the appellant is, that an instruction, asked at the close of the plaintiff's evidence, to the effect that the plaintiff could not recover, should have been given. The plaintiff insists that defendant waived this request by putting in its evidence. The defendant, by putting in its evidence, after its request for such an instruction had been made and overruled, took the chances of curing any defect in the plaintiff's evidence; but did not entirely waive its right to have the ruling of the court reviewed. This court, however, in reviewing the ruling of the trial court on such a question, looks to the entire evidence in the case, no matter by whom offered, nor whether the demurrer to the evidence was interposed at the close of the plaintiff's evidence in chief, or at the close of all of the evidence. It is in this sense the same question is spoken of in Bowen v. Railroad, 95 Mo. 268, and in Guenther v. Railroad, 95 Mo. 286.

The evidence of the defendant's employes, in charge of the train, is all to the effect that there was no violation of the ordinance, and since they must have known what they were doing, and were in a position to judge of the rate of the speed of the train, the evidence does seem to preponderate in favor of the defendant; but there was much evidence of a contrary character offered by the plaintiff; and the law is well-settled and understood that this court cannot settle disputed questions of fact on conflicting evidence. That is a matter for the triers of fact.

If the freight train was running at a greater rate of speed than six miles an hour, or the bell was not ringing, or there was no man on the car farthest from the engine, then the defendant was guilty of negligence. A violation of the ordinance is, as we have often said, negligence per se. Keim v. Railroad, 90 Mo. 314, and cases cited. Here the train was moving on and along a public highway, and persons on the street have a right to presume that the company will obey the commands of the ordinance, and to act upon the presumption. A violation of this ordinance under such circumstances, is gross negligence. The evidence shows that the engineer could not see up Locust street, by...