Fore v. Chicago & Alton Railway Company
| Decision Date | 06 November 1905 |
| Citation | 89 S.W. 1034,114 Mo.App. 551 |
| Parties | P. R. FORE, Appellant, v. CHICAGO & ALTON RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Lafayette Circuit Court.--Hon. Samuel Davis, Judge.
AFFIRMED.
Wm Aull and Alexander Graves for appellant.
(1) In considering the instructions in the nature of a demurrer to the evidence, every reasonable intendment in favor of the plaintiff must be drawn and the evidence offered in his behalf must be regarded as absolutely true. Gratiot v Railroad, 116 Mo. 466; Kenny v. Railroad, 105 Mo. 285. (2) The violation of such ordinances being negligence per se, it logically follows that actions for damages for their violation may be based thereon. Jackson v. Railroad, 150 Mo. 643; Murrell v. Railroad, 105 Mo.App. 93; Keim v. Railroad, 90 Mo. 321. (3) Nothing in the evidence tends to prove that plaintiff was at all negligent in failing to discover the approach of the passenger train, there being no bell rung nor whistle sounded thereon. Gessley v. Railroad, 32 Mo.App. 418, citing also Railroad v. Goebel, 1 West. (Ill.) 691. (4) Considering all the facts and circumstances shown by the evidence quoted and referred to in the statement ante, there is absolutely no ground to support the claim in the answer that plaintiff assumed the risk of injury as being incident to the employment. Blanton v. Dold, 109 Mo. 75. (5) Nor can the defendant be excused on the ground of accident if the evidence quoted and referred to tends to prove that the injury was the combined result of accident and defendant's negligence. Vogel v. West Plains, 73 Mo.App 591.
Richard Field and Scarritt, Griffith & Jones for respondent.
(1) Whether or not the statutory road crossing signals were given at the time in question is immaterial in this case for plaintiff was not a traveler upon the highway, nor was he upon a road crossing at all. He could not therefore plead and rely upon the neglect of such duty by defendant. Bell v Railroad, 72 Mo. 50; Melton v. Railroad, 99 Mo.App. 282; Evans v. Railroad, 178 Mo. 508; Dahlstrom v. Railroad, 96 Mo. 99; Christy v. Railroad, 12 S. E. (W. Va.) 1111. (2) There is not a particle of evidence that the escaping steam from the freight engine as it started up was due to any negligence whatever. It was not shown that there was any defect in the engine or anything wrong or even unusual in its operation. It is not shown that the escaping steam was unnecessary or avoidable under the conditions existing. There is no pretense that the steam was discharged upon the plaintiff intentionally. Wendall v. Railroad, 100 Mo.App. 556. (3) In order to rely upon a breach of a speed ordinance as negligence per se the same must be specially pleaded. This plaintiff failed to do. Another sufficient answer is that this ordinance was not admitted in evidence and the action of the lower court in excluding same is not assigned as error in appellant's record and brief. (4) The burden was upon the plaintiff to prove by competent evidence that the speed in excess of six miles an hour was the proximate cause of the injury. Moore v. Railroad, 176 Mo. 528; Kelley v. Railroad, 75 Mo. 138; Hudson v. Railroad, 101 Mo. 13; Holman v. Railroad, 62 Mo. 564; Breen v. Cooperage Co., 50 Mo.App. 202. (5) The proximate cause of plaintiff's injury was, on his own testimony, unquestionably his own conduct in stepping backward onto the main track immediately in front of the passenger train when he knew that the main track was there and that trains passed upon the same frequently, and when he must have known that the passenger train was due or past due, for it was his duty as a section hand to know, and he admits that he knew the hour the train was due, and had seen this freight train waiting there on the passing track, without other apparent purpose than to meet the passenger train, some twenty or thirty minutes. (6) It is for the court, not the jury, to consider and pronounce the legal conclusion flowing from the admitted or ascertained facts. Evans v. Railroad, 178 Mo. 508; Davies v. Railroad, 159 Mo. 1; Maxey v. Railroad, 113 Mo. 1; Moore v. Railroad, 176 Mo. 528.
Plaintiff's suit is to recover damages alleged to have been sustained as the result of defendant's negligence. On the 2nd day of July, 1903, plaintiff with other laborers in the employ of the defendant was engaged at work on defendant's track within its switch limits near the station house in the town of Blackburn. Main street runs north and south through the town and defendant's station house is situated on the west side thereof. Defendant has three tracks south of its depot, which intersect said street. One of these is the main, one a passing, and the other a switch track. On the occasion in question, a freight train from the west pulled onto the passing track to await a westbound passenger train, which was behind schedule time. It stopped west of said street. While it was stationary, the plaintiff, who was under the supervision of a foreman and who was engaged at work on the passing track west of said street, continued his labor of tamping material under the end of the ties until he got up near the engine of the freight train, and, while he was so engaged, the passenger train approached from the east. When it arrived at about opposite the freight engine, the engineer started up his train, which had the effect of throwing off steam against plaintiff, who stepped backward until he was near the main track, when he was struck by the engine of the passenger train and injured.
It was shown that the distance between the passing track and the main track was six feet and eleven inches.
There was evidence tending to show that the passenger train neither sounded the whistle, nor rang the bell; that its speed was about twelve miles an hour; that such speed was in excess of the rate prescribed by an ordinance of the town; and that plaintiff did not know that the said train was late, as he had no timepiece, although he knew when it was scheduled to arrive. The ordinance regulating the speed of train within the town limits was excluded by the court. Other evidence pertaining to the issues raised will be noted in the progress of this opinion. The court sustained a demurrer to plaintiff's case as made by his evidence, from which action of the court he appealed.
The plaintiff seeks to recover upon the following allegations, to-wit: The act of defendant in stopping its freight train at the place where plaintiff was engaged in his work; the failure of the engineer in charge of the west-bound passenger train to ring the bell or sound the whistle in approaching the crossing of Main street; in approaching the station within the limits of the town in excess of the rate of speed prescribed by ordinance, and the act of the engineer in suddenly ringing the bell and starting the engine in motion, and discharging hot steam against plaintiff's person.
The passing track, upon which the freight train entered, was 1,430 feet in length, of which 930 feet laid on the west side of said Main street, and upon which part the freight...
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