Haley v. Missouri Pac. Ry. Co.

• Decision Date: 22 May 1906
• Citation: 93 S.W. 1120,197 Mo. 15
• Parties: HALEY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

93 S.W. 1120

197 Mo. 15

HALEY v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

May 22, 1906.

1. RAILROADS — NEGLIGENCE — INJURIES TO PERSONS ON TRACK—PETITION—SUFFICIENCY.

Where, in an action against a railroad for injuries received by plaintiff in a collision between the team he was driving and defendant's train, the petition alleged that the train was moving at a speed in violation of a city ordinance, and in a subsequent paragraph alleged that defendant, at the time, negligently ran its train at an unlawful speed, to wit, at a rate of speed greater than 15 miles an hour, further alleging that the street whereon the plaintiff was driving was so narrow that there was not sufficient room between defendant's track, and the curbing for the train to pass without striking his wagon, etc., with specifications of other facts going to show negligence without reference to the ordinance, the petition sufficiently charged common-law negligence, it appearing that, prior to the accident, the ordinance had been repealed.

2. NEGLIGENCE — PLEADINGS — SEVERAL ACTS OF SAME NATURE.

In an action for damages through negligence, several acts of negligence of the same nature, all of which may be true, and either or all whereof together may have caused the accident, may be pleaded in one count.

3. RAILROADS — COMMON-LAW NEGLIGENCE— CITY STREETS—RATE OF SPEED—CARE REQUIRED.

It is the duty of a railroad running its train through a street of a populous city to use ordinary care to regulate the speed of the train so as not to injure any one, and failure to use such care is negligence at common law.

4. SAME—QUESTION OF FACT—QUESTION OF LAW.

In the absence of a statute or ordinance regulating the rate of speed for trains run through city streets, the question whether or not a given rate of speed is negligence is ordinarily one of fact, and not of law, and depends on the conditions surrounding the act.

5. SAME—QUESTIONS FOR JURY.

In an action for injuries sustained by plaintiff in a collision between the team he was driving and defendant's train, the evidence held to require submission of question of negligence in running the train at the speed of 20 miles an hour.

6. SAME—JUSTIFICATION FOR RATE OF SPEED.

The fact that the grade of a railroad track laid in a street of a populous city was such that a freight train could not ascend it without the aid of the momentum to be acquired by a high rate of speed, did not justify the railroad in running its train at such speed where the so doing rendered it liable to injure people who without negligence on their part, might be on the street, or rendered it impossible for the engineer to stop the train in time to prevent such injury after seeing the danger.

7. SAME—PLEADINGS—INCONSISTENT ALLEGATIONS.

Allegations in a petition in an action against a railroad for injuries to one on the track, charging negligence in the matter of speed, and also charging that defendant negligently failed to stop its train in time to avoid the injury after the danger was apparent, were not necessarily inconsistent.

8. SAME—NEGLIGENCE—WHAT CONSTITUTES.

While it is negligence to run a railroad train into a place where danger of collision is to be expected, at such a rate of speed that the train could not be quickly stopped, on appearance of danger, the railroad is not liable to one injured for failing to stop the train after discovering the peril, if in fact, the speed was such that the engineer could not stop the train.

9. SAME—CONTRIBUTORY NEGLIGENCE.

The fact that one injured in a collision between the wagon he was driving and a railroad train knew that he was liable to encounter a train in the street where the accident occurred, and that the street was so narrow he could not pass a train, with his wagon, did not render it negligence per se for him to drive in the street.

10. SAME—SUFFICIENCY OF EVIDENCE.

In an action against a railroad for injuries sustained by plaintiff in a collision between the wagon he was driving and defendant's train, evidence held insufficient to show contributory negligence as a matter of law.

Graves and Marshall, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Dennis Haley against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Martin L. Clardy and Henry G. Herbel, for appellant. Edward Celiot and V. Mott Porter, for respondent.

PER CURIAM.

The following opinion by VALLIANT J., in Division No. 1, is adopted as the opinion of the court in banc.

BRACE, C. J., GANTT and LAMM, JJ., concur. BURGESS and FOX, JJ., concur in the result. GRAVES, J., dissents.

VALLIANT, J.

Defendant has a railroad track extending from the south along the Wharf or Levee, as it is usually called, turning west into Poplar street, thence along Poplar street west to a distant point in the city. While the plaintiff, on February 12, 1901, was driving a two-horse wagon in Poplar street, a locomotive drawing a freight train on defendant's road struck the wagon causing the plaintiff to be thrown therefrom and severely injured. In the petition it is stated that there was at that time a city ordinance forbidding the running of a locomotive or train on a steam railroad in the city at a greater rate of speed than six miles an hour; that this was a steam railroad, and that this locomotive and train were running at a speed in excess of that rate. After pleading the ordinance and the facts requisite to constitute a violation of it, the petition goes on to state that the defendant then and there "negligently and wrongfully ran its train * * * at a great and unlawful speed to wit, at a rate of speed greater than 6 miles an hour, and greater than 15 miles an hour." Then follow averments to the effect that the width of defendant's engine and cars was such that they so occupied, monopolized, and obstructed the street that there was not left sufficient space in the street for an ordinary wagon or the wagon plaintiff was driving to pass without being struck by the engine, and, under those conditions, the defendant so wrongfully and negligently ran its train as to render it impossible for plaintiff to pass or escape; that it was a long train propelled by a locomotive at the rear end pushing, and another at the front drawing, and that defendant thus so operated the train that the man in charge of the rear engine could not see to the front in time to foresee and avoid collision; that the train was so negligently operated that it was not stopped or arrested as soon as might have been done after the engineer of the front engine discovered the plaintiff on the street and knew or by the exercise of ordinary intelligence would have known that only by prompt stopping of the train could the collision be avoided. The petition then charges that from those wrongful and negligent acts the accident resulted. The answer was a general denial and a plea of contributory negligence. Reply general denial.

The testimony for the plaintiff tended to prove as follows: Poplar street runs east and west; in that part of it to which our attention is now directed it is narrow. There is a stone curbing on each side marking off the space for sidewalks; the sidewalks are of cinders. The width of the street is 20 feet 8 inches from curb to curb. When a train is on the track there is not space between it and the curb on either side for a wagon of ordinary width to pass. Defendant's track comes from the south along the Levee and curves west across a vacant lot into Poplar street. Main street running north and south crosses Poplar street. From the west line of the Levee to the east line of Main street the distance is 226 feet. Main street there is 38 feet 6 inches wide. Between Main and the next parallel street west, there is an alley which comes from the north and ends in Poplar street. On the south side of Poplar street opposite the mouth of the alley is a vacant lot. From the east line of this alley to the west line of Main street the distance is 161 feet; so that from the east line of the alley to the west line of the Levee the distance is 425 feet 6 inches. Standing at a point in the center of the alley on the north line of Poplar street looking east one could see an object on the railroad track on the Levee 540 or 545 feet distant. From the Levee to the alley the track rises in grade 1 foot 9 inches to the 100 feet, making a total rise in that distance of 10 feet, 11½ inches. Plaintiff was a teamster for the Charter Oak Stove Company. He was driving a two-horse stake wagon; the driver's seat of which was seven or eight feet above the ground. He was going south in the alley; his aim was to go to the Iron Mountain Depot which was south of Poplar street; when he came to...