Hudson v. Wabash W. Ry. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Sherwood, J.
• Citation: Hudson v. Wabash W. Ry. Co., 101 Mo. 13, 14 S.W. 15 (Mo. 1890)
• Decision Date: 19 May 1890
• Parties: HUDSON v. WABASH W. RY. CO.

14 S.W. 15

101 Mo. 13

HUDSON v. WABASH W. RY. CO.

Supreme Court of Missouri.

May 19, 1890.

RAILROAD COMPANIES — ACCIDENTS AT CROSSING — OBSTRUCTION OF HIGHWAY — CONTRIBUTORY NEGLIGENCE — PLEADING.

1. In an action against a railroad company for personal injuries, defendant cannot avail itself of the defense of contributory negligence unless it is affirmatively pleaded.

2. The fact that the petition in such case alleges that the injuries were caused without fault on plaintiff's part is not sufficient to raise the defense of contributory negligence.

3. Where plaintiff's evidence shows circumstances of contributory negligence which defeat his right of action, defendant can take advantage of it, though the special defense of contributory negligence has not been pleaded.

4. In such case, it is the duty of the trial court to declare the result of such circumstances to the jury as a matter of law.

5. A person who attempts to cross a street which is obstructed by a train of cars by stepping on the coupling-pins, and climbing across, without looking to see if there is an engine attached, is guilty of such contributory negligence as will prevent his recovery from the railroad company for injuries sustained by the sudden starting of the train.

6. Plaintiff cannot be relieved in such case from the effects of his negligence by the fact that there was an ordinance prohibiting railroad companies from obstructing streets with their cars.

BLACK and BARCLAY, JJ., dissenting.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

This cause has been transferred to this court under the provisions of section 6 of the constitutional amendment respecting such transfers. The action is for damages caused by injuries to plaintiff. The petition, after certain recitals as to the defendant being a railroad corporation, sets forth certain ordinances of the city; then states that "on the said 8th day of November the defendant, unmindful of duties in that regard, did, by its servants, carelessly and negligently, and in violation of said sections 1234, 1235, 1237, and 1239, commit the following acts, to-wit: It did obstruct a street crossing, to-wit, Montgomery street, of said city, by permitting freight-cars propelled by steam-power to stand thereon longer than five minutes, and did not cause the bell of the engine to be constantly sounded when moving said cars at the place and time aforesaid, and did then and there back said cars, and did not have a man stationed on the top of the car, at the end of the said cars, the same being a train of cars, furthest from the engine, to give danger signals, and did then and there move said train of freight-cars without it being well manned, with experienced brakemen at their posts, and so stationed as to see the danger signals, and hear the signals from the engine, if any should be made; and did then and there, by its servants in charge thereof, run its cars in said city, across said street, the same being an improved street, as provided in said sections 1234, 1235, and 1237, without any watchman being then and there stationed, as provided for in said sections 1234 and 1235, who might have warned, as it would have been his duty to do, the plaintiff of his danger of being injured as he then and there was, as hereinafter stated; and defendant did then and there, after having left its cars standing across said street as aforesaid more than five minutes, negligently move the same without any notice or indication to plaintiff that it was going to do so. That, by reason of said careless and negligent acts of the defendant, the plaintiff, without any fault on his part, was caught between two of said cars then and there, and had his foot smashed, torn, and broken, so that he has since then been unable to work, to his loss and damage on that account of $400, and has been and will be put to great expense for medical services on account of said injuries, to the amount of $100, and did suffer great pain of body and mind, and has been permanently maimed and crippled, by reason of said injuries, to his damage in the sum of $2,000. Wherefore plaintiff prays judgment against defendant for the sum of $2,500 and his costs." The answer was as follows: "Now comes the defendant in the above-entitled cause, by its attorneys and, for answer to the petition of plaintiff therein filed, admits that it is, and was on the 8th day of November, 1887, a corporation engaged in operating cars and locomotives propelled by steam-power in the city of St. Louis and state of Missouri, and as such corporation was duly incorporated under the laws of the state of Missouri. Defendant denies each and every other allegation contained and set forth in plaintiff's said petition. Wherefore, having fully answered, defendant prays to be discharged, with its costs." These ordinances were admitted in evidence over the defendant's objections, but were conceded to be in force at the time the injury occurred.

The testimony of the plaintiff, which was substantially all the testimony offered shows how the injuries occurred, and to sustain his action, was the following: "Edward Hudson, plaintiff, testified as follows: My name is Edward Hudson. I live at No. 2,516 North Broadway, and have lived in the city ten years on the 20th of June. I know Montgomery street, in this city. It is about a block and a half from my place. It has always been called a public street. It is a macadamized, improved, public street, and was such on the 8th of last November; was macadamized on both sides of the railroad track. I live south of Montgomery street. Know the track of the Wabash Western Railway Company. I live south-west of the track; that is, west of the track, and south-west of where it crosses Montgomery street. I am the plaintiff in this case. [The witness was here shown a plat, and, indicating upon it, said:] This line represents Broadway, — that runs north and south, — and the street running across Broadway towards the river represents Montgomery street. I live in the second block south of Montgomery, on the east side of Broadway, at this point, [indicating.] This point [indicating] represents where I was hurt on the 8th of November last. That is the fourth track from the west side. On that day I was working at Schulenburg & Boeckler's mill. The mill was on east side of St. Louis avenue, near the edge of the river, east of Broadway and east of the railroad tracks. These lines here indicate the location of the Wabash Western track. In going from my house to the place where I was working, I went out of the back gate in the back yard. Montgomery is a street that runs east to the river, and the railroad track runs north and south. Mr. Priest. I submit it is immaterial where he was working, or which way he was going, or for what purpose he was going. It is an immaterial fact in this case. The Court. The plaintiff is entitled, of course, to show what he was doing, and how he came to be doing it, as bearing upon the question of his own exercise of care. Mr. Priest. There is no plea of contributory negligence in this case. The Court. You do not claim there is any? Mr. Priest. That is not a question. It is not claimed that he was unlawfully where he was on a public street. The Court to Mr. Galt. It is not very essential for you to prove that he was there lawfully, for they admit that he was there lawfully. Mr. Priest. I don't admit that what he was attempting to do was lawful. Question, by Mr. Galt. I will ask whether you were working that day at Schulenburg & Boeckler's mill. (Counsel for defendant objected upon the ground that it is immaterial. Objection overruled, and exception taken.) Answer. Yes, sir. Q. State what time you left work to go home to dinner? (Counsel for defendant objected upon the same ground. Objection overruled, and exception taken.) A. I left at 12 o'clock sharp from the mill. The whistle blew for 12 o'clock. Q. About how long did it take to go from the mill to your home, to dinner? (Counsel for defendant objected upon the same ground. Objection overruled, and exception taken.) A. Between 8 and 9 minutes, at a slow gait. I had to cross over the Wabash Western track. I got dinner, and started back to the mill. Left my kitchen at 12:29. Before I got to my back gate the 12:30 whistle blew at Schulenburg & Boeckler's mill. I walked to the Montgomery-Street crossing. As I was about getting to the street, two laboring men — I don't know who they were — passed by the street, going east. They goes right on the train. They get on down, and goes on to the house. I suppose I was fully 25 steps from there before I got down to the train. When I got down to the train, I stopped and waited there about eight minutes. The 12:40 whistle blowed, and I put my hand on the train after standing there 8 minutes, and undertook to jump over and get to my work, to secure my job. I did not want to lose it. I had a family to take care of. It took me two minutes to walk from my home to the Montgomery-Street crossing, where the train was. The minute I jumped on the train, and started to cross, either the locomotive must have backed, or the other must have backed on the north track, — this coal train. I had my foot between the two pin-heads north and south, confined by them, and they bruised and skinned my right foot. By that time my left foot was confined, and when it crushed it run it under the drawhead. I was then confined. I hung there a minute or two minutes. At that time the train swung apart that way. Then I got it out. I fell over on the east side of the track. I laid there then, in the dust. I felt my foot. It was crushed all to pieces. I stayed therefully fifteen minutes. Finally the whistle blew for one o'clock. The coal train drew from Montgomery street. I got two pieces of plank, put them under my arms, and hobbled home. It was some minutes after one. I got my wife to run for a doctor, and he came. The train extended to North Market street, as far...