Hudson v. Wabash & W. Ry. Co.

• Decision Date: 30 October 1888
• Parties: EDWARD HUDSON, Respondent, v. WABASH & WESTERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

32 Mo.App. 667

EDWARD HUDSON, Respondent, v. WABASH & WESTERN RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

October 30, 1888

Appeal from the St. Louis City Circuit Court. --HON. GEORGE W LUBKE, Judge.

AFFIRMED (and certified to the supreme court. )

H S. Priest, for the appellant.

The acts of negligence stated in the petition had no causal connection with the plaintiff's injuries--were not proximate causes of the injuries--and the demurrer to plaintiff's evidence should have been given. Clark v Railroad, 39 Mo. 191; Henry v. Railroad, 76 Mo 293; Brown v. Railroad, 20 Mo.App. 222; Shearm. & Redf. [4 Ed.] sec. 25, et seq.; Marble v. Worcester, 4 Gray 395. The demurrer to plaintiff's evidence should have been sustained because of his contributory negligence. Railroad v. Pinchin, 31 Am. & Eng. Ry. Cases, 428; Stillson v. Railroad, 67 Mo. 671; Lewis v. Railroad, 38 Md. 588; Gahagan v. Railroad, 1 Allen 187; Beach Contr. Neg. sec. 72. It was error to give instruction number three of plaintiff's series, because the petition alleged that the injuries were occasioned " without any fault on his [[[[[[[plaintiff's] part," and the answer denied this averment, and thus the issue of plaintiff's contributory negligence was raised. " As the plaintiff averred that the killing was done by the negligence of defendant, without any negligence or fault of plaintiff's husband, and the defendant denied these allegations, the question of negligence on the part of the deceased husband of plaintiff was in issue, and we may assume that there was evidence on this issue, and therefore the court was properly required to instruct on this point." Karle v. Railroad, 55 Mo. 482.

Smith P. Galt, for the respondent.

Plaintiff's instruction number three is the law. Contributory negligence is an affirmative defense, and must be pleaded by defendant to be available. Donovan v. Railroad, 89 Mo. 147; Thorpe v. Railroad, 89 Mo. 651; Petty v. Railroad, 88 Mo. 306; How v. Hunt, 13 West. Rep. 698; Buesching v. Gas Co., 73 Mo. 233. Defendant relies on Karl v. Railroad, 55 Mo. 482; but that quesiton was not in controversy in that case, and the extract quoted from the opinion therein was ill-considered and is not the law. If there was error in the giving of plaintiff's instruction number three, it would be no ground for reversal, as there was no testimony in the case tending to prove contributory negligence on the part of the plaintiff. It was not negligence for the plaintiff, knowing that the train had obstructed the track for more than five minutes, and knowing that there was no watchman or brakeman there as required by law, to believe that they would not move the train without notice, and act accordingly. Moberly v. Railroad, 17 Mo.App. 542; Kellog v. Railroad, 26 Wis. 223; Johnson v. Railroad, 77 Mo. 551; Buesching v. Gas Co., 73 Mo. 232; Barton v. Springfield, 110 Mass. 131; Snow v. Provincetown, 120 Mass. 580; Smith v. City, 45 Mo. 449; Thompson on Neg. 1203-1206; Shearman & Redfield on Neg. sec. 4. The acts of negligence charged in the petition--the violations of the ordinance, and after so violating it and when so violating it, moving the train without any notice or warning to plaintiff--did cause the injuries, or directly contributed thereto, for without those acts, the injuries would not have been received. The violations of the ordinance were negligence per se. Boggs v. Railroad, 18 Mo.App. 278; Backenstoe v. Railroad, 23 Mo.App. 156; Karle v. Railroad, 55 Mo. 483; Johnson v. Railroad, 77 Mo. 552.

OPINION

ROMBAUER P. J.

The plaintiff, while attempting to pass between two cars coupled together and forming part of defendant's coal train standing at right angles across a public street of the city of St. Louis, received permanent injuries owing to the fact that the cars were shoved together with a sudden jolt, and in an action founded on defendant's negligence recovered a judgment, to reverse which this appeal is prosecuted.

As an objection is made to the sufficiency of the petition, and a question is raised as to the issues framed by the pleadings, we set the petition and answer out in full.

The petition states: " The plaintiff complains of defendant, and for his cause of action states that defendant is now, and was at the times hereinafter mentioned, 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; that on the eighth day of November, 1887, there was in force in said city sections 1234, 1235, 1237, 1239 and 1240 of an ordinance of said city, number 14,000, entitled, ‘ an ordinance in revision of the ordinances of the city of St. Louis, and to establish new ordinance provisions for the government of said city,’ approved April 12, 1887, which said sections are in words as follows, to-wit:

Section 1234. It shall not be lawful for any person or corporation to run any cars in the city of St. Louis, propelled in whole or in part by steam power, along or across any improved street within the city limits, unless said person or corporation shall station at each cross or intersecting improved street a watchman, who shall display at the crossing of cars in the daytime a red flag, and at night-time a red light. Any person or corporation violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof in the police court of the city, shall be fined not more than five hundred nor less than one hundred dollars for each and every offense.

Section 1235. It shall not be lawful for any person, for himself or in the employ of any person or corporation, whether as engineer, conductor or brakeman, to run, or assist in running, any car or cars propelled in whole or in part by steam, along or across any improved street, unless a watchman is stationed at each and every cross and intersecting improved street, with proper signals, as provided in section one thousand two hundred and thirty-four. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, before the police court of the city, be fined not less than twenty-five dollars nor more than one hundred dollars for each and every offense.

Section 1237. Whenever the words ‘ improved streets' occur in this article it shall be construed to mean all streets improved on each and every side of all railroad track or tracks, by being macadamized, or otherwise improved with such other material usually used in the construction or reconstruction of the streets.

Section 1239. It shall not be lawful, within the limits of the city of St. Louis, for any car, cars or locomotives, propelled by steam power, to obstruct any street crossing, by standing thereon, longer than five minutes, and when moving, the bell of the engine shall be constantly sounded within said limits, and if any freight car, cars or locomotives, propelled by steam power, be backing within said limits, a man shall be stationed on top of a car at the end of the train farthest from the engine, to give danger signals, and no freight train shall at any time be moved within the city limits unless it will be manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals and hear the signals from the engine. The steam whistles of danger shall in no case be sounded except in giving the usual signals in running trains.

Section 1240. Any person, persons or corporations violating the provisions of the next two preceding sections, shall be deemed guilty of a misdemeanor, and upon conviction thereof in the police court of this city, shall be fined not more than five hundred dollars nor less than one hundred dollars for each and every offense.

That on the said eighth day of November, the defendant, unmindful of its 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 said cars, the same being a train of cars, farthest 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 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 stand 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 four...