Jennings v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 15 November 1892
• Court: Missouri Supreme Court
• Parties: JENNINGS v. ST. LOUIS, I. M. & S. RY. CO.

20 S.W. 490

112 Mo. 268

JENNINGS v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 2.

November 15, 1892.

RAILROAD COMPANIES — PERSONAL INJURIES — CONTRIBUTORY NEGLIGENCE — EVIDENCE — ERROR — WAIVER.

1. Where defendant introduces evidence after a motion, made at the close of plaintiff's evidence, to withdraw the case from the jury, is overruled, any error committed in overruling the motion is thereby waived.

2. The rule that a person who goes on a railroad track, or proposes to cross it, must use his eyes and his ears to avoid injury; and that, if he fails to do so, and is injured, he cannot recover, notwithstanding the negligence of the railroad company, — is not of universal application, but has exceptions under exceptional circumstances.

3. In an action against a railroad company for injuries received at a much used street crossing in a city, it appeared that the street was crossed north and south by some 30 of defendant's tracks; that it failed to have gates on either side of the tracks, and two watchmen, and brakemen on its cars, and to ring the engine bell, at the time of the injury, as required by ordinance of the city; that plaintiff was familiar with the crossing; that a train of freight cars extending partly into and south from the crossing stood on the first track west of the double main tracks, which are located within seven tracks of the west side of the yard; that when walking west, before reaching the main tracks, plaintiff saw an express train coming south; that he crossed the main tracks, and looked south; that he saw the smoke of an engine, but saw no one on top of any cars, and heard no bell; that he saw that the crossing west was open; that while walking westward, and watching the express train, he was struck by cars moving north on the third track west of the main tracks, which had been "kicked" by an engine from a point some 350 yards from the crossing; that, after plaintiff passed the train of freight cars, he did not look south, and that, if he had looked south, he could have seen the cars by which he was struck in time to avoid the injury. Held, that the question of plaintiff's contributory negligence was properly submitted to the jury.

Appeal from St. Louis circuit court; JACOB KLEIN, Judge.

Action by John M. Jennings against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for personal injuries, caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by MACFARLANE, J.:

This is an action for damages on account of personal injuries received by plaintiff by reason of the negligence of defendant, as it is alleged. Defendant operates a railroad, which runs into the city of St. Louis. Its double main tracks run along Main street, north and south, near the river. It maintains and operates in its business about 30 side tracks, parallel to these main tracks, 7 of which are on the west side of the 2 main tracks, and the rest on the east side. Lesperance street extends east and west across these tracks, which were known as the "Lesperance Street Yards." This was an improved street, and much traveled. The blocks of ground lying east of this yard and between it and the river and adjacent to Lesperance street were used by defendant as a depot for lumber. Defendant was charged with negligence in failing to observe certain ordinances of the city of St. Louis regulating the movement of trains therein. These ordinances required defendant to maintain a gate on both sides of its tracks on Lesperance street; to place a watchman at said street, to keep persons off the track when trains were passing, and to display at the crossing in the daytime a red flag; to constantly sound the bell of the engine when moving any car or locomotive propelled by steam; to station a man on the top of the car at the end of the train furthest from the engine to give danger signals, and, when moving a freight train, to have it well manned with experienced brakemen, at their posts, who shall be stationed so as to see the danger signals, and hear the signals from the engine. The answer was a general denial and a plea of contributory negligence. On the trial these ordinances were read without objection, and the evidence offered by plaintiff showed without contradiction that Berthold & Jennings were lumber dealers in St. Louis, and plaintiff was, and for many years had been, in their employ as a buyer and seller of lumber. His business called him daily, sometimes several times a day, over this street, through the yard, to this lumber depot. On the morning of his injury — May 12, 1885 — he had been to this depot, and between 9 and 10 o'clock started west on Lesperance street. When he reached a point about the east side of Main street he stopped to speak to some friends he met there. He was then about 20 feet east of the main track of the road. Looking north, he saw the express train coming south. He then walked west across Main street. A train of stationary cars was on the first side track west of the main track on the south side of Lesperance street, and extending partly into the street. Plaintiff, before passing these cars, looked west along the street he was traveling, and saw it was open. He could not see south on the second side track on account of the cars standing on the first. He looked in that direction, however, saw no one on top of any cars, and heard no engine bell ringing, though he saw the smoke from an engine. He crossed over the first track upon which the cars were standing, and, while looking north at the approaching train on the main track, stepped upon the next side track without again looking south, and was immediately struck, knocked down, and run over by some freight cars, five in number, which had been "kicked" by an engine from a point from 300 to 400 feet south of Lesperance street. Plaintiff could have seen these cars if he had looked before stepping onto the...