Jennings v. The St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 15 November 1892
• Citation: 20 S.W. 490,112 Mo. 268
• Parties: Jennings v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

20 S.W. 490

112 Mo. 268

Jennings v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri, Second Division

November 15, 1892

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

H. S Priest and H. G. Herbel for appellant.

(1) The court erred in overruling defendant's demurrer to plaintiff's evidence. Tucker v. Railroad, 26 N.E. 916; Tierney v. Railroad, 51 N.W. 176; Clark v. Railroad, 50 N.W. 365; Rogstadt v Railroad, 31 Minn. 208; S. C., 15 Am. & Eng. R. R. Cases, 648; Scott v. Railroad, 29 N.E. 289; Carson v. Railroad, 23 A. 369; Warner v. Railroad, 21 A. 737; Blight v. Railroad, 21 A. 995; Purl v. Railroad, 72 Mo. 171; Harlan v. Railroad, 64 Mo. 480; Butts v. Railroad, 98 Mo. 276; Boyd v. Railroad, 105 Mo. 371; Yancey v. Railroad, 93 Mo. 433; Bell v. Railroad, 86 Mo. 612. (2) The court erred in giving instruction number 1 at plaintiff's instance. State v. De Bar, 58 Mo. 397; State v. Clark, 54 Mo. 34; State v. Binder, 38 Mo. 453; State v. Green, 87 Mo. 583; State v. McDonald, 38 Mo. 529; Rine v. Railroad, 88 Mo. 398; Harris v. Railroad, 40 Mo.App. 264; Duncan v. Railroad, 46 Mo.App. 204; Yancey v. Railroad, 93 Mo. 433; Rafferty v. Railroad, 91 Mo. 37. (3) The court erred in giving instruction number 2 of its own motion. O'Leary v. Rowan, 31 Mo. 119; Barrett v. Tel. Co., 42 Mo.App. 549; State to use v. Blackman, 51 Mo. 319; Railroad v. Hurley, 12 S.W. 226. (4) The court erred in refusing instructions numbers 4 and 5 asked by defendant. (5) The court erred in modifying defendant's refused instruction number 5, and giving it to the jury, as modified of its own motion. Worthington v. Railroad, 23 A. 593; Barr v. Kansas City, 16 S.W. 485; Wilmott v. Railroad, 16 S.W. 502; Zimmerman v. Railroad, 76 Mo. 490; Carson v. Railroad, 23 A. 369. (6) The court erred in overruling defendant's motion for a new trial because the verdict is against the evidence and contrary to the instructions of the court. Tierney v. Railroad, 51 N.W. 177; Boyd v. Railroad, 105 Mo. 381; Rogstadt v. Railroad, supra; Taylor v. Railroad, 86 Mo. 463.

Kehr & Tittman for respondent.

(1) Running the train in violation of the ordinances was negligence per se. Karle v. Railroad, 55 Mo. 476; Norton v. Ittner, 56 Mo. 351; Maher v. Railroad, 64 Mo. 267; Bowman v. Railroad 85 Mo. 533; Bergman v. Railroad, 88 Mo. 682; Keim v. Ry. & Trans. Co., 90 Mo. 314; Eswin v. Railroad, 96 Mo. 290; Schlereth v. Railroad, 96 Mo. 509; Grube v. Railroad, 98 Mo. 336; Kellny v. Railroad, 101 Mo. 67; Murray v. Railroad, 101 Mo. 236; Dahlstrom v. Railroad, 108 Mo. 525. The ordinances in question have frequently been passed upon by this court, and have always been upheld. Bergman v. Railroad, 88 Mo. 678; Merz v. Railroad, 88 Mo. 672; Donahue v. Railroad, 91 Mo. 357; Dunkman v. Railroad, 95 Mo. 232; Kelley v. Railroad, 95 Mo. 279; Dickson v. Railroad, 104 Mo. 491; Bluedorn v. Railroad, 108 Mo. 439; Dahlstrom v. Railroad, 108 Mo. 525; Fath v. Railroad, 105 Mo. 537. (2) A railroad company, operating dangerous machinery on and along the public streets of the city, must know, and in law is bound to know, that men, women and children have an equal right to the use of the highway and will be upon it. It is the duty of their servants to be on the lookout, and to take all reasonable measures to avoid injury to persons on the streets. Winter v. Railroad, 99 Mo. 509; Williams v. Railroad, 96 Mo. 281; Guenther v. Railroad, 95 Mo. 286; Hilz v. Railroad, 101 Mo. 36; Murray v. Railroad, 101 Mo. 236; Gurley v. Railroad, 104 Mo. 211; Hicks v. Railroad, 64 Mo. 430; Kelly v. Railroad, 75 Mo. 138; Frick v. Railroad, 75 Mo. 595; Donahue v. Railroad, 83 Mo. 555. (3) Appellant complains that its demurrer to the evidence at the close of the plaintiff's case was overruled. First. By going on with the case and putting in its own evidence, it waived its demurrer. Bowen v. Railroad, 95 Mo. 268; Guenther v. Railroad, 95 Mo. 286; Eswin v. Railroad, 96 Mo. 290; Hilz v. Railroad, 101 Mo. 36. Second. The former decision in this case establishes that the demurrer was properly overruled. Jennings v. Railroad, 99 Mo. 394. (4) There is no contributory negligence in the case. First. Plaintiff was upon an improved public street of the city, where he had a right to be, and where it was the defendant's duty to keep watch to avoid injury to him. Bluedorn v. Railroad, 108 Mo. 439, and cases cited under last proposition of point 1. Second. Plaintiff had a right to presume that the railroad company would obey the ordinances, and if it intended to back the train over a public street would observe the precautions provided for his safety. Johnson v. Railroad, 77 Mo. 546; Petty v. Railroad, 88 Mo. 306; Beach on Contributory Negligence [2 Ed.] secs. 67, 451; Eswin v. Railroad, 96 Mo. 290; Kellny v. Railroad, 101 Mo. 67. Third. There was no contributory negligence on the part of the plaintiff. Before crossing he looked up and down the tracks and looked up Lesperance street and found it clear. The long train of stationary cars on track 1 west concealed from view what was going on west of it, and there was no gate barrier, watchman or warning of any kind to indicate a moving train or the purpose to move one west of the stationary train. Plaintiff exercised the full measure of care incumbent upon him under the circumstances. Petty v. Railroad, 88 Mo. 306; Drain v. Railroad, 36 Mo. 574; Wilkins v. Railroad, 101 Mo. 93; Kenny v. Railroad, 105 Mo. 286; Dickson v. Railroad, 104 Mo. 491. Fourth. If any portion of the testimony can be construed to indicate contributory negligence the existence of such negligence is a question of fact. The issue was put to the jury very pointedly in the instructions given at the instance of defendant (instructions 3 and 6) and was found for the plaintiff. The jury, therefore, found that there was no contributory negligence. Dickson v. Railroad, 104 Mo. 491; Kenny v. Railroad, 105 Mo. 286; Barr v. City of Kansas, 105 Mo. 550; Brown v. Railroad, 99 Mo. 310.

OPINION

Macfarlane, J.

This 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 track runs along Main street north and south near the river. It maintains and operates, in its business, about thirty sidetracks, parallel to these main tracks, seven of which are on the west side of the two 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 of 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 track 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 nine and ten 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 twenty 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 sidetrack 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 sidetrack 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 sidetrack 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 three hundred to four hundred feet south of Lesperance street. Plaintiff could have seen these cars if he had looked before stepping onto the track. He was familiar with the yards and the manner of switching trains and cars thereon. No brakeman was on top of these cars when they were "kicked," but one immediately climbed upon them, upon seeing plaintiff's danger, and attempted to stop them but he did not succeed in doing...