Johnson v. Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 30 April 1883
• Citation: 77 Mo. 546
• Parties: JOHNSON v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

77 Mo. 546

JOHNSON

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

Shanklin, Low & McDougal for appellant.

Ramey & Brown and Bennett Pike for respondent.

NORTON, J.

This suit was instituted by plaintiff to recover damages for injuries to his person and property occurring at the crossing of a public highway, and alleged to have been occasioned by the negligence of defendant in failing to ring its bell or sound its whistle as required by section 806, Revised Statutes 1879, whereby the locomotive engine struck and killed one mule in a team and wagon being driven by plaintiff, and inflicting upon plaintiff injuries in his spine, back and bowels, rendering him a cripple for life. Judgment for the sum of $5,150 as damages is prayed for. The answer of defendant, after admitting that it was a corporation, is a general denial. Upon the trial of the cause plaintiff had judgment for $2,650, from which defendant has appealed, and assigns for error the action of the court in giving and refusing instructions.

The instructions given on behalf of plaintiff, are as follows:

1. That if the jury find from the evidence that plaintiff sustained injury to his mule and wagon, and to his person, by reason of the carelessness, negligence or mismanagement of the agents or employes of defendant while running or managing an engine and train of cars attached, at the crossing of the public traveled road mentioned in the petition, at or about the time alleged, the jury will find for the plaintiff, and assess his damages at such sum as they may find from the evidence he has sustained by the injury complained of, not to exceed the amount stated in the petition, provided the jury may further find from the evidence that plaintiff was guilty of no negligence directly contributing to such injury.

4. If the jury find for the plaintiff as to the injury to his person, they should, in estimating the amount of damages, take into consideration the age and situation of the plaintiff, his bodily suffering and mental anguish resulting from the injury received; the loss of time and injury to his health, if any, and whether the said injuries are temporary or permanent in their character.

Defendant asked the following instructions:

1. The court instructs the jury to find for the defendant.

2. The jury are instructed that it was the duty of plaintiff, when approaching the crossing at which he was injured, to stop and look and listen for an approaching train, and if he did not stop and look and listen in time to prevent the collision, the jury must find for defendant.

3. If the jury believe from the evidence that when plaintiff came in view of the railroad track he was looking away from the track, and that he did not look at the track until his attention was attracted to the train by the action of his team, and too late to prevent the accident, the finding must be for the defendant.

4. If the plaintiff's view of the railroad track in the direction from which the train was approaching was obstructed, and the wind rendered it more than ordinarily difficult to hear the train, the plaintiff was bound to use greater care than would have been required if the view had been unobstructed and the wind favorable for hearing the train, and should, if necessary, have gotten down from his wagon and gone in advance of his team until he could see that the track was clear before going upon the track, and not to observe such precaution was negligence, and will prevent his recovery in this case.

The court refused all the foregoing instructions so asked by defendant, to which action of the court the defendant excepted.

The court then modified instructions numbered two and four, asked by defendant, so as to read as follows:

2. That it was the duty of plaintiff, when approaching the crossing at which he was injured, to look and listen for an approaching train, and if he did not look and listen in time to prevent the collision, the jury must find for the defendant.

4. If the plaintiff's view of the railroad track in the direction from which the train was approaching was obstructed, and the wind rendered it more than ordinarily difficult to hear the train, the plaintiff was bound to use greater care than would have been required if the view had been unobstructed and the wind favorable for hearing the train, and should, if necessary, have gotten down from his wagon and gone in advance of his team until he could see that the track was clear before going upon the track, and not to observe such precaution as under all the circumstances in the case was necessary and proper, was negligence, and will prevent his recovery in this case.

1. RAILROADS: negligence

It is insisted that the first instruction asked by defendant, which is in the nature of a demurrer to the evidence, should have been given. Without encumbering the record with a detailed statement of the evidence, it may, after a thorough examination of it, be summarized as follows, viz: At the crossing where the injuries complained of occurred, the railroad track ran east and west, and the public road north and south. South of the crossing, at a distance of about seventy-six steps, a deep ravine crosses the public road from which the railroad track can be seen two or three hundred yards east of the crossing; the train which did the injury was traveling from east to west. Immediately north of said ravine the public road enters a cut in the bank of the ravine so deep as to prevent a train on the railroad east of the crossing, from being seen until the road emerges from said cut, which it does from twenty to forty feet south of the crossing, when the railroad track east again becomes visible to a person sitting in a wagon for thirty or forty feet. About eleven o'clock on the day of the accident, plaintiff was south of the crossing, driving north on the public road, with a farm wagon and a pair of mules. He...