Keim v. Union Railway and Transit Co.
| Decision Date | 20 December 1886 |
| Citation | 2 S.W. 427,90 Mo. 314 |
| Parties | Keim v. Union Railway and Transit Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from the St. Louis Court of Appeals.
Affirmed.
S. M Breckinridge and M. F. Watts for appellant.
(1) The demurrer to the evidence at the close of plaintiff's case should have been sustained. There was no evidence tending to connect, in any way, the death of deceased with any negligence on the part of defendant. Holman v Railroad, 62 Mo. 562; Kelley v. Railroad, 75 Mo. 142; Powell v. Railroad, 76 Mo. 83; Lenox v Railroad, 76 Mo. 86. (2) There was no evidence to support the verdict. Henry v. Railroad, 76 Mo. 282; Powell v. Railroad, 76 Mo. 83; Pleasants v. Fanta, 22 Wall. 122; Commissioners v. Clark, 94 U.S. 284; Kelley v. Railroad, 11 Mo.App. 1; Drain v. Railroad, 10 Mo.App. 531; O'Donnell v. Railroad, 7 Mo.App. 190; Thompson on Negligence, secs. 421 and 422; Wilcox v. Railroad, 39 N.Y. 358; Harty v. Railroad, 42 N.Y. 469; Wendell v. Railroad, 91 N.Y. 420; Dodge v. Railroad, 34 Iowa 276; Railroad v. McMillan, 37 Ohio 534; Railroad v. Shacklett, 105 Ill. 364; Mahlen v. Railroad, 49 Mich. 585. (3) The admission, against defendant's objection, of the testimony of Mr. Cozzens, as to statements made to him by Mr. Lenhardt, was error. (4) There was error in the first instruction given by the court of its own motion, in that it left to the jury the finding of a fact not in issue, namely, the failure of defendant to ring the bell of the engine. Railroad v. Robinson, 106 Ill. 142; Thompson's Charging the Jury, sec. 62. (5) There was error in the refusal of the court to give the fourth, seventh and thirteenth instructions asked by defendant. (6) The sixth instruction asked by the court of its own motion was erroneous. Rine v. Railroad, 3 West. Rep. 800; S. C., 88 Mo. 392.
Kehr & Tittman and G. A. Wurdemann for respondent.
(1) Running the train in violation of the ordinance was negligence per se. Defendant, therefore, was guilty of negligence, both in running the train at an unlawful rate of speed and in not sounding the bell. Karle v. Railroad, 55 Mo. 476; Maher v. Railroad, 64 Mo. 267; Bergman v. Railroad, 88 Mo. 678. (2) Defendant's track ran along Gratiot street, a public thoroughfare, used in common by the community and the railroad company. The deceased, when struck and killed, was in the street in the middle of the foot path crossing the track. Defendant was bound to know that persons might be expected there at all times, and it was its duty to exercise the highest degree of vigilance. Frick v. Railroad, 75 Mo. 595-609-611; Donahoe v. Railroad, 83 Mo. 555. (3) The deceased was no trespasser. He was on the public street where it was his lawful right to be. The law presumes that he was in the exercise of due care. 73 Mo. 233. The defendant did not even plead contributory negligence. Buesching v. Gas Light Co., 73 Mo. 219; Flynn v. Railroad, 78 Mo. 195. (4) The defendant's negligence and the injuries to the deceased being shown, it was competent to infer that the latter was occasioned by the former and the connection between the two was properly left to the jury. Railroad v. Dunn, 78 Ill. 197; Johnson v. Railroad, 20 N.Y. 65; Billings v. Breinig, 45 Mich. 65-71; Willy v. Mulledy, 78 N.Y. 310-316; Williams v. Railroad, L. R. 9 Exch. 157; Moore v. Railroad, 73 Mo. 438; Williams v. Railroad, 74 Mo. 453; Goodwin v. Railroad, 75 Mo. 76; Persinger v. Railroad, 82 Mo. 196-199; Braxton v. Railroad, 77 Mo. 458. (5) Contributory negligence is a matter of defence, and to be available to defendant should have been pleaded, which was not done. Buesching v. Gas Light Co., 73 Mo. 219; Stephens v. City of Macon, 83 Mo. 345. (6) The case was properly tried on the theory that defendant was liable if it either knew, or might, by the exercise of ordinary diligence, have known of the dangerous position of the deceased on the track in time to prevent the accident. Bergman v. Railroad, 88 Mo. 678; Kelly v. Railroad, 75 Mo. 138; Werner v. Railroad, 81 Mo. 368; Scoville v. Railroad, 81 Mo. 434; Welsh v. Railroad, 81 Mo. 466. (7) The court cannot examine what purports to be the bill of exceptions in this cause, because the same was not signed until the third term after the rendition of the judgment. Givens v. Van Studdiford, 13 Mo.App. 168. (8) Although defendant, at the close of the plaintiff's case, offered the usual instruction of non-suit, it waived the point by going on with the case, and the only permissible inquiry now is, whether there was any evidence at all to sustain the verdict. Goodger v. Finn, 10 Mo.App. 226; Bolt & Iron Company v. Buell, 8 Mo.App. 594.
Norton, J. Sherwood, J., absent, and Henry, C. J., dissents.
This is an action in which plaintiff seeks to recover damages for the alleged negligence of defendant in running its locomotive and cars over her husband, George Keim, and killing him. The answer of defendant is a general denial. On the trial plaintiff obtained judgment, which was affirmed by the St. Louis court of appeals, and the case is before us on defendant's appeal, and we are asked to reverse the judgment for alleged error of the trial court in receiving evidence and in giving and refusing instructions.
As defendant's objections to the evidence offered and received were of a general character, without stating any ground whatever on which they were based, the question as to whether it was, or not, properly received, under repeated rulings of this court, is not before us for determination. 35 Mo. 226; 33 Mo. 230; 23 Mo. 438.
It is next insisted that there is no evidence justifying the court in submitting the case to the jury and none to support their verdict. This objection necessitates a review of the evidence, which, on the part of plaintiff, tended to show that deceased was a butcher by trade, and lived with his family in St. Louis on Thomas and Cooper streets, where he had his shop, and that he also occupied a stall at Lucas Market on Twelfth and Pine streets, where he sold his meat; that he had been engaged in this business for several years, going from his home in the early morning to the market every day except Sunday; that on the twenty-eighth of September, 1878, he left his home soon after four o'clock in the morning to go to the market, and went east on Gratiot street, when, about 4:30 o'clock, he was struck and killed, on the path in Gratiot street crossing defendant's track, by a train of defendant coming west, which was running at the rate of twelve miles an hour, and, according to defendant's evidence, without its bell being rung at the time of, and immediately before, the collision took place; that several railroad tracks crossed said Gratiot street diagonally; that between and across them there were foot paths used by persons in passing along and across said street and railroad tracks; that Gratiot street was laid out as early as 1846, and had been continuously used by the public; that in 1876, the city of St. Louis, by ordinance which defendant accepted, gave it permission to extend its tracks from Tayon avenue to the western city limits, and to cross, among other streets, Gratiot street; that the said ordinance, among other things, provided that defendant should not run its trains over the tracks therein mentioned at a rate of speed exceeding six miles an hour, and that the bell on its engine should be constantly sounded while a train was moving within the city; that the lines of Gratiot street when first laid out were well marked with fences, and subsequently by buildings; that the railroad tracks were laid on the natural surface of the ground, and so remained till 1880; that before defendant laid its tracks the entire north side of the street had been lined with houses, and several buildings were also on the south side. The only persons who saw the accident were the conductor and engineer in charge of the train, which consisted of an engine, tender and seven cars, both of whom were introduced as witnesses by the defendant. The conductor testified that it occurred on a dark, gloomy foggy morning; that the headlight in the engine was burning; that he was sitting in front of the engine, with a lamp in his hand, looking ahead; that, in consequence of the fog and mist, the headlight only cast a circle of light fifteen or twenty feet ahead of it.
He further testified, among other things, as follows He further testified that when he first saw deceased he was fifteen or twenty feet ahead of the engine, "that he had no hat on, had one arm on his coat, the coat was either hanging around his neck, or one arm of it on, that he thought the man was loony or crazy, that his eyes were staring wide open, and his hair stood up on top of his head like he was frightened." In answer to the question what he said about the engineer stopping the train on his signal, he replied: "After I stepped off the engine and gave the engineer the signal, with my lamp, to hold on, that we had run over a man, he applied his air brake." He was then asked: "When you hallooed and threw up your...
To continue reading
Request your trial