Kelley v. Union Ry. & Transit Co.

• Decision Date: 02 June 1885
• Citation: 18 Mo.App. 151
• Court: Missouri Court of Appeals
• Parties: JAMES KELLEY, Respondent, v. UNION RAILWAY & TRANSIT COMPANY, Appellant.

18 Mo.App. 151

JAMES KELLEY, Respondent,

v.UNION RAILWAY & TRANSIT COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 2, 1885.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

S. M. BRECKINRIDGE and M. F. WATTS, for theappellant: The plaintiff's knowledge of the approach of the train and his failure to get out of its way will prevent his recovery, although the defendant failed to ring the bell and to have a watchman on the lookout. Drain v. R. R., 10 Mo. App. 531; O'Donnel v. R. R., 7 Mo. App. 190; Henze v. R. R., 71 Mo. 636; Fletcher v. R. R., 64 Mo. 484; Harlan v. R. R., 65 Mo. 22; Zimmerman v. R. R., 71 Mo. 476; Hallihan v. R. R., 71 Mo. 113; Rains v. R. R., 71 Mo. 164; Nelson v. R. R., 68 Mo. 593; Nolan v. Shickle, 69 Mo. 336; Maher v. R. R., 64 Mo. 267; Moody v. R. R., 68 Mo. 470, 474.

A. R. TAYLOR, for the respondent: The plaintiff, Kelley, whilst at work putting down the rail to make connection with the defendant's track, was not a trespasser. Constitution of Missouri, article 12, sect. 18; Kelly v. R. R., 11 Mo. App. 3. The instructions given by the court laid down the law precisely, following the decisions of this court and of the supreme court of Missouri. Kelley v. R. R., 75 Mo. 140; Eckert v. R. R., 13 Mo. App. 359; Merz v. R. R., 14 Mo. App. 465.

THOMPSON, J., delivered the opinion of the court.

This is the same case which was before us on a former appeal, and is reported in 11 Missouri Appeals 1. It is not necessary to re-state the facts of the case at length, because on the trial from which this appeal is taken they were substantially the same as on that trial, with exceptions which will be noted. The plaintiff had a verdict and judgment for $2000.00.

I. The first question is, whether there was a case to go to the jury. It is manifest from the testimony of the plaintiff as given in full in the present bill of exceptions, that, since the former trial, he had become very well educated in the law of his case, and that his testimony was given with the purpose of making out a certain hypothetical state of facts which, according to his former testimony, did not exist. The substantial difference between what he then swore to and what he now swears to, is: 1. He then swore that he knew that this particular train was moving; he now swears that he did not know it. 2. He then swore that trains were passing and repassing continually upon the track where he was working. He now denies this, and endeavors to make it appear that they were not passing frequently. Plainly speaking, his testimony, when compared with that given at the former trial, seems to be contradictory, shuffling, and evasive; though it is possibly consistent with good faith on the part of the plaintiff. In both trials the testimony appears to have been reported by a stenographer, and we see no reason to doubt the substantial accuracy of both reports. But this is a matter which goes to the credibility of his testimony, and which was, therefore, a question for the jury. Although his statement on the present trial that he did not know that the particular train, by which he was hurt, was coming out of the tunnel, until he looked around at it at the very moment when he was struck by it, is directly contradicted by his testimony at the former trial, which was put in evidence at this trial, it was for the jury to say whether or not they would believe his present statement, and regard his former testimony as the result of a mistake on his part in giving it, or on the part of the stenographer who took it down. He was not conclusively estopped from recovering on this trial by his testimony on the former trial.

Taking, then, as we are entitled to do after a verdict in the plaintiff's favor, the testimony given in his behalf as true, for the purpose of inquiring whether he should have been non-suited, it shows the following state of facts: That the plaintiff, an old and experienced track repairer, was engaged toward noon of a cold winter day in screwing, by means of bolts, a fish plate to a T rail, for the purpose of making a connection between a track of the Missouri Pacific Railway company and that of the defendant company; that, for the purpose of prosecuting the work more conveniently, he took a position astride of a rail of the defendant's track, with his back toward the northeast; that the place where he was at work was between the Union depot, at Twelfth street, in St. Louis, and the mouth of the tunnel at Eighth street; that there were many tracks in the vicinity, and trains were constantly being made up in that vicinity, and cars and locomotives were frequently passing over the track where he was at work; that while he was in this stooping position a train of the defendant containing five or six cars came backing along its track out of the mouth of the tunnel from the northeast, at a lawful rate of speed, about four miles an hour, but without observing the precautions of ringing the bell of the locomotive, and of having a man posted on the car farthest from the locomotive to give danger signals, as required by an ordinance of the city; that the plaintiff, absorbed in his work, and relying upon hearing the bell or a danger signal from the man so stationed, did not hear the train as it thus approached him from behind, until the foremost car had almost reached him; that he turned and looked up, but not in time to avoid being struck by the car in the head and knocked over in such a position that one of his feet was run over by one or more wheels of the car and crushed so that his leg had to be amputated below the knee.

It appeared in evidence without dispute, that track repairers are by the rules of railway management, required to watch for approaching trains to signal to them when the track is not in a condition for them to pass, and to get out of the way of them when it is in such a condition. It was scarcely necessary to give evidence of the fact that it is the duty of a track repairer to get out of the way of an approaching train; because, as the train can not leave the track to pass around the track repairer, the latter must manifestly leave the track to let the train pass. But this does not answer the question involved. The track repairer is not a trespasser; he is lawfully upon the track; he may become absorbed in his work and not perceive the approach of the train. If the train backs up slowly upon him, ringing no bell, as required by law, and having no man on its foremost car to shout to him and admonish him of his danger when the car gets near him, as required by law, the negligence of the railway company may be the proximate cause of the injury, and his negligence the remote cause.

We are embarrassed in the decision of this case by the fact that the decisions of our supreme court upon the question involved, have not been uniform. When the case was before us on the former appeal, the latest exposition of the law upon this subject by that court was found in cases in the 71st volume of the Missouri reports. In one of these cases, the supreme court had said: “It is the settled law of this state that, although the defendant may have been guilty of negligence contributing to produce the injury complained of, still, if the plaintiff was also guilty of negligence proximately contributing thereto, he can not recover, unless the negligent acts of the defendant occasioning the injury, occurred after he became aware of the danger to which the plaintiff, by his own negligence, had exposed himself.” Rains v. The St. Louis, Iron Mountain & Southern Railway Company, 71 Mo. 164, 167. This doctrine was distinctly reaffirmed in a case in the same volume, which on its facts, was more nearly like the present case; and the qualification that, where the plaintiff had thus exposed himself by going upon a railroad track, without looking or listening for approaching trains, he could not recover damages for a hurt received by being struck by such a train, unless the jury should find that such hurt was produced by the omission of the defendant, after becoming aware of the danger to which the plaintiff was exposed, was put by the court in italics and applied in a case where, as in this case, the plaintiff's evidence tended to show that the approaching train was not in the observance of those statutory precautions enacted for the protection of persons upon railway tracks. Zimmerman v. Railway Co., 71 Mo. 476, 484. These decisions were binding upon us as the latest exposition of the law upon this subject by our supreme court, at the time when we decided this case upon the former appeal. They controlled our decision upon that appeal.

But former decisions of our supreme court and of other courts had stated a different rule as applicable to cases where a person upon a railroad track negligently fails to make proper use of his faculties by looking or listening for approaching trains, in consequence of which he receives a hurt from such a train; and that rule was, that, notwithstanding his contributory negligence, such person might recover, provided those in charge of the approaching train saw his exposed position in front of them on the track, or might, by the exercise of proper care, have seen it in time to avert the threatened calamity. In the case of Kelley v. The Hannibal, etc., R. Co. (75 Mo. 138), a case which was decided subsequently to our former decision in the present case, the supreme court returned to this rule, and they have not, so far as I can see, departed from it since. It is a humane rule, conservative of human life and consonant with public policy. It is based upon a recognition of the fact that human beings may be, and frequently are, lawfully upon railway tracks, not only at highway crossings, but at other places; that in such situations they may remain unmindful of an approaching train, and thus lose their lives, or sustain great bodily injury, if those in charge of the train do not give them some special warning of its...