Kelly v. Union Ry. & T. Co.

• Decision Date: 06 April 1888
• Citation: 95 Mo. 279,8 S.W. 420
• Parties: KELLY v. UNION RY. & T. CO.
• Court: Missouri Supreme Court

8 S.W. 420

95 Mo. 279

KELLY v. UNION RY. & T. CO.

Supreme Court of Missouri.

April 6, 1888.

1. RAILROAD COMPANIES — LIABILITY FOR NEGLIGENCE — PERSONS ON TRACK — CONTRIBUTORY NEGLIGENCE.

In an action against a railroad company for personal injuries, instructions are properly given authorizing a recovery for plaintiff, notwithstanding his contributory negligence, if defendant knew of the danger, and by the exercise of ordinary care could have averted the injury to plaintiff, or if through the carelessness of its employes it failed to discover the danger in time to avert the injury.¹

2. SAME — EVIDENCE.

In an action against a railroad company for negligently backing a train against a track-repairer, causing personal injuries, where the evidence is conflicting as to whether the bell was rung, or a man was stationed on the car furthest from the engine to give danger signals, the question is for the jury, and an instruction by defendant in the nature of a demurrer to the evidence is properly overruled.

3. SAME — CITY ORDINANCE.

In an action for injuries, by defendant's train, to plaintiff while repairing the track between the Union depot and Eighth street, in St. Louis, an ordinance of the city regulating the rate of speed of trains within its limits, and providing for the giving of danger signals, is properly admitted in evidence.

Case certified from St. Louis court of appeals; SHEPARD BARCLAY, Judge.

Action for damages for personal injuries by James Kelly against the Union Railway & Transit Company. The plaintiff, an employe of the Missouri Pacific Railway Company, was injured while making a connection between the tracks of that company and one of the tracks of defendant. He obtained a judgment for $2,000, and the cause was certified to this court.

A. R. Taylor, for appellant. S. M. Breckenridge and M. F. Watts, for respondent.

NORTON, C. J.

This cause was tried in the circuit court of the city of St. Louis, and defendant took an appeal from a judgment rendered in plaintiff's favor for $2,000 to the St. Louis court of appeals, which court rendered a majority opinion affirming the judgment. Judge ROMBAUER rendered a dissenting opinion, in which he took the grounds that the majority opinion was in conflict with a decision of this court, whereupon the cause was certified to this court, as required by section 6 of the constitutional amendment adopted in 1884. Defendant interposed an instruction in the nature of a demurrer to the evidence, which was overruled, and this action of the court is assigned for error. As stated by the court of appeals, the evidence of plaintiff shows the following state of facts: "That plaintiff, who was an experienced track-repairer, was engaged, about 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 towards the north-east; 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 when he was at work; that, while he was in a stooping position, a train of defendant, containing five or six cars, came backing along 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 precaution of ringing the bell of the locomotive, and of having a man posted on the car furthest 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 on 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." The evidence shows that plaintiff was not a trespasser on defendant's track, but was rightfully there, in the performance of a duty assigned to him as track-repairer.

The evidence as to whether the bell was rung or a man was stationed on the car furthest from the engine to give danger signals was conflicting; but it was for the jury, and is not for us, to reconcile this conflict, or to say whether the evidence preponderated one way or the other. This is especially so in passing upon the demurrer to the evidence; the rule being, in such cases, that it admits the truth of the facts in evidence, and all...