Kleiber v. People's Ry. Co.

Decision Date09 November 1891
PartiesKLEIBER v. PEOPLE'S RY. CO. et al.
CourtMissouri Supreme Court

1. At the crossing of a horse and a steam railway, the view of the latter's track was obstructed until within 15 feet of it. A horse-car was driven slowly upon the crossing, without warning from a gateman stationed at the crossing by the railroad company, until the horses were on the crossing, when, as an engine approached on a down grade, the gateman shouted to the driver of the horse-car to stop, and commenced to lower the gates guarding the crossing, but when they were half way down, shouted to him to go on, and began raising the gates; others shouted contradictory directions to him. The driver stopped, or nearly so, but before he had stopped, plaintiff, a passenger in the horse-car, in apprehension of a collision, jumped from the car, and thereby was injured. There was no real danger of a collision, nor, from the driver's stand-point, any appearance of danger. He had his horses under control, and, when directed by the gateman to go on, continued across the track. Held, that there was no negligence on the part of the driver which would render the street-car company liable for plaintiff's injuries.

2. The question of the negligence of the railway company, by its gateman, in allowing plaintiff to be placed in a position of apparent imminent peril, was properly submitted to the jury. SHERWOOD, C. J., and BRACE, J., dissenting.

3. Under the circumstances, the apprehension of peril was reasonable, and such jumping was not contributory negligence.

4. In such passenger's action for her injuries evidence was received of the acts of the passengers and of outcries by them and by-standers. Held, that this was admissible as part of the res gestœ, and as evidence that plaintiff was actuated by reasonable apprehension.

In banc. Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

Action by Anna Kleiber against the

People's Railway Company and the Missouri Pacific Railway Company for personal injuries alleged to have been received by reason of defendant's negligence. Judgment was rendered against both defendants, and both appeal. Reversed as to the People's Railway Company; affirmed as to the Missouri Pacific Railway Company.

Hitchcock, Madill & Finkelnburg, for appellant People's Ry. Co. H. S. Priest, for appellant Missouri Pacific Railway Company. Rassieur & Schnurmacher, for respondent.

MACFARLANE, J.

Plaintiff sued the defendants, the People's Railway Company and the Missouri Pacific Railway Company, jointly, for $10,000 damages on account of personal injuries alleged to have been sustained by her by reason of their negligence. In June, 1887, the date of plaintiff's injuries, the defendant street-railway company operated a horse-car line of street railroad along Fourth street, in the city of St. Louis, and defendant the Missouri Pacific Railroad Company operated a steam railroad along Poplar street, and across Fourth street. At the Poplar-Street crossing of Fourth street the steam-railway company maintained gates or barriers for the purpose of closing the way along Fourth street to prevent persons from crossing the railroad when dangerous to do so on account of passing trains. It also had a watchman in charge of these gates, whose duty it was to raise and lower them when necessary, and to give warning on the approach of a train. On the day in question plaintiff was a passenger on an open, summer car of the street railway, going south. On this car there were 46 passengers. When the car reached Poplar street, being alarmed on account of apparent danger from a collision with an engine on the railroad, plaintiff jumped from the car, and was injured. The charge in the petition against the People's Railway was that, in disregard of its duty to its passengers, its agents and servants carelessly drove the car on until it reached the railroad crossing, negligently placed the car in such close proximity to a moving locomotive that a collision seemed inevitable, and plaintiff, thus being exposed to great danger, and believing her life to be in peril, jumped therefrom in order to free herself from danger. As to the Missouri Pacific Railway Company, the charge was that it was negligent in the management of its gates and locomotive after the peril of plaintiff was discovered, "not having closed its barriers in a timely manner, began and continued to shut down said barriers upon the horses and car in which plaintiff was being carried, causing said barriers to inclose said car and horses carelessly between them and in front of said locomotive," so as to render it seemingly impossible to avoid a collision between the car and the locomotive. The answer of each defendant was a general denial and a plea of contributory negligence. Judgment was rendered by the circuit court against both defendants, and both have appealed. Each defendant asked an instruction in the nature of a demurrer to the evidence, which was refused, and the principal contention by defendants here is that the evidence was insufficient to justify the verdict, and the demurrers to the evidence should have been given.

1. It is as well settled as any other principle of the law of negligence that if one, by the negligence of another, has been placed in a situation of apparent imminent peril, he is not required, in attempting to escape therefrom, to use the judgment and discretion that is required of him when not dominated by terror of impending danger; and if, without having time to deliberate, and acting upon the instinct of self-preservation, and as a prudent person might be expected to act in the circumstances, he is injured by adopting a dangerous alternative, he may still recover from the one by whose negligence he has been impelled to act. This is true though no injury would have resulted had no attempt to escape been made. Beach, Contrib. Neg. 43, and cases cited; Whit. Smith, Neg. 392; Jones v. Boyce, 1 Starkie, 493; Stokes v. Saltonstall, 13 Pet. 181; 2 Shear. & R. Neg. § 477. These are the leading cases in England and this country, and have generally been followed, as will be seen by reference to cases cited by Beach and Smith, supra. The principle is well illustrated by numerous adjudged cases In Twomley v. Railroad Co., 69 N. Y. 160, plaintiff jumped from a moving street-car to avoid the apparent danger of a train of cars running on an intersecting railroad. She fell, and was injured, but the car passed over the railroad track without a collision. The suit was against the street-car company for negligence in crossing the railroad track in such near proximity to an approaching train. In delivering the opinion the court says: "The peril of remaining in the car was properly judged by the circumstances as they there appeared to the passengers, and not by the result. The fact that the car did pass over safely cannot reflect upon the action of plaintiff, and does not prove that she was imprudent or negligent in jumping from the car. She was compelled to act, and chose the hazard which appeared to be the least, — that is, to act upon the probabilities as they appeared to her." A traveler, to avoid impending danger from a defective street, leaped from his carriage, and was thereby injured. In a suit for damages against the town the court says: "Plaintiff not having come in actual contact with the defect in the highway, it is said that the liability has not attached to the town. But this we think is too limited a construction of the statute. The injury to be compensated for by the town is one that has been occasioned by reason of any defect or want of repair in any highway. Such injury to the person may be occasioned by reason of defect of the high way, when the traveler, being brought suddenly into imminent peril by his near approach to it, in the exercise of ordinary care and prudence, voluntarily leaps from his carriage, and suffers injury thereby. The circumstances must be such as to justify his conduct, and the defect in the highway must have been the cause of his voluntary act of throwing himself from the carriage." Lund v. Inhabitants, 11 Cush. 566. In the case of Coal Co. v. Healer, 84 Ill. 129, plaintiff sued the coal company for negligently causing the death of her husband. Defendant was operating certain coal mines, in which it had neglected to provide more than one shaft, as required by the statute. Plaintiff's husband was a laborer in the mine. A fire occurred in the shaft. Smoke was filling the mine, and a cry of "Fire!" was given. Plaintiff and the other operatives rushed to the shaft, which was the only means of escape. In the rush deceased fell through a shaft into a second mine, and was killed. The fire was extinguished, and the alarm was unnecessary. The negligence charged was the failure to provide additional shafts for the safety of the operatives. In his opinion, DICKEY, J., said: "Had there been a second mode of escape, no such cause of alarm would have existed. Men of ordinary prudence would have felt safe, and been left to exercise their caution in avoiding accidents on the way to a sure mode of escape. It has long been settled that a party having given another reasonable cause for alarm cannot complain that the person so alarmed has not exercised cool presence of mind, and thereby found protection from dangers resulting from the alarm." From these decisions the following rules essential to liability may be deduced: First, the peril of alarm must have been caused by the negligence of the one against whom indemnity is sought; second, the apprehension of peril, from the stand-point of the injured person, must have been reasonable; and, third, the appearance of danger must have been imminent, leaving no time for deliberation. On the other hand, the danger must be judged by the circumstances as they...

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