Koegel v. Missouri Pacific Ry. Co.

• Decision Date: 10 May 1904
• Citation: 80 S.W. 905,181 Mo. 379
• Parties: KOEGEL v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

80 S.W. 905

181 Mo. 379

KOEGEL v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

May 10, 1904

Appeal from Buchanan Circuit Court. -- Hon. W. K. James, Judge.

Reversed and remanded (with directions).

Martin L. Clardy and Hall & Woodson for appellant.

(1) There was no evidence that the Missouri Pacific train struck plaintiff. (2) There was no proof that the bell was not ringing on the Missouri Pacific engine. (3) The rule is that affirmative evidence of the kind given for defendant can not be and is not impaired or affected in any degree by such negative evidence as that introduced by plaintiff. Henzs v. Railroad, 71 Mo. 638; Shaw v. Railroad, 104 Mo. 657; Sanders v. Railroad, 147 Mo. 424; May v. Crawford, 150 Mo. 527; Seibert v. Railroad, 49 Barb. 586; Culhane v. Railroad, 60 N.Y. 137; Schufeldt v. Railroad, 96 Mich. 327, 55 N.W. 1014; Bond v. Railroad, 117 Mich. 652, 76 N.W. 102; Britton v. Railroad, 81 N.W. 253; Horn v Railroad, 55 Am. & Eng. R. R. Cas. 158; Still v Huidekopers, 17 Wall. 393; Railroad v. Elliott, 28 Ohio St. 346; Butcher v. Railroad, 55 Am. & Eng R. R. Cas. 185; 3 Lawson on Rights & Rem., sec. 1184; Newland v. Railroad, 55 Am. & Eng. R. R. Cas. 263; Bohan v. Railroad, 61 Wis. 391, 21 N.W. 241. (4) Plaintiff was not entitled under the pleadings to assert any right founded upon either the ordinance regulating the speed of railway trains or the one requiring the bell to be rung. State ex rel. v. Sherman, 42 Mo. 214; Ahitz v. Railroad, 17 Mo.App. 419; Mooney v. Kennett, 10 Mo. 555; 15 Ency. of Pl. & Pr., 426. (5) There was no evidence that the excessive speed of the train had anything to do with producing the accident. As said by this court in Jackson v. Railroad, 157 Mo. 645, it was necessary for plaintiff to show that his injuries were caused by the excessive rate of speed. Kelley v. Railroad, 75 Mo. 142; Bluedorn v. Railroad, 121 Mo. 269. (6) The ordinance regulating the speed of railway trains at six miles an hour was unreasonable and oppressive, and therefore void. The ordinance fixed the rate of all railway trains at all places in the city, even in the very yards of the railroad companies, at the uniform rate of six miles an hour. Jackson v. Railroad, 157 Mo. 633; Merz v. Railroad, 98 Mo. 330; Bluedorn v. Railroad, 108 Mo. 439; Prewitt v. Railroad, 134 Mo. 633. (7) Plaintiff was a trespasser in the Burlington railroad yards and defendant owed to him only the duty not to wantonly injure him. Hyde v. Railroad, 110 Mo. 272; Ostertag v. Railroad, 64 Mo. 421; Schug v. Railroad, 102 Wis. 515, 78 N.W. 1090; Tanner v. Railroad, 161 Mo. 497; Feebach v. Railroad, 167 Mo. 206; Hyde v. Railroad, 110 Mo. 272; Heiter v. Railroad, 53 Mo.App. 331; Riley v. Railroad, 68 Mo.App. 652. (8) Plaintiff was guilty of contributory negligence, which precluded his recovery. He never looked around, and never took any precautions whatever against such a train, but walked on from three to five minutes, and until he was hurt. Guenther v. Railroad, 95 Mo. 297; Maxey v. Railroad, 113 Mo. 1; Kreis v. Railroad, 131 Mo. 544; Yancey v. Railroad, 93 Mo. 433; Kreis v. Railroad, 148 Mo. 321; Tanner v. Railroad, 161 Mo. 497; Harlan v. Railroad, 64 Mo. 483; Moody v. Railroad, 68 Mo. 473; Turner v. Railroad, 74 Mo. 607; Powell v. Railroad, 76 Mo. 82; Taylor v. Railroad, 86 Mo. 462; Butts v. Railroad, 98 Mo. 272; Boyd v. Railroad, 105 Mo. 371. (9) Defendant was not guilty of recklessly or wantonly injuring plaintiff. Kreis v. Railroad, 148 Mo. 329; Tanner v. Railroad, 161 Mo. 497.

Grant Watkins and Johnson, Rusk & Stringfellow for respondent.

(1) Appellant must show that he was prejudiced by the action of the court in granting a new trial, for the matter rests peculiarly within its discretion. Taliafaro v. Evans, 160 Mo. 380. Must show as a matter of law, that the trial court erred in granting a new trial for the reason given by the court in so doing. Chouquette v. Railroad, 152 Mo. 257; Lee v. Pub. Co., 137 Mo. 385; Folding Bed Co. v. Railroad, 148 Mo. 478; Van Lien v. Barret & Barret Beverage Co., 144 Mo. 509. (2) The record shows that many people passed up and down the tracks every day. This negatived the presumption of a clear track and required a lookout by those managing the train. Morgan v. Railroad, 159 Mo. 283. Even though the plaintiff was negligent, the plaintiff had a right to go to the jury on the hypothesis that the servants of defendant were negligent in failing to use the means at hand to avert the calamity after, by the exercise of ordinary care, they could have discovered the peril. Fielder v. Railroad, 107 Mo. 645; LeMay v. Railroad, 105 Mo. 361; Frick v. Railroad, 75 Mo. 602; Guenther v. Railroad, 108 Mo. 18; Chamberlain v. Railroad, 133 Mo. 603; Kelly v. Railroad, 95 Mo. 279; Lynch v. Railroad, 111 Mo. 608. (3) There was no evidence of negligence on the part of plaintiff, certainly no conclusive evidence of negligence, such as the court could declare as a matter of law. A party can not be convicted of negligence for not anticipating the negligence of another. Plaintiff had a right to rely on defendant's obeying the ordinance. Petty v. Railroad, 96 Mo. 290; Crumpley v. Railroad, 111 Mo. 152; Jennings v. Railroad, 112 Mo. 268; Sullivan v. Railroad, 117 Mo. 214; Gratiot v. Railroad, 116 Mo. 450; Brannock v. Elmore, 114 Mo. 55. (4) Running a railway train within the city at a rate of speed in excess of that prescribed by ordinance is negligence per se. Gratiot v. Railroad, 116 Mo. 463; Hutchinson v. Railroad, 161 Mo. 253; Prewitt v. Railroad, 134 Mo. 615; Hanlon v. Railroad, 104 Mo. 381; Bluedorn v. Railroad, 108 Mo. 439; Murray v. Railroad, 101 Mo. 23; Kellny v. Railroad, 101 Mo. 68; Edwards v. Railroad, 67 S.W. 950. (5) The plaintiff had a right to assume when he stepped aside and looked back and saw that there was no train in sight, that he was in perfect safety and that defendant would obey the ordinance, he thereby having ample time to walk to the crossing. The case should have been submitted to the jury on this hypothesis. Hutchison v. Railroad, 161 Mo. 254; Gratiot v. Railroad, 116 Mo. 461; Sullivan v. Railroad, 117 Mo. 222; Estwin v. Railroad, 96 Mo. 295; Kellny v. Railroad, 101 Mo. 77; Jennings v. Railroad, 112 Mo. 276. (6) Where the facts are such that reasonable minds might differ, it is a question for the jury, and should be submitted to them. Huhn v. Railroad, 92 Mo. 450; Gratiot v. Railroad, 116 Mo. 451. (7) Defendant was bound by the ordinances, as they were properly pleaded, and upon the objections of the defendant, an amendment was made to the petition and the case was tried on the theory of the amended petition. The same is true of the amendments made by the defendant in the case and inserted in the answer in the record.

OPINION

GANTT, P. J.

This is an appeal from an order of the circuit court of Buchanan county granting the plaintiff a new trial.

The action is one for damages for personal injuries alleged to have been caused to plaintiff by the negligence of defendant.

The cause was tried at the February term, 1901. A jury was impaneled, and at the close of all the evidence the circuit court gave a peremptory instruction directing the jury to find for the defendant. Whereupon plaintiff took a nonsuit with leave to move to set the same aside, and thereafter filed his motion for a new trial, which the court sustained on the ground that it erred in giving said instruction, and from its order in granting a new trial defendant appealed to this court.

The propriety of sustaining the demurrer to the evidence is the sole question for solution at this time. The petition in substance is as follows:

"Comes now the plaintiff and for cause of action states that the defendant is a corporation, organized and existing under and by virtue of the laws of the State of Missouri, and as such corporation owns and operates railway tracks running to and from the city of St. Joseph, and that among other tracks, the defendant has a track which runs from St Joseph to South St. Joseph and to Atchison and Kansas City. That said defendant operates said railroad and has daily passenger trains which run over said roadbed on schedule time. That said railroad track from the St. Joseph union station to South St. Joseph is within the city limits of the city of St. Joseph, Buchanan county, Missouri, and is subject to all of the city ordinances which are in force and which are passed by the city council of the city of St. Joseph, Buchanan county, Missouri. That, to-wit, on the twenty-second day of November, 1900, plaintiff was walking from South St. Joseph to St. Joseph along the track owned and operated by said defendant railway, and very near the edge of said track. That the place where plaintiff was walking was a place which pedestrians were accustomed to use in going to and from St. Joseph to South St. Joseph to their work, and by common consent, was used as a walk for workmen to go to and from their work from the main portion of the city of St. Joseph to the stock yards at South St. Joseph, Missouri. That on the above mentioned date, the plaintiff, while walking along the track of the Missouri Pacific Railway Company, and close to the edge thereof, and at a point where -- street intersects the railway, and also where the southern end of the switch yards of the Burlington Railway Company intersects -- that while walking north along said track in a place of danger as herein stated, and so close to said track that a train passing over said track would strike plaintiff, said defendant, its agents and servants, while running its said passenger train, which was drawn by engine numbered 210, at about ten o'clock in the morning, and while running their said train from South St. Joseph to St. Joseph and over...