Lang v. The Missouri Pacific Railway Company
| Decision Date | 08 January 1906 |
| Citation | 91 S.W. 1012,115 Mo.App. 489 |
| Parties | GEORGE LANG, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
December 4, 1905;
Appeal from Cooper Circuit Court.--Hon James E. Hazell, Judge.
AFFIRMED.
Judgment affirmed.
Martin L. Clardy and John Cashman for appellant.
(1) The petition charges that, "by the force of the collision of said car with his said wagon, plaintiff was thrown several feet in the air, and fell with great force and violence," etc. The proof was that he had reasonable cause to apprehend a collision and that the danger thereof was, and that he believed it was, imminent and impending, and to save himself he jumped and was injured. This proof was a positive contradiction of the charges made in plaintiff's petition. Bond v. Railway, 110 Mo.App. 131; Chitty v. Railway, 148 Mo. 64; Hecker v Railway, 110 Mo.App. 162; Breeden v. Big Circle Mining Co., 103 Mo.App. 176; Farr v. Express Co., 100 Mo.App. 574; Garvin v. Railway 100 Mo.App. 620; Mason v. Railway, 75 Mo.App. 9; Phleger v. Weltner, 21 Mo.App. 580; Raming v Railway, 157 Mo. 477; Milling Co. v. Transit Co., 122 Mo. 258; Yarnell v. Railway, 113 Mo 570; Harty v. Railway, 95 Mo. 368; Mitchell v. Railroad, 108 Mo.App. 142. (2) The plaintiff is undertaking to count upon one cause of action and recover upon another. This can not be done, notwithstanding the other would be a good cause of action if pleaded. This is particularly true if proof of the unpleaded matter necessarily negatives the existence of the facts pleaded. Chetby v. Railway, 148 Mo. 64; Hains v. Pearson, 100 Mo.App. 551; Farr v. Express Co., 100 Mo.App. 574; Bond v. Railway, 110 Mo.App. 131; Raming v. Railway, 157 Mo. 477. (3) These physical facts would control even without his repeated admissions that he jumped, or as against any statements in his testimony to the contrary. Barrie v. Transit Co., 102 Mo.App. 87; Kreis v. Railway, 148 Mo. 330; Ferguson et al. v. Transit Co., 79 Mo.App. 360; Payne v. Railroad, 136 Mo. 562; Feary v. Railway, 162 Mo. 75; Sepetowski v. Transit Co., 102 Mo.App. 110; Breeden v. Mining Co., 103 Mo.App. 179. (4) The plaintiff was guilty of the grossest contributory negligence. According to his own testimony he never turned an eye to the south from the time he looked above the elevator and saw the engine and smoke. He then turned his oblivious gaze either straight ahead or to the north. In this way he came to the east track, never looked; got upon it, never looked; crossed it, never looked; got between it and the main track, never looked; got upon the main track and then for the first time, when the car was nearly upon him, he turned his view to the south, saw it and tried to escape. Under this evidence the court should have directed a verdict for defendant as asked. Jones v. Barnard, 63 Mo.App. 501; Hixson v. Railroad, 80 Mo. 335; Butts v. Railroad, 98 Mo. 272; Drake v. Railway, 51 Mo.App. 562; Teduke v. Railway, 4 Mo.App. 485; Hook v. Railway, 162 Mo. 569; Holwerson v. Railway, 157 Mo. 216; Tanner v. Railway, 161 Mo. 510; Peterson v. Railway, 156 Mo. 552; Maxey v. Railway, 113 Mo. 1; Guyer v. Railway, 174 Mo. 344; Harlin v. Railway, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Moody v. Railway, 68 Mo. 470; Rains v. Railway, 71 Mo. 164; Zimmerman v. Railway, 71 Mo. 476; Henze v. Railway, 71 Mo. 636; Purl v. Railway, 72 Mo. 168; Stepp v. Railway, 85 Mo. 229; Turner v. Railway, 74 Mo. 602; Kelly v. Railway, 75 Mo. 138; Hayden v. Railway, 124 Mo. 566. (5) For the purpose of determining the questions involved in this appeal it may be conceded that defendant's servants in charge of the car were negligent, still the plaintiff's negligence concurring, he can not recover. There is no comparative negligence in this State. Hogan v. Railway, 150 Mo. 55; Welch v. McAlester, 13 Mo.App. 89; Markowitz v. Railway, 186 Mo. 350; Reis v. Transit Co., 179 Mo. 1; Sepetowski v. Transit Co., 102 Mo.App. 110; Barrie v. Transit Co., 102 Mo.App. 87; Harlin v. Railway, 64 Mo. 480; Rains v. Railway, 71 Mo. 164; Hayden v. Railway, 124 Mo. 566; Kelsay v. Railway, 129 Mo. 362; Corcoran v. Railroad, 105 Mo. 399; Zumalt v. Railway, 175 Mo. 288; Watson v. Railway, 133 Mo. 251; Moore v. Railway, 176 Mo. 528. (6) As the surroundings became less favorable to look, the law demands a correspondingly increased degree of caution, and if this goes to the extent of leaving the only reasonably safe thing to do, to stop and find if the course is safe, then the traveler must stop. Hook v. Railway, 162 Mo. 569; Weller v. Railway, 120 Mo. 635; Zimmerman v. Railway, 71 Mo. 476; Henze v. Railway, 71 Mo. 636; Hayden v. Railway, 124 Mo. 566; Jones v. Barnard, 63 Mo.App. 501; Kelsay v. Railway, 129 Mo. 362. This rule obtains in other jurisdictions also. Myers v. Railway, 24 A. 747; Moreland v. Railroad, 16 A. 623; Artz v. Railroad, 56 N.W. 603; Butts v. Railway, 98 Mo. 272; Yancey v. Railway, 93 Mo. 433; Drain v. Railway, 10 Mo.App. 531.
John Cosgrove for respondent.
(1) Plaintiff's instructions were properly given. The first states the law as declared in Pinney v. Railway, 71 Mo.App. 578; O'Connor v. Railway, 94 Mo. 150. (2) Plaintiff's second instruction is as favorable, if not more favorable to defendant than the law and the evidence warrant. The defendant's act in "kicking" or "shunting" a car across a publicly traveled street, under the circumstances detailed in evidence, was unlawful and grossly negligent. Elliott v. Railway, 105 Mo.App. 523; Donohoe v. Railway, 91 Mo. 357. (3) "Wild," "loose," "kicked," and "shunted" cars are synonymous terms. It was not running on schedule and was a "wild" car. An engine not running on schedule time is said to be running "wild." 30 Am. and Eng. Ency. Law (2 Ed.), p. 524; Simpson v. Railway, 5 A.D. 615. (4) Plaintiff's third instruction correctly covers the law on that branch of the case. Hestor v. Fidelity & Casualty Co., 78 Mo.App. 505; Hartpence v. Rogers, 143 Mo. 634 l. c.. (5) Plaintiff's fourth and fifth instructions are not criticized in defendant's brief. They are sustained by authority. Trust Co. v. Hodges, 90 Mo.App. 555; Pinney v. Railway, 71 Mo.App. 578. (6) Plaintiff's sixth instruction, in substance, told the jury that the plaintiff had a right to presume that defendant would not "kick" or "shunt" its car, free from restraint, and without warning, across a publicly traveled street. Such action by defendant's servants was negligence per se. Brown v. Railway, 32 N.Y. 597 (88 Am. Dec. 353); Stevens v. Railway, 67 Mo.App. 362; Baker v. Railway, 147 Mo. 140, and cas. cit. (7) In the absence of evidence to the contrary, plaintiff will be presumed to have been in the exercise of due care. Buesching v. Gas Light Co., 73 Mo. 219; Flynn v. Railway, 78 Mo. 195; Weller v. Railway, 120 Mo. 650; Crumpley v. Railway, 111 Mo. 152; Elliott v. Railway, 105 Mo.App. 523; Meng v. Railway, 108 Mo.App. 559-561, and cas. cit; Esler v. Railway, 109 Mo.App. 580; Bond v. Railway, 110 Mo.App. 136. (8) The allegations of the petition are amply supported by the evidence. R. S. 1899, sec. 655; Leslie v. Railway, 88 Mo. 50; Real Estate Co. v. Realty Co., 159 Mo. 562; White v. Gilleland, 93 Mo.App. 310, and cas. cit.; Rumbolz v. Bennett, 86 Mo.App. 174. (9) The judgment is for the right party. No error materially affecting the merits was committed by the trial court, and the judgment should be affirmed. R. S. 1899, sec. 865; Cass County v. Bank, 157 Mo. 133; Jones v. Brownlee, 161 Mo. 258; Wagner v. Illuminating Co., 82 Mo.App. 287; Link v. Prufrock, 85 Mo.App. 618; Redman v. Adams, 165 Mo. 60.
This is an action to recover damages for personal injuries sustained by plaintiff at the crossing of a public street and defendant's railroad tracks in the city of Boonville. Plaintiff had judgment in the sum of three thousand dollars and defendant appealed.
The facts disclosed by the evidence introduced by plaintiff are as follows: Plaintiff, a farmer living six or seven miles west of Boonville, while on his way home, was driving a team attached to an ordinary farm wagon and at the time of the occurrence in question was standing near the front end of the wagonbed. His position placed him some fifteen feet distant from the end of the tongue. In driving westward on Spring street, it was necessary for him to cross three tracks of defendant's road. These tracks ran north and south and intersected the street at right angle. East of the east track and on the south side of the street was a grain elevator, and directly across on the north side of the street was another elevator. The east track ran close to both elevators and served as a loading track for them. A box car was standing on this track at the northwest corner of the south-side elevator and extended some six or eight feet into the street. The street declined from the east to the crossing. East of the elevator, there was an open space which afforded a view to one approaching from the east of the tracks extending to the south except the portion of them obscured by the elevator building. When he reached this point of view, plaintiff looked to the south and saw the smoke from an engine several hundred yards away and from his observation rightly concluded that the engine was not approaching the crossing. He continued on slowly and cautiously, looked both to the right and left, and listened for the approach of trains or cars. His wagon was almost new and made but little noise. Just before the crossing was reached, he checked his team, but did not come to a full stop. He saw and heard nothing to warn him of approaching danger and proceeded looking towards the south. The center and main track was twelve feet distant from the east track and it is asserted that plaintiff, because of the...
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