LaNgan v. St. Louis

• Decision Date: 19 February 1878
• Citation: 5 Mo.App. 311
• Parties: MICHAEL LANGAN, Respondent, v. ST. LOUIS, IRON MOUNTAIN, AND SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

5 Mo.App. 311

MICHAEL LANGAN, Respondent,

v.ST. LOUIS, IRON MOUNTAIN, AND SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 19, 1878.

The negligence of a railroad company's servants in not ringing the bell of the locomotive at a point at which the law requires that it be done, and at which plaintiff was injured by being run over by the locomotive, it not appearing that there was any negligence in not stopping the train before the collision, will not authorize the recovery of damages for such injury, when the proximate cause of the injury appears to be plaintiff's negligence in standing near the track, with his back to the locomotive, in such a position as to be liable to be struck by it, at a moment when he was expecting the train and knew that it was about to arrive, when, had he listened, he could have heard the whistle of the locomotive, which had sounded but a moment before, and when, had he looked, he could have seen the train for the distance of half a mile from the point of the accident.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

THOROUGHMAN & WARREN, for appellant: Plaintiff cannot recover on the ground of other negligence than that he averred.-- Buffington v. Railroad Co., 64 Mo. 246; Leduke v. Railroad Co., 4 Mo. 485. Where the proximate cause of the injury is the negligence of plaintiff, he cannot recover.-- Maher v. Railroad Co., 64 Mo. 275; Railroad Co. v. Houston, Ch. Leg. N., Jan. 7, 1878; Fletcher v. Railroad Co., 64 Mo. 484; Harlan v. Railroad Co., 64 Mo. 480; Astentag v. Railroad Co., 64 Mo. 421. An instruction which assumes a disputed fact in issue to be true is erroneous.-- Merritt v. Given, 34 Mo. 98; Turner v. Loler, 34 Mo. 461; Moffatt v. Conklin, 35 Mo. 453; Sawyer v. Railroad Co., 37 Mo. 240; Barr v. Armstrong, 56 Mo. 589; Caldwell v. Stephens, 57 Mo. 595.

MARTIN & LACKLAND, for respondent: The question of negligence is one of fact to be submitted to a jury, and an appellate court will not weigh the testimony.-- Brown v. Railroad Co., 50 Mo. 461; Hulsenkamp v. Railroad Co., 37 Mo. 540; Morrissey v. Wiggins Ferry Co., 47 Mo. 523, Boynton v. Miller, 63 Mo. 207.BAKEWELL, J., delivered the opinion of the court.

This is an action for damages. The petition alleges that the employees of defendant failed to give the proper signal of the arrival of a locomotive at a station of defendant's railway, by reason of which defendant was run over by the locomotive and lost his leg. The answer sets up contributory negligence, and pleads a release, and denies the material allegations of the petition. There was a verdict and judgment for $5,000; and defendant appeals.

It is contended by appellant that there is a total absence of any evidence to support the verdict. The testimony of plaintiff, and of eye-witnesses of the occurrence upon which the action is founded, introduced by plaintiff, is to the following effect: On Aug. 22, 1872, plaintiff was, and for some years previously had been, engaged as a workman in a rolling-mill in Carondelet, in the immediate vicinity of a station called the Docks Station, on defendant's road. From this station the road runs south, without a curve for a distance of about one-third of a mile. The bridge over the Des Peres is about half a mile below the docks, and almost immediately after crossing this bridge, a locomotive coming north can be seen from the Docks Station. The Docks Station is at the south-east corner of the railroad and Marceau Street. On the day of the accident, there was nothing whatever to obstruct the view for a full third of a mile along the track, looking south from the docks. At the station there are two platforms,--one, an elevated platform on the east side of the railroad, where the ticket-office is; and the other, lying between the two tracks of the road. This latter seems to have been merely such a collection of planks as is laid between the rails at a crossing, to facilitate the passage of wagons. It was about on a level with the tracks between which it lay, but uneven; slightly above the rails in some places, and a little below them at other points. It extended from the Marceau-Street crossing, south about eighty yards, and was about five feet wide. On the morning of Aug. 22, the date of the occurrence, plaintiff went to the Docks Station with a fellow-workman, who was about to leave on the train going north, which was due at the docks at fifteen minutes past eight o'clock. Plaintiff went to see his friend off, and to help him to carry his trunk. In order to reach the expected train, it was necessary to get over the platform between the two tracks, because the train going north was coming on the western track. The statement of plaintiff is, that, at the moment when his friend and himself started from the eastern platform to cross the track to the middle platform, a locomotive with a train of cars attached was approaching slowly from the north, along the eastern track. The two men were carrying a trunk between them, and plaintiff had his eye upon the locomotive on the eastern track, which was ringing its bell. When they reached...