Liddy v. St. Louis R.R. Co.

• Decision Date: 31 March 1867
• Parties: HANNAH LIDDY, Respondent, v. THE ST. LOUIS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

40 Mo. 506

HANNAH LIDDY, Respondent,

v.THE ST. LOUIS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

This case was tried upon the issues made by the petition and answer.

The plaintiff in her said petition, after alleging that she was the wife of Michael Liddy, and that the defendant was a corporation possessed of a street railway along Broadway and Fifth street in the city of St. Louis, averred “that it was the duty of said defendant at all times, when running their cars along said streets, to keep a vigilant watch for all vehicles and persons on foot, either on the track or moving towards it, and on the first appearance of danger to stop the cars in the shortest time and space possible, and to otherwise observe and perform all the municipal regulations and rules imposed upon said defendant by city ordinance No. 4564, entitled ‘An ordinance in relation to street passenger railways,’ approved December 27, 1859. But plaintiff says the said defendant, on or about the 31st day of December, A. D. 1864, wholly disregarding its duty in every respect and the provisions of the aforesaid city ordinance, by its agents, servants, and employees, so negligently, unskilfully and with criminal intent run and conducted one of its said cars along the aforesaid streets that the same was run over Michael Liddy, husband of plaintiff, as aforesaid, without any fault upon his part, whereby he was killed, and that his death resulted from the injuries then and there caused by the negligence, unskilfulness and criminal intent of the said defendant, its agents and servants as aforesaid, whereby and by reason of the statute in such cases made and provided defendant has forfeited and become liable to pay plaintiff the sum of five thousand dollars damages, for which she asks judgment.”

Defendant by its answer to the amended petition put in issue the material allegations of the petition--denied negligence, carelessness or criminal intent on the part of its agents and servants--and averred that if Michael Liddy received the injuries complained of, it was in consequence of his own negligence and carelessness, and not through any fault of defendant.

Albert L. Allen, for plaintiff, stated that on the evening of the 31st of December, 1864, between 7 and 7 1-2 o'clock, he was standing on the west side of Broadway, opposite Bates street, when “a car of the Fifth street railroad line was coming up defendant's track from the Arsenal, proceeding north towards Bremen; it was going at the rate of from seven to eight miles an hour, which is faster than they generally drive. It was a starlight night and the gas-lamp at Chapman & Thorpe's corner, as well as the lamp on the other side of Bates street, were lit. I could see a man a half square by that light, and a car or train at least a square or two off. * * * I saw deceased for the first time just before the horses' heads reached him; he was coming from the east to the west side of the street; I had not noticed him before that moment of time; he hallooed, ‘Oh!’ fell, and the car passed over him. * * * The car went on ten or fifteen yards after it run over him before it stopped.”

Upon cross-examination, he stated that the deceased was just at the horses when witness first observed him; that he has seen cars run on Broadway, opposite his house, eight miles an hour every day; that he has at times seen cars driven as fast, and perhaps faster, than the car in question; that he has seen carriages driven through the streets faster than this car, and that he has never found it impossible to get out of the way of a carriage or car driven as fast as this car was driven at the time of the accident. Being interrogated whether he had not, at the previous trial, said he could not tell the rate of speed at which the car was going, he answered in the affirmative, and said that he “merely guessed” that they were going at that rate, being the rate of seven to eight miles an hour.

Hubert Schilt, plaintiff's second witness, said, that he and a friend of his, on the occasion in question, were on the east side of Broadway, about 80 yards north of Bates street; that he could see a man at Bates street, and a car 400 to 500 yds. off to the south. In reference to the occurrence itself, he said: “The car was coming up very fast, going from south to north; the man, who was afterwards killed, was in the street; he was going across the street, with chickens in one hand; he was going over the street kind of crossways towards the west. My friend said: ‘If that man don't look out, he will be hurt.’ The car continued on, and the man was struck either by the tongue or the horses; he fell and the car went over him; I saw him afterwards at the police station--he was dead.”

On cross-examination, he stated: “When I first saw the deceased, he was about half way in the street between the curbstone on the east side of Broadway and the railroad track; the car was perhaps 40 or 50 yards from him, perhaps more-- I can't say; he was going diagonally across the street; I can't say how far he was south of the flat-stone crossing on Bates street. * * * He continued to walk on; I don't know whether he noticed the car or not; I don't know whether he saw it or heard it, but he did not stop; I can't say whether he stumbled and fell, or whether the horses or tongue hit him; he was run over.”

Patrick Fleming said: “I was a passenger in the car that night, and felt a jolting as if the car was going over a big rock; it went over and 10 or 15 yards beyond; the car was going at fast speed.” Quest. by plaintiff: “How many miles per hour was the car going at, at that time?” Objected to by defendant because “it does not appear that witness is competent to judge of the rate of speed of a street car, or that he has ever had charge of the running of a car or any experience in the running and management of street cars which will enable him to form or express a correct opinion as to their rate of speed when moving.” Objection overruled, to which defendant then and there duly excepted; and the question being repeated, the witness answered as follows: “The car was going at the rate of 7 or 8 miles per hour.”

Cross-examination. “I did not know Michael Liddy in his lifetime. I have never had the management of a team; I am a laborer. The lamps were lit in the car. I don't know why I recollect that the cars were going fast, but I do recollect it. I have seen cars driven as fast, and carriages faster. I thought it was a rock on the track. When the car stopped, we got out, and found the man on the track; he was afterwards taken away.”

This was plaintiff's testimony as to the occurrence; she also introduced the coroner to prove the character of the injuries received by the deceased, and two witnesses to prove her marriage and the identity of the deceased, and closed.

At the close of the plaintiff's testimony, defendant asked the following instruction, viz: 1. “Upon the evidence in this cause, the plaintiff is not entitled to recover;” which the court refused to give, to which defendant excepted.

Defendant, by three witnesses, offered evidence tending to prove that the car, on the occasion in question, was driven at a usual and moderate rate of speed not exceeding from 4 1-2-5 miles an hour; that the signal lights were up in the car; that the horses had bells on; that the car was in proper condition, the brakes in good order, the horses properly geared, the driver and conductor at their posts and attending to their duty; that the night was cloudy and foggy; that when the car got near the south crossing of Bates street, the conductor, wishing to let out a passenger, rang the bell as a signal to the driver to stop, when the latter immediately applied the brakes, but, after giving them one twitch, the horses plunged forward, carrying the car with them and over an object, which afterwards turned out to be the deceased. The driver swore that “if a man had been standing up in the street, I reckon I could have seen him when I got near Bates street. I could not have seen a man lying on the track; the night was dark, and that part of the street was not in the range of the lights. I kept a sharp watch on my horses and of the track ahead, but saw no man in the street. If he had been standing up in the street, I would have seen him. I did not notice anything until the horses jumped and jerked the car ahead.”

It also appeared that the corpse of the deceased, after the car had passed over him, was lying about midway between the crossings in the centre of the street, with his head to the south and his feet to the north.

The plaintiff thereupon prayed the following instructions, which the court gave:

1. If the jury believe from the evidence that plaintiff was at the time of the injury to and death of Michael Liddy the lawful wife of said Liddy, deceased, and that said Liddy died from an injury resulting from or occasioned by the negligence, unskilfulness or criminal intent of the defendant's agents or servants while running, conducting or managing one of their cars, and deceased used ordinary or reasonable care at the time to prevent said injury, the defendant is liable in this action, and the jury will find for the plaintiff.

2. The fault or negligence of the deceased which will preclude a recovery by the plaintiff if there was mutual negligence, is not the least degree of fault or negligence, but it must be such a degree as amounted to the want of ordinary or reasonable care on the part of the deceased at the time of the injury. By ordinary or reasonable care is meant that degree of care which may be reasonably expected of a person in deceased's situation.

3. Although deceased may have been guilty of misconduct or negligence which contributed remotely to the injury, yet if the misconduct, negligence, unskilfulness or criminal intent of the defendant, its agents or servants, was the immediate cause of the injury, and with the...