Loeffler v. Missouri Pacific Railway Co.

• Citation: 9 S.W. 580,96 Mo. 267
• Parties: Loeffler v. The Missouri Pacific Railway Company, Appellant
• Decision Date: 12 November 1888
• Court: United States State Supreme Court of Missouri

9 S.W. 580

96 Mo. 267

Loeffler v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

November 12, 1888

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Reversed.

S. M Breckinridge and M. F. Watts for appellant.

(1) There is a fatal variance between the allegations of the petition and the proof. Waldhier v. Railroad, 71 Mo 514; Schneider v. Railroad, 75 Mo. 295. (2) The demurrer to the evidence should have been sustained. The court erred in refusing to give the instruction asked at the close of plaintiff's case, to the effect that on the evidence under the pleadings plaintiff could not recover. Isabel v. Railroad, 60 Mo. 482; Renfro v. Railroad, 86 Mo. 302; Scoville v. Railroad, 81 Mo. 434; Taylor v. Railroad, 86 Mo. 457; Kelley v. Railroad, 11 Mo.App. 1; Houston v. Railroad, 59 Texas, 373; Hoover v. Railroad, 71 Texas, 503; 1 Thomp. on Neg. 429; Railroad v. Hummel, 44 Pa. 575; Mulherrin v. Railroad, 81 Pa. 366; Railroad v. Depew, 40 Ohio 121; Hallihan v. Railroad, 71 Mo. 113; Rains v. Railroad, 71 Mo. 164. (3) The court erred in giving the second instruction for plaintiff. Yarnell v. Railroad, 75 Mo. 575; Goodwin v. Railroad, 75 Mo. 73. (4) The eighth, ninth and eleventh instructions asked by defendant should have been given. (5) Defendant is entitled to judgment non obstante veredicto.

A. R. Taylor and W. F. Broadhead for respondent.

Black J. Ray, J., absent.

OPINION

Black, J.

The plaintiff received the injuries on account of which he recovered a judgment for four thousand dollars, whilst in the tunnel leading from the Union Depot, in St. Louis, to the bridge. The tunnel railroad consists of two tracks, separated by a wall of masonry eight or ten feet thick and from which wall the arches are constructed. There are open passage-ways through the wall every thirty or forty feet. At a point six or eight blocks from the east entrance, there is no division wall for a distance of forty feet, and here the roof is supported by girders, and in the upper part of this open space is located a fan which exhausts the smoke from the tunnel. The defendant operated the tunnel road at the time in question, and had the plaintiff and others engaged in putting in a sewer under one of the tracks. This work was carried on at night only, and when the tunnel was closed to the passage of trains.

About half-past eight o'clock in the evening, the plaintiff and three other laborers entered the tunnel at the east entrance, one of them carrying a lantern, and the others following in single file. On the way to the place where they were to commence work, they passed one train by stepping into one of the passage-ways in the wall. When they reached the open space under the fan a train passed them on the north track, and just as it passed another one came up on the south track going in the opposite direction. The plaintiff, it would seem, did not hear or see this last train, and stood so near the track that the baggage-car struck him and inflicted the injuries of which he complains.

The instructions given at the request of the plaintiff permit a recovery if the jury should find that the bell on the engine was not rung, that the failure to ring the bell was negligence on the part of the defendant and the direct cause of the injury. By the special issue submitted under the act of 1885, the jury found (1) that the servants in charge of the engine did not, and, by the exercise of ordinary care, could not have known that plaintiff was in a dangerous place in time to have seen him before he was struck by the car; (2) that plaintiff voluntarily entered the tunnel when trains were running through it and when he knew the tunnel had not been turned over to the trackmen.

The cause of action is not based...