Maloy v. Wabash, St. Louis & Pacifio Ry. Co.

• Decision Date: 31 October 1884
• Citation: 84 Mo. 270
• Parties: MALOY, Appellant, v. THE WABASH, ST. LOUIS & PACIFIO RAILWAY COMPANY.
• Court: Missouri Supreme Court

84 Mo. 270

MALOY, Appellant,

v.THE WABASH, ST. LOUIS & PACIFIO RAILWAY COMPANY.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Lafayette Circuit Court.--HON. JOHN P. STROTHER, Judge.

AFFIRMED.

John E. Burden for appellant.

(1) The additional testimony offered by plaintiff should have been received. Tierny v. Spiva, 76 Mo. 279. (2) The demurrer to the plaintiff's evidence should have been overruled, and the trial court erred in taking the case from the jury. Brown v. R. R., 50 Mo. 461; Norton v. Ittner, 56 Mo. 351; Kelly v. R. R., 70 Mo. 604; Cook v. R. R., 12 Reporter 351; Tanner v. R. R., 60 Ala. 631. It is enough for plaintiff to raise a fair presumption of negligence. Probability is sufficient to go the jury. Abbott's Trial Evidence, 584, note 5. “In passing upon a demurrer to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence which a jury might, with any degree of propriety, have inferred in his favor.” Buesching v. St. Louis Gaslight Co., 73 Mo. 221; Wilson v. Board of Education, 63 Mo. 137. (3) Under the evidence in this case the defendant was liable, notwithstanding the deceased may have been wrongfully on defendant's track. Harlan v. Railroad, 65 Mo. 22; Scoville v. Railroad, 79 Mo.; Warner v. City Railroad Co., 79 Mo.; Kelly v. Railroad, 75 Mo. 138. “The negligence on the part of the plaintiff, which will preclude his recovering damages for the negligence of the defendant, must be the actual proximate cause contributing to some extent directly to the injury, and not a mere technical wrong, contributing either incidentally, or remotely, or not at all, toward the injury.” Isbell v. Railroad, 27 Conn. 393; 2 Redfield's American Railway Cases, p. 474, and note, and cases cited.

W. H. Blodgett and G. B. Burnett for respondent.

(1) The court did not err in refusing to admit the additional evidence offered by plaintiff, after the close of her case. Rucker v. Eddings, 7 Mo. 115; Brown v. Burns, 8 Mo. 26; Crow v. Marshall, 15 Mo. 499; Owen v. Reilly, 20 Mo. 603; State v. Porter, 26 Mo. 603; Johnston v. Mason, 27 Mo. 511; Dozier v. Jerman, 30 Mo. 220; Seibert v. Allen, 61 Mo. 482; Tiernay v. Spiva, 76 Mo. 279. (2) The demurrer to plaintiff's evidence was properly sustained. Maher v. Railroad, 64 Mo. 267; Zimmerman v. Railroad, 71 Mo. 476; Purl v. Railroad, 72 Mo. 168; Yarnall v. Railroad, 75 Mo. 575; Powell v. Railroad, 76 Mo. 80; 1 Thompson on Negligence, p. 450, and cases cited; Shearman and Redfield on Negligence (3d Ed.) sec. 1, p. 3, and sec. 2, p. 4; Leduke v. St. L., I. M. & S. Ry., 4 Mo. App. 455; Kennayde v. P. R. R., 45 Mo. 255; Waldhier v. H. & St. J. R. R., 71 Mo. 516; Harrison v. Mo. Pacific Ry., 74 Mo., on page 369. (3) Under the pleadings and proof the defendant was not liable. See authorities cited supra.

HENRY, C. J.

This is an action instituted in the Lafayette circuit court by plaintiff to recover $5,000 damages for the killing of her husband, John Maloy, on the sixth day of September, 1880, by a locomotive drawing a train of cars, which, it is alleged, was occasioned by the negligence, unskilfulness, and carelessness of the agents of defendant in managing, conducting, and running said locomotive and train. The answer was a general denial, except as to the incorporation of defendant and the killing of John Maloy by a train of cars, and, as to the negligence alleged, denies it, and charges negligence on the part of the deceased, which directly contributed to his death. A demurrer, of the nature of a demurrer to the evidence, was sustained, whereupon plaintiff took a non-suit with leave, and the court having overruled the motion to set it aside, the cause is here on appeal.

The evidence on the part of plaintiff tended to establish the following facts: John Maloy was killed on the sixth day of September, 1880, between eight and nine o'clock in the forenoon. He was sixty years of age. Was seen by one Peter Walt, a witness introduced by plaintiff, between eight and nine o'clock, September 6, 1880, on a trestle of the Wabash railroad which spans a creek running through Maloy's farm. He had previously seen him west of the trestle, walking at a moderate gait on the railroad track, toward the trestle. Witness lived a fourth of a mile east of the trestle, and was about that distance northeast from the trestle when he saw Maloy. West of the trestle for forty yards is a clearing, but at that distance from the trestle west, it is woodland for some distance. Witness saw Maloy when the latter first came from the woods, walking on the railroad track, and heard the rumbling of the train before it came out of the woods. When Maloy was about half way across the trestle, three whistles were sounded on the locomotive, then at the west end of the trestle. Maloy was decrepit, and hard of hearing, and his sight was defective. Witness could not say whether he fell or was knocked off the trestle. The railroad runs east and west through Maloy's farm, and he could see the trains from his house. The train generally came before nine o'clock in the forenoon, was about on time this morning, and had been running that way some time, and was known as the nine o'clock train. Witness heard the train before he saw it. When the train got out of the timber, Maloy was on the trestle. From the trestle west a mile or so, a man on the track at any point west of the trestle, within that distance, can be seen, and one thirty or forty yards west of the trestle could be seen two or three miles, by a man on the track of the road. Mrs. Walt's testimony was substantially the same as that of Peter Walt. She saw Maloy when he came out of the timber, and watched him because she thought he was in danger; she and Peter Walt recognized Maloy.

These are substantially all the material facts which plaintiff's evidence tended to prove, and, taking them as proved, they fully establish defendant's plea of contributory negligence. The railroad ran through deceased's farm within a short distance of his house. On the morning he was killed the train was on time, and had been running on that time so long that it was generally known as the nine o'clock train. It is fair to infer that he knew about what time the train passed there. His hearing and eyesight were defective, and yet, knowing all these facts, he deliberately went upon the track about the time the train was due, and sauntered along the track until he got upon the trestle, where he was killed. Two of his neighbors, a quarter of a mile further east of the train than he was, heard it coming. There is no evidence that the men on the train saw the deceased before he got upon the trestle, but only that they might have seen him, and even if they had seen him they did not see that he was in danger until they discovered him on the trestle. They had the right to suppose that neither his vision, nor his hearing was impaired, and that he would get off the track before the train reached him. There is no evidence to show that they could tell, when a mile or any considerable distance west of the trestle, its precise location, or how near the deceased was to...