McManamee v. Missouri Pacific Railway Company

• Citation: 37 S.W. 119,135 Mo. 440
• Parties: McManamee, Appellant, v. Missouri Pacific Railway Company
• Decision Date: 07 October 1896
• Court: United States State Supreme Court of Missouri

37 S.W. 119

135 Mo. 440

McManamee, Appellant, v. Missouri Pacific Railway Company

Supreme Court of Missouri, Second Division

October 7, 1896

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

Affirmed.

A. R Taylor for appellant.

(1) The first instruction given at the request of the defendant is fatally defective, in that it eliminated from the consideration of the jury the common law negligence alleged and proven. Any number of negligent acts preceding the injury, and contributing to it, may be pleaded, and any one proven will entitle a recovery. Hill v. Railroad, 121 Mo. 482, affirming same case, certified from St. Louis court of appeals, 49 Mo.App. 534. (2) The law is precisely the contrary to the doctrine stated in the second instruction given for defendant. Fiedler v. Railroad, 107 Mo 645; LeMay v. Railroad, 105 Mo. 361; Guenther v. Railroad, 108 Mo. 18; Chamberlain v. Railroad, 33 S.W. 441. (3) The fourth and fifth instructions given for defendant were also erroneous.

M. L. Clardy and H. G. Herbel for respondent.

(1) The first instruction given for defendant was proper. Watson v. Railroad, 133 Mo. 246; Fuchs v. Railroad, 133 Mo. 168; Waldhier v. Railroad, 71 Mo. 515; Railroad v. Eason, 35 S.W. 209; Maloy v. Railroad, 84 Mo. 275; Smith v. Railroad, 47 Mo.App. 550. (2) The criticism of defendant's second instruction is without merit. Watson v. Railroad, 133 Mo. 246. (3) The difficulty with counsel's argument is that he assumes that the whole duty of avoiding injury to plaintiff's husband rested on the defendant, whereas this court has uniformly held that an equal degree of care is by law imposed upon the traveler. Lane v. Railroad, 33 S.W. 651; Kelsay v. Railroad, 30 S.W. 339; Hayden v. Railroad, 124 Mo. 566.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

John McManamee was struck by a locomotive engine of the Missouri Pacific Railway Company near the junction of Poplar street and the levee, in the city of St. Louis, on the thirty-first day of January, 1891, and died from the injuries thus received.

This action is by his widow, Mrs. Mary A. McManamee, and is founded on the alleged negligence of the company in negligently managing and controlling its said engine and train attached thereto, and violating an ordinance forbidding the company to run its cars at a speed exceeding six miles an hour along said streets, and neglecting to cause the bell on said engine to be rung constantly while running along said streets, and failing to have a watchman at the intersection of said streets to warn persons of the approach of its trains.

The defense was a general denial, plea of contributory negligence, and that the ordinance regulating the speed to six miles an hour was void.

The evidence tended to prove that plaintiff was the wife of deceased; that deceased was killed by a train of defendant on its track on Poplar street; that the levee and Poplar street are public streets of said city.

On the day deceased was killed he went with a single horse and wagon to get some bricks lying on the levee, near the western curb thereof, and about eighty feet from where defendant's track curved from the levee west up Poplar street. While deceased was loading the bricks into his wagon the horse was not hitched in any way and started to walk away and then quickened its pace to a trot northward. The deceased immediately pursued and overtook the horse upon defendant's track on the curve. The horse on reaching the track turned west with the track into Poplar street and continued along or on the defendant's track. Deceased crossed from the south side of the track to the north side and reached the head of the horse, caught the bit or rein, and endeavored to get him off the track, when an engine attached to defendant's train and pulling about twenty-five freight cars, struck the rear end of the wagon and threw it to the south side of the track and crushed it. The horse either broke loose or was torn loose by the collision, and escaped without injury up Poplar street. Deceased was caught by the cylinder of the engine on the north side, thrown down and dragged about thirty feet by the side of the engine as it moved west, and was either dropped or pulled out by some bystanders.

The engine and train were moving at a greater speed than six miles an hour. There was ample evidence that the bell was not constantly rung as required by ordinance. There was also evidence that the engineer was warned to stop while the engine was one hundred and ninety feet from deceased, and also that the deceased, who was a man nearly sixty years old, was warned to keep off the track but that he paid no attention to it, but hurried to catch the horse, and while pulling at the horse was struck and killed. The evidence tended to show he went on the track only a few feet in advance of the approaching engine which could have been readily seen by the exercise of ordinary care.

The verdict of the jury was for the defendant and the plaintiff, after an unsuccessful motion for new trial, appealed to this court. This cause has been on file since September, 1892, but counsel have continued it from time to time until this term, and have only favored us with briefs since the last call of the docket. There can be little excuse for such delays. Appeals prosecuted in good faith should be followed with more industry.

The grounds, upon which a reversal of the judgment is sought, are alleged errors in the instructions.

The instructions are as follow: The court at the request of the plaintiff gave the following instructions to the jury:

1. "The court instructs the jury that the ordinance of the city of St. Louis, read in evidence, in relation to the speed of defendant's train and the ringing of the bell was in force at the time of the injury to John McManamee, and that defendant at said time had no legal right to run its said train, at the place of the injury, at a greater rate of speed than six miles per hour; and if defendant was at said time running its said train at a higher rate of speed than six miles per hour, and did thereby directly cause the injury and death of said McManamee; and if the jury further find that said McManamee was at the time exercising ordinary care, then defendant is liable."

2. "If the jury finds from the evidence in this case that the plaintiff was the wife of John McManamee at the time of his death; and if the jury further find from the evidence that said John McManamee was struck by defendant's engine, and so injured that he died from said injury at the city of St. Louis; and if the jury further find from the evidence that said John McManamee was caused to be so struck and injured by reason of defendant's servants in charge of said engine, at said time, causing said engine to be run at a higher rate of speed than six miles per hour (if the jury find that said engine was run at said time at a higher rate of speed than six miles per hour); and if the jury find that said John McManamee, at the time of his injury, was exercising ordinary care under the circumstances, then the jury should render a verdict for the plaintiff for five thousand dollars."

3. "Although the jury find from the evidence that John McManamee went on defendant's track to attempt to remove his horse therefrom, and that in doing so he was not exercising ordinary care; yet if the jury find further from the evidence that defendant's servants in charge of its engine and train either saw said deceased upon defendant's track or near same, and in danger of injury from defendant's engine, or by the exercise of ordinary care could so have seen said deceased upon said track and in danger of injury, and by the exercise of ordinary (care) after so seeing said deceased in such danger, could have averted injury from said deceased, and yet neglected to do so, and in consequence of which deceased was killed, then plaintiff is entitled to recover five thousand dollars."

The court, at the request of the defendant, gave the following instructions:

1. "The court instructs the jury that the plaintiff in her petition claims the right to recover upon the following grounds:

"First. That the engine which struck her deceased husband was running at a rate of speed exceeding six miles per hour.

"Second. The bell of the engine by which he was struck was not being constantly sounded.

" Third. That the defendant did not have a watchman stationed at said crossing to give warning of the approach of...