McNulty v. St. Louis & S. F. R. Co.

• Decision Date: 29 April 1907
• Parties: McNULTY v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Supreme Court

101 S.W. 1082

203 Mo. 475

McNULTY v. ST. LOUIS & S. F. R. CO.

Supreme Court of Missouri.

April 29, 1907.

1. RAILROADS — ACCIDENT AT CROSSING — INSTRUCTIONS.

Since Rev. St. 1899, § 1102 [Ann. St. 1906, p. 938], providing that a railroad shall be liable for damages sustained at a crossing, when the bell on the engine shall not be rung, but it may show that the failure to ring the bell was not the cause of the injury, makes proof of an accident at a crossing and the failure to ring the bell sufficient for a prima facie case, and throws on the railroad the burden of proving that the accident was not the result of a failure to ring the bell, an instruction, in an action against a railroad for the death of a pedestrian at a crossing, based on the failure of the railroad to ring the bell, that, before plaintiff could recover, the jury must find that she proved the facts in support of her case by a preponderance of the evidence, was erroneous, warranting the granting of a new trial after verdict for the railroad.

2. APPEAL—VERDICT—CONCLUSIVENESS.

A verdict supported by evidence will not be disturbed on appeal, on the ground that a demurrer to the evidence ought to have been sustained: that going to the weight of the evidence.

Fox and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Sarah McNulty against the St. Louis & San Francisco Railroad Company. From an order granting a new trial, after verdict for defendant, it appeals. Affirmed and remanded.

The following is the opinion of Brace, P. J., in division No. 1:

"This is an action by the mother to recover damages for the death of her minor child, a daughter, aged about eight years and seven months, who on the 15th of May, 1890, was killed by one of the defendant's engines at the crossing of defendant's tracks over Theresa avenue, in the city of St. Louis. The verdict was for the defendant. Motion for a new trial was sustained, and the defendant appealed.

"The ground specified by the court upon which the motion for a new trial was sustained is thus stated by the trial judge: `One ground of negligence charged in the petition as a cause of the death of plaintiff's child was the alleged failure to sound the bell upon the engine, as required by the statute. This charge was supported by the evidence, and was submitted to the jury in plaintiff's instructions. To make out this charge, it was necessary to show that the failure to ring the bell occurred, and that it caused the child's death. In defendant's first instruction, the jury were told that the plaintiff must prove "the facts in support of her case" by a preponderance or greater weight of the evidence. This would require such proof of the alleged fact that the failure to ring the bell was the cause of the child's death. The effect of the statute (Rev. St. § 1102 [adopted in 1881]) has been to change the law in this respect, so as to make a prima facie case by proof of the failure to ring the bell, accompanied by an injury at the crossing. There need be no proof that the failure caused the injury. The law supplies that proof, and casts the burden upon the defendant to show that the failure to ring the bell was not the cause of the injury. Huckshold v. S. L., I. M. & S. Ry. Co., 90 Mo. 554, 555-558, 2 S. W. 794; Crumpley v. Han. & St. Jos. Ry. Co., 111 Mo. 152, 157, 19 S. W. 820; Lane v. Mo. Pac. Ry. Co., 132 Mo. 4, 28, 33 S. W. 645, 1128; Barr v. Han. & St. Jos. Ry. Co., 30 Mo. App. 248, 255, 256. It follows that defendant's instruction was erroneous. For this reason the motion for a new trial is sustained.'

"The...