Miller v. Engle

• Citation: 185 Mo. App. 558,172 S.W. 631
• Decision Date: 11 January 1915
• Docket Number: No. 11263.,11263.
• Parties: MILLER v. ENGLE et al.
• Court: Court of Appeal of Missouri (US)

172 S.W. 631

185 Mo. A. 558

MILLER v. ENGLE et al.

No. 11263.

Kansas City Court of Appeals. Missouri.

January 11, 1915.

1. RAILROADS (§ 313) — ACCIDENT AT CROSSING — VIOLATION OF ORDINANCE.

The violation of a city ordinance, requiring the continuous ringing of the bells of locomotives while within city limits, is negligence per se.

2. NEGLIGENCE (§ 56) — PROXIMATE CAUSE.

Where, in an action for injury caused by negligence, defendants were guilty of negligence, nevertheless they are not liable to the plaintiff, unless their acts, or one of them, proximately caused the injury.

3. RAILROADS (§ 350) — CROSSING ACCIDENT — PROXIMATE CAUSE — QUESTION FOR JURY.

The question whether the failure of a railroad company to ring the bell when approaching an overhead street crossing was the proximate cause of plaintiff's injury due to the frightening of her horse, by inducing her to pass under the bridge, was for the jury.

4. RAILROADS (§ 350) — ACCIDENT AT CROSSING — VIOLATION OF ORDINANCE — QUESTION FOR JURY.

A city ordinance, requiring locomotive bells to be rung continuously within city limits, relieves a plaintiff, who has been injured by her horse scaring under an overhead railroad crossing, from showing that the omission to ring the bell was negligence, but leaves to the jury whether such omission caused or joined in causing the fright of her horse and her consequent injury.

5. PLEADING (§ 7) — MATTERS OF IMPLICATION.

No objection to a pleading can be founded on the failure to allege facts which are necessarily implied from other facts specifically alleged.

6. PLEADING (§ 21) — RAILROADS (§ 344) — CROSSING ACCIDENT — PETITION — CONSISTENCY.

In an action for injuries due to the frightening of plaintiff's horse while driving under an overhead railroad crossing, allegations of the petition that the operation of the train was unlawful, in that the bell was not rung, whereby plaintiff was induced to pass under the bridge, and was in a place where her horse became scared by the noise, and that while in such position defendant unlawfully blew the whistle, which also frightened the horse, does not base the cause of action solely on the unlawful blowing of the whistle, but on the failure to ring the bell also, and the two grounds are not inconsistent.

7. NEGLIGENCE (§ 119) — PLEADING — PROOF.

Where plaintiff sets forth in the petition two contributing causes of action, for each of which defendants might be liable, she is not required to show specifically which one caused her injury.

8. RAILROADS (§ 313) — ACCIDENT AT CROSSING — VIOLATION OF ORDINANCE — NEGLIGENCE.

Where a city ordinance forbade the blowing of locomotive whistles within city limits, except in cases of immediate danger, such blowing, when circumstances did not call for it, was negligence, for which defendant railroad is liable,

if the whistling caused or joined in causing plaintiff's injury.

9. RAILROADS (§ 350) — ACCIDENT AT CROSSING — VIOLATION OF ORDINANCE — QUESTION FOR JURY.

Where there is some evidence on both sides, it is for the jury whether the circumstances justified the blowing of a locomotive's whistle, as being to avoid immediate danger.

10. RAILROADS (§ 351) — ACCIDENT AT CROSSING — RIGHT OF PLAINTIFF.

Where, in an action for injuries caused by negligence, defendants' proffered instructions ignored plaintiff's right to be informed of the approach of defendants' train, so that she could take precautions for her own safety, it was not error to refuse them.

11. RAILROADS (§ 351) — ACCIDENT AT CROSSING — EXCESSIVE SPEED OF TRAIN.

Where, in an action for injuries at a crossing caused by negligence in blowing whistle and in failing to ring bell of defendant's locomotive, the court properly refused to charge that the excessive speed of the train could not be considered for any purpose, since the speed was important in determining truth of plaintiff's testimony that she looked up the track and saw no train.

12. APPEAL AND ERROR (§ 547) — BILL OF EXCEPTIONS — NECESSITY.

In the absence of any showing thereof in the bill of exceptions, improper argument of counsel cannot be reviewed on appeal; an affidavit attached to the motion for new trial being insufficient to show the fact.

13. NEGLIGENCE (§ 117) — CONTRIBUTORY NEGLIGENCE — PLEADING.

An answer, which, after stating a general denial, avers that plaintiff's injuries were caused solely by her own negligence, and by risks and damages voluntarily assumed by her, and not on account of any carelessness or negligence on the part of defendant, is not a plea of contributory negligence, but merely a denial of plaintiff's cause of action.

14. APPEAL AND ERROR (§ 171) — ADHERENCE TO THEORY BELOW — ISSUES.

Where the case was tried below on the theory that contributory negligence was in issue, it will be so treated on appeal, though the issue was not properly raised by the pleadings.

15. TRIAL (§ 260) — INSTRUCTIONS — ABSTRACT INSTRUCTIONS.

Where defendants were granted two instructions as to contributory negligence of plaintiff, framed in terms of the concrete facts of the case, it was not error to refuse them another instruction that plaintiff could not recover if she was guilty of any contributory negligence, but not pointing out what would be contributory negligence.

16. JURY (§ 150) — SUBSTITUTION OF JUROR.

After trial had begun it was discovered that one juror was deaf. The court discharged him, and offered to call either another panel or another juror. The defendants failed to avail themselves of the choice, whereupon the court called another juror. At the close of his examination, the court inquired of counsel if the new juror was satisfactory. Counsel for defendants replied: "Yes, sir; while we accept him as a juror, we except to the action of the court." Thereupon with the new juror the trial was begun anew. Held that, since the court's offer to call a new panel had been rejected and the new juror accepted, the defendant's rights were not prejudiced.

Appeal from Circuit Court, Buchanan County; Chas. H. Mayer, Judge.

Action by Ellen Belle Miller, by next friend, against C. J. Engle and the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendants appeal. Affirmed.

John E. Dolman and O. E. Shultz, both of St. Joseph, for appellants. Otis & Stigall and W. B. Norris, all of St. Joseph, for respondent.

TRIMBLE, J.

Plaintiff, driving in a one-horse buggy, passed under an overhead railroad crossing. Just as she was emerging therefrom, a train ran over the crossing, and her horse became frightened and ran away, throwing her out and crippling her for life. She brought this suit for damages, alleging that the fright of the horse and resulting injury to her were caused by the negligence of the defendants, the engineer and the railroad in charge of and operating the train.

The crossing was inside the city limits of St. Joseph. The surroundings at the scene of the injury are well described in the petition. It charged: That plaintiff was driving east in a public highway which was an extension of Commercial street, and upon this highway was constantly a large amount of travel. That said highway "extended east from the end of the South Park car line in said city, along the north side of and closely parallel to defendant's track for the distance of one-half mile; thence sharply south, passing beneath defendant's track, which is sustained at that point by an overhead bridge; thence east again, along the south side of and closely parallel to the defendant's track, to the city limits." That in going east along the highway on the north side of the track, and when plaintiff reached the crest of a hill, about 83 steps west of the crossing, she looked east along the track and saw it was clear. That after passing the crest of the hill it was no longer possible to see east along the track, because of a clump of trees in the right of way east of the crossing and north of the track. That before passing under the track she listened to learn of a train's approach, but heard no bell nor other signal of an approaching train. That, hearing none, plaintiff turned south and passed beneath the bridge or crossing, and just as she emerged on the south side, and was about 25 feet from the bridge, and before reaching the point where the road turns east again, a west-bound passenger train reached said bridge.

The petition then charged: First, that the defendants negligently ran the train at 35 miles per hour, in violation of an ordinance of said city which prohibited the running of an engine or train within said city at a greater speed than 5 miles per hour; second, that the defendants negligently and carelessly omitted to give any warning of the train's approach to the crossing, and negligently failed to ring any bell, in violation of an ordinance of said city which provided that "the bell of each locomotive engine shall be rung continuously within said city"; third, that when said train reached said overhead bridge defendants negligently sounded the whistle "unnecessarily, repeatedly, and with unnecessary, unusual, and deafening shrillness," that defendants "unnecessarily sounded said whistle, well knowing, or when by the use of ordinary care they could have known, that said sounding of the whistle would frighten and terrify the horse which plaintiff was driving," and that defendants "saw, or by the use of ordinary care could have seen, that plaintiff's horse was being frightened by said whistle and was becoming unmanageable, but that well knowing these facts they continued said unnecessary and careless sounding of the whistle," all of which was in violation of an ordinance of said city forbidding "the blowing of steam whistles on railroad locomotives within the city limits, except in cases of immediate danger."

The petition then alleged that:

"On account of the aforesaid negligent acts the horse which she was driving became frightened and unmanageable; that it...