Moberly v. Kansas City, St. J. & C. B. Ry. Co.

• Decision Date: 20 May 1889
• Citation: 11 S.W. 569,98 Mo. 183
• Parties: MOBERLY v. KANSAS CITY, ST. J. & C. B. RY. CO.
• Court: Missouri Supreme Court

11 S.W. 569

98 Mo. 183

MOBERLY v. KANSAS CITY, ST. J. & C. B. RY. CO.

Supreme Court of Missouri.

May 20, 1889.

CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

1. In submitting the question of contributory negligence to the jury when there is evidence for and against that defense, it is prejudicial error to charge that the law presumes plaintiff to have exercised ordinary care, for while such presumption exists in the absence of proof to the contrary, it should not be referred to when there is such proof.

2. It is likewise error to charge that while plaintiff, before crossing defendant's track at the time of the accident, was bound to stop, look, and listen for a train, if by so doing he could have learned of its approach, he would not be guilty of negligence because he failed to select the "best possible place" to observe the train, if he used ordinary care in selecting the place where he did stop, as he might still be guilty of negligence in approaching and crossing the track after looking and listening, and his selection of the place was only one among the facts from which his care or negligence might be inferred.

Appeal from circuit court, Buchanan county; VINTON PIKE, Special Judge.

The action is for personal injuries sustained by plaintiff at the crossing of a public highway by a collision with an engine on defendant's railroad. The engine struck the wagon on which plaintiff was driving, and threw him out. The negligence charged against defendant is the omission of the statutory signals by the approaching engine, in permitting brush, saplings, etc., to remain on its right of way, obstructing the view of persons using the public road as plaintiff was doing, and in not keeping the crossing itself in the condition prescribed by law. A description of the locality of the accident appears in the report of a former appeal to the Kansas City court of appeals. As the same evidence on that subject was given at the last trial it need not be repeated. Moberly v. Railroad Co., 17 Mo. App. 518. There was testimony tending to prove all the items of negligence above noted. The evidence at the last hearing developed some particulars concerning the condition of the crossing proper, not alluded to in the report of the former appeal. Plaintiff testified that there was a difference of an inch or two between the height of the rail of the track and the plank next to it, forming part of the crossing; that when he saw the engine close upon him he tried to escape by whipping up the horses, but that the hind wheel of the wagon caught on the rail, and was dragging on it when the engine struck it. Plaintiff testified that he stopped his team, looked and listened for the train before attempting to cross; that he saw and heard nothing of its approach until his horses were on the track. Among the instructions given at the instance of the plaintiff were the following: "No. 5. The court instructs the jury that negligence in this case on the part of the plaintiff means the failure on his part, under all of the circumstances by which he was surrounded at the time of the accident, and shown in evidence, to exercise such care as an ordinarily prudent man would...