Montgomery v. Missouri Pacific Ry. Co.

• Citation: 79 S.W. 938,181 Mo. 508
• Parties: SADIE MONTGOMERY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Decision Date: 10 May 1904
• Court: Missouri Supreme Court

79 S.W. 938

181 Mo. 508

SADIE MONTGOMERY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

May 10, 1904

Appeal from Cass Circuit Court. -- Hon. W. W. Graves, Special Judge.

Affirmed.

R. T Railey for appellant.

H. A Jones and A. A. Whitsitt for respondent.

GANTT P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

This is an appeal from the judgment of the circuit court of Cass county. The action is for damages for personal injuries inflicted by the alleged negligence of defendant, its agents and servants, in backing a freight train over a buggy in which plaintiff, her sister and brother were riding, on their return home from church on the night of October 29, 1899. The injury occurred on a public crossing of Wyoming street in the city of Pleasant Hill, in Cass county, Missouri. The facts of the case are, in all material respects, the same as those which appear in the case of Bertha Montgomery v. Missouri Pacific Railway Company, decided on this day, and hence reference only need be made to that case for a statement of the facts. The instructions of the court were the same as in the Bertha Montgomery case, save that in this case the court, of its own motion, gave one numbered 4, in the words following:

"The court instructs the jury that the negligence mentioned in instruction one, in so far as negligence is mentioned therein, on the part of the defendant in this case, refers simply to such negligent acts as the defendant is charged to have been guilty of in this case. And, you are further instructed that in this case the defendant is charged with being negligent in the following manner:

"1. Defendant is charged with having backed its engine and train of cars across the Wyoming street crossing at the time of the alleged accident without giving any warning or signal before reaching said crossing.

"2. The defendant is charged with having negligently backed said train of cars and engine without having any light on said car or brakeman or other person stationed on said car or at the end of said car or cars, to warn persons at the crossing of the approach of said car or cars, and that no warning signal or notice of any kind was given of the approach of said car or train of cars as it was being backed across said crossing at Wyoming street.

"3. It is charged as an act of negligence that the defendant had been in the habit of keeping a flagman at said Wyoming street crossing for the purpose of apprising persons about to cross said crossing of danger, if any, in so doing, and that upon this occasion the customary flagman was absent from his usual and customary place of duty and failed to give any signal or warning to plaintiff or those who were there at the time.

"You are further instructed herein that if the plaintiff recover at all it must be upon some of the alleged negligent acts herein before set out and that the plaintiff can not recover herein upon any other negligent act of the defendant if from the evidence you should find that there are or were other negligent acts upon the part of the defendant, at the time."

To which defendant duly saved an exception.

I. The first assignment of error is that instruction numbered 1 for plaintiff taken and read in connection with number 4 given by the court, is vicious, because it permitted the jury to find for plaintiff if they found defendant was guilty of either one of the specific acts of negligence alleged in the petition, whether it was the proximate cause of plaintiff's injury or not, and authorized a verdict, if the train backed over the crossing without any signal or warning given by the train crew, although such act might not have been the proximate cause of plaintiff's injury, and, if given, might not have prevented the injury, and third, authorized a verdict, although the watchman was at his post with lighted lanterns, and gave the plaintiff warning, if the jury should also believe that the train was backed over the crossing without warning from the train crew; fourth, because it authorized a recovery if no signals were given, as to the approach of the train, although the jury might have been satisfied that plaintiff saw the train, and knew of its approach; and fifth, because it authorized the jury to find for plaintiff if they believed the flagman was absent, regardless of whether the plaintiff was induced to pass over the tracks of defendant, on account of his absence; and sixth, because they were authorized to find for plaintiff if the flagman was absent, although the law imposed no duty on defendant to keep a watchman at said crossing, and his absence may not have been the proximate cause of the injury to plaintiff.

Counsel for plaintiff evidently misapprehend the purpose of the court's instruction numbered 4.

Its obvious purpose was to restrict the jury to the specific allegations of negligence averred in the petition. The instruction was obviously correct and in the interest of defendant. By giving it the court forbade the jury considering any other act or acts of the defendant as grounds for recovery, save those alleged by plaintiff. Such was its plain purpose, and it is in no sense open to the many criticisms upon it which the learned counsel urges.

As...