Moore v. Kansas City & Independence Rapid Transit Railway Co.

• Decision Date: 09 January 1895
• Citation: 29 S.W. 9,126 Mo. 265
• Parties: Moore v. The Kansas City & Independence Rapid Transit Railway Company, Appellant
• Court: Missouri Supreme Court

29 S.W. 9

126 Mo. 265

Moore v. The Kansas City & Independence Rapid Transit Railway Company, Appellant

Supreme Court of Missouri, Second Division

January 9, 1895

Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.

Reversed and remanded.

""Karnes Holmes & Krauthoff for appellant.

(1) Plaintiff's first instruction was wrong; cars can only move on the tracks and it is the duty of the traveler to give way to them. ""Hicks v. Railroad, 27 S.W. 542; ""Zimmerman v. Railroad, 71 Mo. 476; ""Com. v. Temple, 14 Gray, 69; Elliott on Roads and Streets, pp. 577, 578; ""Childs v. Railroad, 33 La Ann. 154; ""Chrisman v. Railroad, 150 Pa. St. 180; ""O'Neil v. Railroad, 129 N.Y. 125. (2) The court should have given defendant's instructions. ""Hagg v. Railroad, 55 N.W. 444; ""Olson v. Railroad, 81 Wis. 41; ""Hargis v. Railroad, 75 Tex. 19; ""Deville v. Railroad, 50 Cal. 383; ""Cornell v. Railroad, 82 Mich. 495; ""Philadelphia, etc., Co. v. Stinger, 78 Pa. St 219. (3) The second instruction given for plaintiff was erroneous; it was not grounded on evidence in the case and does not state the facts constituting contributory negligence. ""Yarnall v. Railroad, 75 Mo. 575; ""Gurley v. Railroad, 93 Mo. 445; ""Goodwin v. Railroad, 75 Mo. 73; ""Ravenscraft v. Railroad, 27 Mo.App. 617. (4) Plaintiff's instruction on the measure of damages did not sufficiently inform the jury as to the elements constituting such damages. ""Hawes v. Stock Yards Co., 103 Mo. 66; ""Stephens v. Railroad, 96 Mo. 207; ""Slaughter v. Railroad, 116 Mo. 269.

""Hollis & Lithgow for respondent.

(1) The court committed no error in refusing appellant's instructions 1, 2 and 3, even had the case been tried on the theory of injury by defendant and negligence of plaintiff contributing to cause it which theory was abandoned by the issue tried. ""Hurt v. Railroad, 94 Mo. 225; ""Kellny v. Railroad, 101 Mo. 67, and cases cited; ""Dunham v. Railroad, 95 Mo. 232; ""Leabo v. Goode, 67 Mo. 126. (2) The instructions numbered 4 and 9 asked by defendant and given by the court, showed the theory upon which defendant relied and tried the case on, and were very favorable to and binding on it. ""Tetherow v. Railroad, 98 Mo. 74. (3) Plaintiff's first instruction does not claim any right to the use of defendant's track or its right of way, hence the authorities cited by appellant are not in point, unless defendant's right of way covers the whole street. ""Winters v. Railroad, 99 Mo. 509; ""Eswin v. Railroad, 96 Mo. 290; ""Smith v. Railroad, 91 Mo. 152; ""Glaessner v. Ass'n, 100 Mo. 509. (4) The instruction on measure of damages complained of is warranted and not open to the objections in the cases cited by appellant. ""Sidekum v. Railroad, 93 Mo. 400; ""Furnish v. Railroad, 102 Mo. 438; ""Smith v. Railroad, 108 Mo. 243. (5) As to the failure of plaintiff to prove the value of his lost time, this would not prevent the jury from finding nominal damages for same. The evidence shows five weeks entire loss and plaintiff not able to do a full day's work at time of trial. ""Hays v. Delzell, 21 Mo.App. 679; ""McCord v. Railroad, 21 Mo.App. 92; ""Fulkerson v. Eads, 19 Mo.App. 620; ""Herman v. Bradstreet, 19 Mo.App. 227. (6) The amount of the verdict shows that nothing was considered for lost time and the damages are not excessive.

OPINION

Burgess, J.

Action for personal injuries begun in the circuit court of Jackson county. The venue was subsequently changed to the circuit court of Pettis county on application of plaintiff where, on trial to a jury, plaintiff's damages were assessed at $ 2,640. Defendant appeals.

The petition is in two counts. The first alleges that defendant was operating a line of railway from Kansas City to Independence, Missouri; "that on or about the tenth day of February, 1891, plaintiff was, with his wagon and team, traveling along and upon a street in the city of Independence along the side of defendant's railroad track; that, while he was so traveling, one of defendant's trains of cars going in a westerly direction and approaching the place where plaintiff and his team were, did negligently and unnecessarily and carelessly manage said engine and cars so as to cause plaintiff's team to take fright and shove or back his wagon close to, upon and against the track of defendant, placing plaintiff and his wagon in great peril, when then and there defendant, by its servants operating said engine and train, did carelessly and negligently run the same against the wagon of plaintiff, breaking the same and throwing the plaintiff out upon the street" and injuring him. "Plaintiff avers that the servants of defendant managing said train, saw plaintiff, or by the exercise of ordinary care and diligence could have seen him, in said perilous position in time to have avoided the injury by the exercise of reasonable care on the part of the management of said train." The second count seeks to recover damages to plaintiff's wagon and the loss of some kerosene oil therein, occasioned by the same accident which caused the injuries to his person complained of in the first count.

The answer of defendant was a general denial of the allegations of the petition; a plea of contributory negligence, "which negligence consisted in his driving a team of horses which he knew were easily frightened by the cars, on and along defendant's right of way at a time when he knew, or by the exercise of ordinary care might have known, that defendant's train was liable at any time to pass, and that he failed to drive off said street as he should have done, and that in consequence of such negligence, his team became frightened and the accident and whatever damages plaintiff sustained to his person or property were occasioned thereby." Plaintiff replied, denying the new matter set up in the answer.

In order that the facts may be better understood, reference may be had to the following map:

[SEE MAP IN ORIGINAL]

It will be observed that Clark street and Grove street run east and west; that Lexington street runs in a northeasterly direction and a little west of the center of it. Under permission from Independence, defendant's tracks are laid along said street. From Clark street to Grove street the trains of defendant go toward Kansas City, which is west of Independence.

On February 11, 1891, a train of defendant was going from Independence to Kansas City, and stopped at Clark street station. About the same time, plaintiff was driving a light spring wagon with two horses on the east side of Lexington street and of defendant's track at a point south of the alley. He was going in a northeasterly direction and the train was going southwest. As the train and plaintiff's team neared each other, the plaintiff's horses became frightened at the approach of the train.

Plaintiff's contention was that his wagon was backed on the track of the defendant and that the servants of the defendant in charge of the train saw, or by the exercise of ordinary care might have seen, his wagon on the track or being backed on the track, in time to have stopped the train, but that defendant's servants in charge of the train negligently ran the train against plaintiff's wagon, throwing him to the ground, and injuring him, breaking his wagon and spilling the oil therein.

Defendant's evidence was that its train never struck plaintiff's wagon at all; that his wagon was turned over by his horses, and defendant's engine did not even touch plaintiff's wagon.

It appeared from plaintiff's own testimony that the trains of defendant usually consisted of a dummy engine and two cars. That, a day or two before the accident, plaintiff's horses had scared at a train of cars, and that he knew it.

The courthouse square in Independence is the eastern terminus of defendant's road, and the point where the accident occurred is a short distance west of the square. The trains of defendant in going east passed the point of the accident and went to the square.

The first instruction given in behalf of plaintiff is as follows:

"1. The court instructs the jury that the railroad track of defendant where the injury, if any, occurred, was laid in a public street of Independence, Missouri; that the plaintiff had as much right to the use of said street for the purpose of travel, in the carrying on of his business, as did the defendant. It was the duty of both to so conduct themselves in the use of said street as not to injure the other in the exercise of his rights, if the same could be done by the exercise of the diligence required of prudent persons under the same or similar circumstances; and if you believe, from the evidence, that the team of plaintiff became unmanageable and began backing his wagon toward the track of defendant, and that defendant's train struck the same and caused the injury complained of; and you further find from the evidence that the servants of defendant operating said train saw plaintiff's team so from under his control, and backing himself and wagon toward the track and into peril, or, by the exercise of reasonable care, caution and prudence on their part, might have seen plaintiff in, or going into, peril, if he was in, or going into, peril, in time to have prevented the injury, if any, by the exercise of every reasonable exertion on their part in stopping or slacking the speed of the train without injury to the train or the passengers thereon, and you further find that they failed to perform this duty, then defendant was guilty of negligence, and if you further find that the injury, if any, was caused by this negligence of defendant, without fault of plaintiff, then your verdict should be for the plaintiff."

It is contended by defendant that this instruction is erroneous and misleading, and Hicks v....