Moore v. Wabash R. Co.
| Decision Date | 02 May 1911 |
| Citation | 137 S.W. 5,157 Mo.App. 53 |
| Parties | RAYMOND MOORE, by Next Friend, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. Samuel Davis, Special Judge.
Judgment affirmed.
J. L Minnis and Robertson & Robertson for appellant.
(1) The court erred in refusing to instruct a verdict for the defendant for the reasons: (a) the proof shows that the plaintiff was injured as the result of his own negligence in going upon the track in front of an approaching engine that he either saw or could have seen; (b) the plaintiff's proof does not show that the speed of the train was the proximate cause of the injury but on the other hand shows that notwithstanding the speed the collision would have occurred. Hayden v. Railroad, 124 Mo. 566; Railroad v. Clarkson, 147 F. 397; State v Dettmer, 134 Mo. 435; Kelsey v. Railroad, 129 Mo. 362; Payne v. Railroad, 191 Mo. 215; Phippin v. Railroad, 196 Mo. 321; Sanguinette v Railroad, 196 Mo. 466; Payne v. Railroad, 136 Mo. 580; Poster v. Railroad, 199 Mo. 82; Stotler v. Railroad, 204 Mo. 619; Weigman v. Railroad, 223 Mo. 699; Weaver v. Ry. Co., 60 Mo.App. 207; Newton v. Railroad (not reported.) (2) Plaintiff's first instruction is error; (a) it is indefinite and uncertain and does not point out to the jury the proximate cause of the injury. It should have been qualified with the following after the word "injured:" "and that if the engine had been operated at the lawful rate he would not have been struck thereby," or "and that except for such unlawful rate he would not have been injured," or by some definite language so as to direct the jury that the speed must have been such that without it the injury would not have happened. 29 Cyc. 489, note 33. And (b) because, notwithstanding the unlawful rate of speed, the plaintiff would still have had the collision. The burthen is upon the plaintiff to make proof of the particular act of negligence constituting the efficient or proximate cause of the injury. Stepp v. Railroad, 85 Mo. 229; Warner v. Railroad, 178 Mo. 125; Sapro v. Transit Co., 102 Mo.App. 250; Powell v. Ry. Co., 76 Mo. 80; Harlan v. Railroad, 65 Mo. 22; 29 Cyc. 488, 489, 490; Hudson v. Railroad, 101 Mo. 1, Same case, 123 Mo. 445; Kelley v. Railroad, 75 Mo. 138; Schmidt v. Transit Co., 140 Mo.App. 182; Campbell v. Transit Co., 121 Mo.App. 106; Moore v. Transit Co., 194 Mo. 1; Holland v. Railroad, 210 Mo. 338; Kink v. Wabash Railroad, 211 Mo. 1. (3) The court erred as to both the first and second instructions given on behalf of the plaintiff because it failed to define the term "contributory negligence" as used in both of these instructions. Magrane v. Railroad, 183 Mo. 119; Landrum v. Railroad, 132 Mo.App. 717. (4) The court erred in refusing defendant's instruction No. 16 for the reason that the proof in this case showed that the plaintiff was capable of committing contributory negligence. Graney v. Railroad, 140 Mo. 101; Payne v. Railroad, 136 Mo. 562; McGee v. Railroad, 214 Mo. 530. (5) The court erred in refusing defendant's instruction No. 11. Boyd v. Railroad, 105 Mo. 371. (6) The court erred in giving the plaintiff's instuction as to the measure of damages in that it submitted to the jury the impairment of plaintiff's capacity for earning a livelihood after his majority when there was no testimony upon which to submit such hypothesis and such question could be one only of mere speculation on the part of the jury. (7) The verdict is excessive. A verdict for $ 7000 considering the injury and the results, and taking into consideration all of the testimony, especially considering the condition of the plaintiff at the time of the trial, is grossly excessive. The bones united perfectly. He is in good health, has a good constitution and except for the impediment in his walk, he will probably be able to do as much in a year or two as he ever would have been able to do in the way of labor, etc. Evers v. Ferry Co., 127 Mo.App. 244; Flaherty v. Transit, 207 Mo. 323; Garard v. Cole and Coke Co., 207 Mo. 255; Brady v. Railroad, 206 Mo. 540; Burke v. Railroad, 120 Mo.App. 691; Devoy v. Transit Co., 192 Mo. 225; Neves v. Green, 111 Mo.App. 642; McCaffery v. Railroad, 192 Mo. 152; Conner v. Nevada, 188 Mo. 162.
D. A. Murphy and Barclay, Fauntleroy & Cullen for respondent.
(1) No such judicial legislation has been attempted as to lay down the hard and fast rule that the traveler approaching a railroad crossing is bound under all circumstances to stop as well as to look and listen for approaching trains; but the courts generally agree that whether he ought to stop, in the exercise of ordinary care and caution, is a question for a jury, depending upon the circumstances in each particular case. But in this case the proof is overwhelming that a stop was made. Elliott v. Railroad, 105 Mo.App. 523; Frank v. Transit Co., 99 Mo.App. 323; Huckshold v. Railroad, 90 Mo. 548; Donohue v. Railroad, 91 Mo. 357; Mayes v. Railroad, 71 Mo.App. 142; Petty v. Railroad, 88 Mo. 318; Johnson v. Railroad, 77 Mo. 546; Russel v. Receivers, 70 Mo.App. 88; Baker v. Railroad, 122 Mo. 533; Kelly v. Railroad, 88 Mo. 534; O'Connor v. Railroad, 94 Mo. 150. (2) It is well settled law that when the statutory signals are omitted when approaching a street or public crossing, and injury results, that a prima facie case is made out and the burden is shifted to defendant to show that the omission of the signal was not the cause of the accident, and which it must do to the satisfaction of the jury. Roberts v. Railroad, 113 Mo.App. 6; McCormick v. Railroad, 50 Mo.App. 109; Turner v. Railroad, 134 Mo.App. 397; Mitchell v. Railroad, 122 Mo.App. 50. (3) Plaintiff cannot be said to be guilty of contributory negligence for the reason he and his companions satisfied the requirements of reasonable care by stopping, looking and listening. And hearing or seeing nothing of the engine, they cannot be guilty of negligence for moving toward the crossing. Those operating trains must give warning of their approach by ringing the bell or sounding the whistle. Elliott v. Railroad, 105 Mo.App. 523; Connor v. Railroad, 129 S.W. 780; Day v. Railroad, 132 Mo.App. 716. (4) Plaintiff's first instruction requires the jury to find that "as a direct consequence of defendant's negligence" plaintiff was injured and is in the form often approved. Stotler v. Railroad, 200 Mo. 107; Connor v. Railroad, 129 S.W. 777. (5) In the absence of other evidence the unlawful rate of speed will be presumed to be the cause of the accident. Schlereth v. Railroad, 96 Mo. 515; Keim v. Railroad, 90 Mo. 321; Graney v. Railroad, 140 Mo. 89; Jobin v. Railroad, 18 S.W. 996; Prewitt v. Railroad, 134 Mo. 615; State v. Railroad, 15 A. 38. (6) The use of the words "contributory negligence" without defining them, constitutes non-direction, and is not error, and if error, it was cured by defendant's instruction given on that subject. (7) The instruction on the measure of damages is in the form approved in the following cases and there was ample evidence tending to show that plaintiff was permanently injured: Mitchell v. Railroad, 97 Mo.App. 417; Schmitz v. Railroad, 119 Mo. 269; Stotler v. Railroad, 200 Mo. 10.
This is a suit for damages accrued through the negligence of defendant. Plaintiff, an infant suing by his next friend, recovered and defendant prosecutes the appeal.
Plaintiff received his injury while crossing defendant's railroad track on a public street within the city of Mexico, as a result of defendant's locomotive engine colliding with the surrey which he was driving. The view of the railroad track for a considerable distance east of the street crossing was obscured by a luxuriant growth of weeds, so that those traveling from the north on the highway were unable to discern the approach of trains, unless it was through the sense of hearing; and in this instance, the locomotive which collided with the surrey was single and alone, without a train attached, so that it emitted but slight noises to suggest its approach. Though at the time of his injury plaintiff was but a nine year old boy, he was accustomed to hitching up and driving the family horse to the surrey, which course he had followed for more than a year. Plaintiff was driving the surrey to the southward on Morris street in Mexico when the collision occurred through the approach of defendant's locomotive from the east, while he sat on the right-hand, or west, side of the front seat of the vehicle. He was accompanied by his sister and two other young girls, all of whom were en route to a picnic outside of the city. Defendant's railroad track runs east and west through the city of Mexico along, immediately south of, and adjacent, to the right of way of the Chicago & Alton Railway Company, the tracks of which, it is said, are situate only ninety-nine feet north of the northmost rail of the Wabash. In the construction of the two railroads, immediately adjacent to each other, running east and west through the western portion of the city of Mexico, a considerable excavation was made for each and the earth removed therefrom deposited between the two tracks for several hundred feet east of, and adjacent to, Morris street. Morris street, a public thoroughfare of the city, runs north and south and crosses both railroad tracks near the western limits of the town. On the date of the accident, July 2, the embankment between the two railroads was covered with a luxuriant growth of weeds to within fourteen or fifteen feet of the north rail of defendant's tracks. Plaintiff, driving an open surrey with one horse, was moving southward on Morris street, the horse in an ordinary walk. The chicago &...
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