Murray v. Missouri Pac. Ry. Co.

• Decision Date: 02 June 1890
• Parties: MURRAY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

13 S.W. 817

101 Mo. 236

MURRAY v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

June 2, 1890.

RAILROAD COMPANIES — ACCIDENT AT CROSSING — INSTRUCTIONS.

1. In an action against a railroad company for personal injuries received by one in a collision with defendant's train while attempting to drive over a public crossing in a city, an instruction that the burden of proving contributory negligence as alleged in the answer is on defendant does not deprive it of the benefit of plaintiff's evidence showing contributory negligence, as the instruction does not require defendant to prove that fact by its own witnesses.

2. Where the amount expended by plaintiff for medical services is shown, and it further appears that he was in bed five months, during which time he was nursed by ladies about the house, a verdict which does not appear to be excessive will not be set aside on account of an instruction that plaintiff is entitled to recover for medical services and nursing, though there is no evidence as to the value of the nursing; the presumption being that jurors were reasonably familiar with the value of such services. Duke v. Railway Co., 12 S. W. Rep. 636, distinguished.

3. Where there is evidence that the bell on defendant's engine was not rung, and that a brakeman was not stationed on the rear car, as required by an ordinance, an instruction that, if defendant's failure to keep a watchman at the crossing "directly contributed" to the accident, plaintiff could recover, provided he exercised care in attempting to drive across, is not open to the criticism that it authorizes a recovery if the negligence of defendant "contributed" with that of the plaintiff in producing the injury. It simply means that plaintiff can recover if defendant's failure to keep a watchman "directly contributed" to the injury with its other negligence.

4. Though, as matter of law, where witnesses are of equal credit, positive evidence that the bell on defendant's engine was ringing as it approached the crossing is entitled to more weight than that of witnesses who say they did not hear it, yet the position and situation of the witnesses, the attention they were giving, and their credibility, are questions for the jury, and hence it is proper to submit to them the ultimate fact as to whether or not the bell was ringing.

5. Failure of defendant to have a flagman stationed at a public crossing in a city, as required by its ordinance, is negligence per se.

Appeal from St. Louis circuit court; L. B. VALLIANT, Judge.

T. J. Portis, Bennett Pike, and Henry G. Herbel, for appellant. A. R. Taylor, for respondent.

BLACK, J.

This is a personal damage suit. Plaintiff was a driver of a hose carriage connected with the fire department of the city of St. Louis. He and others in charge of the hose were going north on Summit street. The defendant's road crosses this street; there being four or five tracks at the crossing, which run in an east and west direction. As the plaintiff attempted to go over the crossing, a train of box and flat cars backed in from the west, and struck his team and carriage. He was thrown from his seat, and received severe and permanent injuries; one of them being a broken leg. The cause of action is based upon a violation of certain ordinances which make it the duty of defendant to have a watchman at crossings like the one in question to display a signal flag; to constantly sound the engine bell when the train is moving; to have a man stationed on top of the car furthest from the engine, when the train is backing, to give danger signals; and to have the train well manned with experienced brakemen at their posts. Undisputed evidence shows that the gates at the crossing were up at the time of the accident; that there was no flagman present; and that a caboose car stood on one track so as to obstruct, to some extent, a view of the backing train. Other evidence for the plaintiff tends to show that he was driving his team at a walk or slow trot; that he exercised due care; that there was no man on the car furthest from the engine; and that the bell was not ringing. The defendant's evidence tends to show a full compliance with the ordinances in the last-mentioned respects. The accident occurred during a strike by the defendant's employes, and a number of strikers and policemen were at the crossing. There is evidence to the effect that four or five persons shouted to plaintiff to stop when he was 50 feet from the tracks, but that he went on, seeming to think the train was not close enough to catch him. Plaintiff says no one hallooed to him until just as the train struck his carriage, and in this he is...