Neier v. Missouri Pac. Ry. Co.

• Decision Date: 21 June 1886
• Citation: 1 S.W. 387
• Parties: NEIER and Wife v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

1 S.W. 387

NEIER and Wife v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

June 21, 1886.

1. MUNICIPAL CORPORATIONS — POLICE REGULATIONS — RAILROADS — SPEED — SIGNALS — EQUIPMENT.

Merz v. Missouri Pac. Ry. Co., ante, 382, and Bergman v. St. Louis, I. M. & S. R. Co., ante, 384, holding ordinance 10,305 of the city of St. Louis, regulating the speed, signals, and equipment of railroad trains running within the city limits, to be constitutional, followed.

2. NEW TRIAL — MOTION FOR NEW TRIAL — WHEN FILED — EVIDENCE AS TO TIME OF FILING.

Where the bill of exceptions shows that the trial took place on the eleventh day of February, and the record proper of the proceedings had in open court shows that the motion for a new trial was filed on the twelfth of February, and no final adjournment of the term is shown, this is sufficient evidence to prove that the motion was filed at the same term of court, and within four days after the trial, as required by statute.

3. NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — RAILROADS — DAMAGES.

A railroad company is not liable in damages to a party injured while negligently driving across its track, laid in a city street, if it is shown that its servants were at their posts, doing their duty, and that the engineer did what he could to prevent the injury after discovering the danger.

4. SAME — DRIVING ON RAILROAD TRACK — TAKING CASE FROM JURY.

Where a party attempted to drive across railroad tracks laid in a city street, within sight of the smoke, and within hearing of the noise, from a train approaching round a curve, and after being thrice warned, she is guilty of such contributory negligence as to justify the court in taking the case from the jury.

5. SAME — PLEADING — ANSWER — CONTRIBUTORY NEGLIGENCE.

A general averment of contributory negligence in an answer, without specifying the particular act complained of, is sufficient.

Appeal from St. Louis court of appeals.

L. Gottschalk, for respondents, Joseph Neier and Wife. T. J. Portis, for appellant, Missouri Pac. Ry. Co.

SHERWOOD, J.

Action for damages for injuries done the wife of Joseph Neier, her co-plaintiff, by one of the locomotives of the defendant's company. On trial had the jury returned a verdict for $4,000 damages, and on appeal to the St. Louis court of appeals the judgment was affirmed. At the same term of the circuit court Joseph Neier also recovered against the defendant, for the same injury, the sum of $2,085 in the action brought in his name alone. In that case, as in this, the question involved as to the validity of ordinance 10,305 is to be ruled against the defendant; following the rulings made on that point in the cases of Merz v. Missouri Pac. Ry. Co., ante, 382, and Bergman v. St. Louis, I. M. & S. R. Co. ante, 384, (decided at the present term;) but, owing to the amount recovered in this case, the pecuniary jurisdiction of this court attaches, and this necessitates an examination of the merits of the cause.

1. Preliminary to this, however, it is insisted that such examination cannot be made, for that it does not appear that the motion for a new trial was filed at the same term. The statute requires that "all motions for new trials * * * shall be made within four days after the trial, if the term shall so long continue; and if not, then before the end of the term." Section 3707. Although the statement in the motion that it was made "within the time provided by law" is no evidence whatever of that fact, yet the bill of exceptions shows that the trial took place on the eleventh day of February, and the record proper of the proceedings had in open court shows that the motion was filed on the twelfth of February. This is sufficient to show that the motion was filed at the same term, and within four days after the trial, no order of adjournment till court in course appearing on the record. For this reason Welsh v. City of St. Louis, 73 Mo. 71, and similar cases, do not apply.

2. Coming now to the merits of the cause, no attempt will be made to examine any of the instructions given or refused, except the one in the nature of a demurrer to the evidence asked by defendant's counsel at the close of the testimony; as the point thereby taken, if well taken, precludes any necessity for further examination.

The evidence discloses that Catherina, the wife, was accustomed, for seven years prior to the accident in question, to drive the milk wagon of her husband, who was a dairyman, through the streets of St. Louis, and in the neighborhood and at the locality where the collision occurred, and there to deliver milk to his customers; that she was perfectly conversant with the running of trains in that vicinity, and of the time of their arrival and departure, seeing them as she did when going her daily rounds; that on the morning of the accident, August 7, 1880, the train was due at the locality of its occurrence 10 minutes after 6; that she was fully aware of this when she reached the vicinity of the point where she was afterwards injured; that on her arrival there she was met by a flag-man, who directed her to drive on a vacant lot near the corner of Third and Poplar streets, as "the train was coming pretty soon;" that, after remaining on the lot a little while, she left her wagon there, took milk to a customer near by, went into the basement, took a drink of coffee, and remained in the house about 10 minutes. On her return, seeing no flag-man, she drove her wagon from its place of security down Poplar street towards the river, from which direction, and on which street, the expected train would come, until she came to Mrs. Saner's, one of her customers, who lived on that street between Main and Second. When she arrived at that point it was 20 minutes past 6 o'clock, and the train past due 10 minutes, as she well knew and testified, but she proceeded to measure out milk for her customer, and while thus engaged a policeman told her the train was coming,...