Otto v. Pryor

• Citation: 193 S.W. 28
• Decision Date: 06 March 1917
• Docket Number: No. 14610.,14610.
• Parties: OTTO v. PRYOR et al.
• Court: Court of Appeal of Missouri (US)

193 S.W. 28

OTTO v. PRYOR et al.

No. 14610.

St. Louis Court of Appeals. Missouri.

March 6, 1917.

Rehearing Denied March 20, 1917.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

"Not to be officially published."

Action by Joseph Otto against Edward B. Pryor and others. Judgment for plaintiff. Defendants appeal. Affirmed.

N. S. Brown and Henry W. Blodgett, both of St. Louis, for appellants. John C. Robertson, of St. Louis, for respondent.

BECKER, J.

This is an action for damages on account of personal injuries sustained by the plaintiff while he was employed by the Terminal Railroad Association as a bridge carpenter, by reason of being struck by a freight train of the Wabash Railroad Company in the city of Venice, state of Illinois. Upon a trial there was a verdict and judgment for the plaintiff in the sum of $3,500. Defendants appeal.

The evidence shows that the accident occurred within the city limits of Venice, Ill., and on the tracks of the Wabash Railroad and at a point immediately north of where the Terminal Railroad Association's viaduct crosses over the Wabash tracks.

On the day of the accident, and for some five or six weeks prior thereto, the plaintiff, together with some 15 other men, was employed by the Terminal Railroad Association preparing to repair the abutments to the said viaduct crossing over the Wabash tracks. The plaintiff was working as a bridge carpenter aiding in putting up the falsework necessary to sustain the bridge during the period that the repairs to the abutments were to be made. On the morning of the day upon which the plaintiff received his injuries, he was ordered by the foreman to get some cant hooks. The Wabash Railroad has its main tracks and a side track passing underneath the viaduct at this point. The plaintiff started from a point approximately 120 feet north of the viaduct and walked south until he had passed under the viaduct, where he crossed the main and switch tracks of the Wabash and at a point about 45 or 50 feet south of the viaduct picked up one cant hook. The Wabash tracks, looking south from the said viaduct, run straight south for a distance of approximately one-half mile to what is known as the Venice Crossing, and the tracks, for this distance, were in plain view of the plaintiff. He testified that after he picked up the first cant hook, and before he started back, he looked south and saw no train in sight; that he therefore walked across the two double tracks and under the viaduct to a tool box which was approximately 60 feet from the point where he picked up the first cant hook. He picked up a second cant hook beside the tool box and continued on his way carrying both cant hooks, intending to go to the point from which he started. When he had reached a point 45 feet from the tool box, and which was about 100 feet from where he had started back, he was struck by a Wabash freight train. This train was made up of an engine and some 15 or 18 freight cars, 2 or 3 of which cars were in front of the engine, being pushed, and the balance thereof were in back of the engine, being pulled; that on the freight car, which was the first car of the train, a brakeman was standing. The plaintiff did not hear or see the train that struck him, and no signal or warning was given him from the approaching train. The time which had elapsed while he was walking from where he had picked up the first cant hook until he arrived at the spot where he was hit was about one minute. A city ordinance of the city of Venice was introduced which provided that:

"No railroad corporation shall, by itself, agents, or employés, run any freight car, or cars, upon or along any railroad track within said city at a greater rate of speed than six miles per hour."

There was testimony which showed that the train was traveling 25 to 30 miles per hour. At the time the plaintiff was struck, he was walking north along the left-hand side of the main tracks of the Wabash Railroad Company. The train was moving north, in the same direction as the plaintiff, and struck him from behind. There was a depression or hollow immediately to the left of the tracks, and at or near the place he was hit there was a pile of ties piled in the depression.

Defendants offered a demurrer at the close of plaintiff's case, which the court overruled, and the defendants then introduced testimony to the effect that the Wabash owned its right of way, and that its tracks were in use long prior to the building of the viaduct in question; but defendants offered no proof relating to the manner in which plaintiff received his injuries. Defendants again offered their demurrer at the close of the case, which the court overruled.

Respondent, in his brief, cited many cases determined by the Illinois courts, "for the reason that it was in that state that the injury occurred and ordinarily is the law that should govern this case." We do not hold that view of the law. While it is true that the cause of action arose in Illinois, yet, before the statutes of Illinois or the decisions of its courts can be applicable in this case, it must appear that such statutes and decisions of the courts have been pleaded and put in evidence. This was not done excepting only the ordinance of the city of Venice as to speed of trains within its city limits. Sterling v. Parker Washington Co., 185 Mo. App. 192, loc. cit. 211, 170 S. W. 1156, 1159. In the Sterling Case, supra, the court said:

"Our courts will follow their own precedents in applying the principles of the common law relative to the reciprocal rights and duties of the parties arising out of the relation of master and servant. Nothing was shown whatsoever below as to the laws existing in the state of Oklahoma at the time in question. No statute of that state or decision of its courts was pleaded or put in evidence. If there was any statutory law in force in Oklahoma at the time, touching the matter in hand, we could not take judicial notice of it. And if one, for his right of recovery...