Rains v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1879
• Citation: 71 Mo. 164
• Parties: RAINS v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

71 Mo. 164

RAINS

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Bollinger Circuit Court.--HON. J. B. ROBINSON, Judge.

REVERSED.

The eleventh instruction given for plaintiff authorized the jury to treat the acts and negligence of one William Madge toward deceased as the acts and negligence of defendant, and to hold the defendant liable accordingly, provided they should find that said Madge, at the time of the accident, which occasioned this suit, “was acting for and in the employ of defendant in the yard at Belmont, and that his duties were to direct and control assistant brakemen in said yard in the employ of the defendant, and that the deceased was, at and prior to his death, one of such.”

Wm. R. Donaldson for appellant.

B. B. Cahoon for respondent.

HOUGH, J.

This was a suit under the third section of the Damage Act, to recover damages for the death of the plaintiff's minor son, who was killed at the town of Belmont, on a side track of the defendant's road, by coming in contact with a foot bridge extending across said side track from the upper story of an elevator on the east side thereof to the upper story of a freight house on the west side thereof.

This bridge was not high enough to permit persons of ordinary height to pass safely under it, while standing erect on the top of the box cars of a freight train. For about one month before the deceased was killed, he had passed under the bridge in question at least three times daily, while rendering service as brakeman on the freight trains of defendant. At the time he was killed, he was on the top of a freight train, with his back to the bridge and the engine, running or walking rapidly toward the rear end of the train, while it was passing under the bridge, and as he did not move as rapidly in the direction he was going as the train was moving in the opposite direction, he was borne backward against the bridge, which struck him in the head and killed him. There was testimony tending to show that the deceased was not in his proper position on the train, and that he was warned of the danger he was in immediately before he came in contact with the bridge. The deceased was twenty years and six months old when killed. The jury rendered a verdict for the plaintiff for $2,000, and the defendant has appealed.

1. NEGLIGENCE: contributory negligence.

Among other instructions given for the plaintiff, was the following: “Although William Rains may have failed to exercise ordinary care and prudence at the time he was killed, and may have been guilty of negligence or carelessness which contributed to the injury complained of, yet, if the defendant might, by differently erecting or maintaining the bridge spoken of by the witnesses, or by the exercise of ordinary care and caution, have avoided the injury, the jury will find for the plaintiff.” This instruction is not the law. The cases cited by the plaintiff, in which instructions similarly worded received the qualified approval of this court, were wholly unlike the present. They were not cases in which the acts of the defendant occasioning the injury consisted in the erection of insufficient or dangerous structures, obvious to the senses long before the accident, and therefore long before the concurring negligence of the plaintiff, but they were cases in which negligent acts of the defendant, contributing to produce the injury, occurred after the contributory negligence of the plaintiff, and without which the plaintiff would not have been injured, notwithstanding his own want of reasonable and ordinary care. And, in a case of the latter class, an instruction like the one under consideration was condemned. Maher v. A. & P. R. R., 64 Mo. 276. It is the settled law of this State that, although the defendant may have been guilty of negligence contributing to produce the injury complained of, still, if the plaintiff was also guilty of negligence proximately contributing thereto, he cannot recover, unless the negligent acts of the defendant occasioning the injury, occurred after he became aware of the danger to which the plaintiff, by his own negligence, had exposed himself. Karle v. K. C., St. J. & C. B. R. R., 55 Mo. 484; Isabel v. Han. & St. Jo. R. R., 60 Mo. 482; Maher v. A. & P. R. R., 64 Mo. 276; Nelson v. A. & P. R. R., 68 Mo. 593. The instruction under consideration, which, in effect, told the jury that the plaintiff was entitled to recover, if the defendant could have so constructed the bridge as to have prevented the injury complained of, even though the deceased failed to exercise ordinary care and prudence at the time he...