Rapp v. St. Joseph & I. R. Co.

• Decision Date: 09 November 1891
• Citation: 17 S.W. 487,106 Mo. 423
• Court: Missouri Supreme Court
• Parties: RAPP v. ST. JOSEPH & I. R. CO.

17 S.W. 487

106 Mo. 423

RAPP v. ST. JOSEPH & I. R. CO.

Supreme Court of Missouri, Division No. 1.

November 9, 1891.

DEATH BY WRONGFUL ACT — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

1. Under the damage act of Missouri, (Rev. St. 1889, § 4425,) the statutory sum of $5,000 is only recoverable of a railway company when the death of some person (not a passenger) is caused by the negligence of the company's servants, "while running, conducting, or managing any locomotive car or train of cars." Crumpley v. Railroad Co., (1888,) 98 Mo. 34, 11 S. W. Rep. 244, followed.

2. Where the evidence tends to show contributory negligence of the injured party, it is error to instruct the jury that "the law presumes that he exercised ordinary care."

(Syllabus by Barclay, J.)

Appeal from circuit court, Buchanan county; O. M. SPENCER, Judge.

Action by Catherine Rapp against the St. Joseph & Iowa Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

STATEMENT BY THE COURT. This is an action by the widow of Henry Rapp for statutory damages on account of his death. He was struck and killed by an engine of defendant, at a public road crossing, in Buchanan county, in 1887. The petition charged (among other items) negligence, in that "at the time of the construction of said railroad, and at a point where the same passes through a deep cut near to said crossing, said defendant negligently caused banks of dirt to be thrown up along-side of said railroad, on its right of way and near thereto, and on the top of the banks of said cut, which had been negligently allowed by defendant to remain at the place aforesaid since the construction of said railroad; that, for more than one year before the injuries alleged, said defendant did negligently allow to stand along-side of said railroad, on its right of way, brush, weeds, and other obstructions; that along-side of said public road which said Henry Rapp was traveling in approaching said crossing, and at the time of the injuries herein mentioned, and for more than one year prior thereto, there stood a hedge fence and other obstructions, all of which were calculated to and did, as defendant then and there well knew, hinder persons traveling along said public road from seeing or hearing trains of cars on said railroad approach said crossing." Then follow the charges of negligence in omitting to ring bell or blow whistle; the death of Mr. Rapp, etc. The answer, in addition to a general denial, pleaded contributory negligence. The trial disclosed these facts. Mr. Rapp was well acquainted with the crossing. At the time of the accident he was alone in a farm wagon drawn by a span of mules, going eastward from the city of St. Joseph along a public road running east and west. He was on his way home. His wagon was struck by the engine of one of defendant's passenger-trains at a point six or seven miles east from the city, where the public road upon which he was traveling crosses the track of defendant's railroad. The railroad track there extends in a north-westerly and south-easterly direction, running further east than south. The crossing is at the east end of a cut. The railroad track extends from the crossing north-westerly through the cutting six or eight hundred feet, then emerges upon an embankment, and across a trestle bridge, (at the west end of which stands the "whistling-post" 1450 feet from the crossing,) and passes into another cut, known as the "Saxton Cut," beyond. Before entering the last-mentioned cut it begins to curve to the southward, and continues to curve until it runs in a westerly direction. The public road runs west from the crossing over the hill through which the railroad is cut. As it goes from the railroad up the hill, it also passes through a cut. Along the north side of this road, from the right of way westward for a quarter of a mile, a hedge extended, eight or nine feet high at the time of the accident. Along the top of the railroad cut, and six or eight feet from the edge of the slope on...