Reed v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 10 May 1904
• Citation: 80 S.W. 919,107 Mo. App. 238
• Parties: REED v. ST. LOUIS, I. M. & S. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

80 S.W. 919

107 Mo. App. 238

REED v. ST. LOUIS, I. M. & S. RY. CO.^*

St. Louis Court of Appeals. Missouri.

May 10, 1904.

RAILROADS—PERSONAL INJURIES—STREET CROSSING ACCIDENT — NEGLIGENCE — CITY ORDINANCE —ADMISSIBILITY—STATUTE—CONTRIBUTORY NEGLIGENCE — JURY QUESTION — INSTRUCTIONS.

1. A city ordinance requiring persons in charge of railroad trains while passing through the city to sound the bell on approaching any street crossing, and keep it ringing until the crossing is passed, and making a violation thereof a misdemeanor, is admissible in an action against a railroad for personal injuries alleged to have resulted from a violation of the ordinance.

2. A violation of a city ordinance requiring trainmen to sound the engine bell on approaching a street crossing, and keep it ringing till the crossing is passed, is negligence per se.

3. Independent of any ordinance, it is negligence to back railroad cars over a street in a city, built up on both sides of the railroad, without either ringing the bell or blowing the whistle, under Rev. St. 1899, § 1102, providing that railroad trains shall sound a bell or blow a whistle when within 80 rods of a public crossing, and continue the ringing or blowing until the crossing is passed.

4. In an action against a railroad for personal injuries resulting from backing cars over plaintiff at a street crossing in a city while he was attempting to cross defendant's tracks, evidence examined, and the question whether plaintiff was guilty of contributory negligence held to be for the jury.

5. In an action against a railroad for personal injuries resulting from backing cars over plaintiff at a street crossing in a city while he was attempting to cross defendant's tracks, a charge on discovered peril was not prejudicial to defendant, though not warranted by the evidence, where, under the proof, the only mooted question of fact was whether plaintiff was guilty of contributory negligence, and that was found in his favor by the jury.

Appeal from Circuit Court, Wayne County; Frank R. Dearing, Judge.

Action by Charles R. Reed against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

L. F. Dinning, for appellant. O. L. Munger and R. L. Ward, for respondent.

Statement.

BLAND, C. J.

Omitting caption, the charging part of the petition is as follows: "Plaintiff states that on or about the 22d day of September, 1902, at a point in said city of Piedmont where defendant's said railroad is crossed at right angles by a traveled public road and street, the name of which is to plaintiff unknown, defendant did, by its agents, servants, and employés, so carelessly and negligently run and operate its said locomotive engine and cars on said road that, without any fault on the part of plaintiff, one of defendant's said cars was driven with great force and violence upon and against the person of plaintiff while he was lawfully upon said street crossing as aforesaid, thereby wounding, bruising, and mangling the left leg of plaintiff so as to compel him to have his said left leg amputated, thus making this plaintiff a cripple for life, and incapacitating him for work and labor and for earning a living for himself; that, on approaching said crossing in said city, defendant carelessly and negligently failed to give any signal or indication of its approach; that defendant also negligently failed to ring its bell or sound its whistle attached to its said engine on nearing said crossing, as was its duty to do; that defendant negligently ran said car upon and across said street crossing in said city, at the time above set out, without having any one in charge thereof, and without having any one in advance of said car to indicate its approach, and without having any one at the front end of said car to keep a close lookout for pedestrians who were, to defendant's knowledge, in the habit of crossing its said railroad at said point frequently and at all hours of the day, and especially at the time when this injury occurred; that defendant negligently and recklessly ran said car upon and against and upon plaintiff after its said agents and servants saw, or by the exercise of ordinary care could have seen, plaintiff upon said crossing in time to have avoided said injury to plaintiff, but that, with said knowledge, or the opportunity to have obtained the same, defendant negligently and recklessly ran said car upon and against plaintiff, as aforesaid; that, at the time and place of the aforesaid injury to plaintiff, defendant was carelessly and negligently pushing said car across said street crossing in said city in front of its said engine without having any one in advance of or upon the same to give warning of its approach; that the aforesaid injury to plaintiff was caused by the aforesaid careless, reckless, and negligent acts and conduct of defendant. Plaintiff further states that by section 31 of Ordinance No. 39 of said city of Piedmont, approved April 22, 1893, it is provided that it shall be unlawful for the engineer or other person in charge of any engine or other train of cars while running through the city of Piedmont to so run it without sounding the bell, or causing the same to be sounded, upon approaching the crossing of any street, and keeping the same ringing until the engine and cars shall have crossed the same; that said section 31 of said ordinance aforesaid applies to this defendant, and that said defendant, willfully disregarding said section 31 of the ordinance aforesaid, did, on the occasion aforesaid, carelessly, recklessly, unlawfully, and in utter disregard of the lives, safety, and property of other persons, and this plaintiff in particular, run its locomotives, engines, and cars through the city of Piedmont, and at the point where and at the time when the injury was done to this plaintiff, without sounding the bell, or causing the same to be sounded, and that by reason of this, and by reason of the recklessness, carelessness, and negligence of the servants and employés of defendant in managing and running its locomotives, engines, and cars as aforesaid at the time and place where plaintiff was injured, and without any negligence on the part of this plaintiff, the injury complained of occurred." The answer is as follows: "Now at this day comes the defendant, and, by leave of court first had and obtained, files this, its answer to the amended petition of plaintiff filed in the above-entitled cause, and, for such answer, denies each and every allegation in said amended petition contained, except that defendant is a railway corporation, as in plaintiff's amended petition charged. And for further answer and defense to said amended petition, defendant says that whatever injuries, if any, plaintiff sustained on the occasion mentioned in said amended petition, were the result of his own negligence and carelessness, which directly contributed to cause the same. Wherefore defendant, having fully answered, prays to be hence dismissed, with its costs in this behalf expended."

The defendant's railroad runs north and south through Piedmont, a city of the fourth class, in Wayne county, Mo. The main track of the road runs west of the depot. From 50 to 60 feet east of the main track is a side track, known as the house track, and west of the main track, 8 or 10 feet, is another side track, known as track No. 1. All of these tracks cross Forrest street, which runs east and west about 40 feet south of the depot. Near 5 p. m. on September 22, 1902, a local freight train, having a car load of local freight for Piedmont, arrived in said town. This car load of freight was left at the freighthouse on the house track to be unloaded. The engine, with a number of cars, then ran back south into the yards, switched onto the main track, and backed north until the north car was within about 3 feet of the south line of Forrest street. The train was then cut in two, leaving nine cars standing on the main track; and the engine pulled back south with the remainder of the train, and switched several cars to their place on track No. 1. The engine then went back south to the yards, switched onto the main track, and backed up to the nine cars that had been left on that track, for the purpose of coupling onto them, pulling them back south and taking them off the main track. At the time the engine backed up to the nine cars on the main track, the plaintiff was standing astride the west rail of that track. In making the coupling, the north car of the nine was pushed over the crossing, striking plaintiff on the left shoulder, knocking him down, and, passing over one of his legs, crushed and mangled it so it had to be amputated below the knee. Plaintiff lived in Piedmont, west of the railroad. Carter & Co. had a store on the east side of the railroad track. Plaintiff testified that he went to Carter & Co.'s store to get some potatoes, and, after procuring same, started to return to his home, on Forrest street; that just as he got over the main track the freight train pulled up on track No. 1 and headed him off, and he then stepped between the two tracks; that the engine pulled four or five cars over the crossing, and reversed and backed down; that he noticed the steam escaping from the engine on the side toward him, and he stepped back a step, which put him on the main track; that he saw the cars on the main track south of him, but there was no one about them, and no engine hitched to them, and for this reason he did not think of danger from that direction, but they were shoved upon him unawares; that while the engine was backing down track No. 1 he looked down the track, south, and saw the...