Stepp v. Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 31 October 1884
• Citation: 85 Mo. 229
• Court: Missouri Supreme Court
• Parties: STEPP v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

85 Mo. 229

STEPP

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Clay Circuit Court.--HON. G. W. DUNN, Judge.

REVERSED.

M. A. Low for appellant.

(1) The lower court erred in refusing to strike out the specifications of negligence in the petition, numbered two, three, four, five and six. (2) The court erred in striking out part of defendant's answer. (3) The court erred in admitting the testimony of W. R. Woodward that, under an observance of rule thirty-six, a passenger train going west would lose, in aproaching Minnaville, about two or three minutes. Telfer v. Railroad, 30 N. J. L. 188; Grows v. Railroad, 67 Maine, 100; Kelly v. Railroad, 75 Mo. 138; Moody v. Railroad, 68 Mo. 470. (4) The seventh instruction asked by defendant should have been given. McConkey v. Railroad, 40 Ia. 205; Wallace v. Railroad, 74 Mo. 595; Powell v. Railroad, 75 Mo. 82. So the eighth instruction as asked by defendant should have been given. Moody v. Railroad, 68 Mo. 472. (5) The fifth instruction asked by defendant should have been given. Maher v. Railroad, 64 Mo. 267; Fletcher v. Railroad, 64 Mo. 484; Harlan v. Railroad, 64 Mo. 480; Moody v. Railroad, 68 Mo. 470; Zimmerman v. Railroad, 71 Mo. 636; Purl v. Railroad, 72 Mo. 168; Kelley v. Railroad, 75 Mo. 138; Lenix v. Railroad, 76 Mo. 86. Defendant's fourth instruction should have been given as asked. Yarnall v. Railroad, 75 Mo. 575. (6) The jury should have been instructed to return a verdict for defendant. Artz v. Railroad, 34 Ia. 153; Wharton on Negligence, secs. 382 and 384; Railroad v. Elliott, 28 Ohio St. 355; Payne v. Railroad, 39 Ia. 326; 52 Miss. 808; 75 N. Y. 330; Sullivan v. Chrysolite, etc., Co., 21 Fed. Rep. 829; Hinckley v. Railroad Co., 120 Mass. 257; T. H. & I. R. Co. v. Clark, 73 Ind. 168; Haas v. Railroad, 47 Mich. 401.

D. C. Allen for respondent.

(1) In the absence of proof of the exact facts at the moment of death the law indulges in the presumption that the deceased was in the exercise of due care. Buesching v. Gas Light Co., 73 Mo. 219.; Louisville, etc., Ry. v. Goetz, 12 Reporter, 50; Sherman & Redfield on Negligence, sec. 44; Flynn v. Railroad, 78 Mo. 195. (2) A breach of the science of managing trains by the railway employes is prima facie evidence of negligence. P. W. & B. Railroad v. Derby, 14 How. 468. (3) The circuit court committed no error in refusing instructions asked by defendant.

BLACK, J.

Plaintiff's husband was run over and killed on the sixth of September, 1881, by one of defendant's passenger trains at the crossing of a public road at Minnaville in Clay county. She brings this suit to recover $5,000, and bases her right to recover in part upon the failure of the defendant to ring the bell or sound a whistle at the crossing. The train in question was not scheduled to, nor did it stop at, that place. Its regular time was twenty-four minutes past nine o'clock in the afternoon. On this occasion it was half an hour late. The surroundings were such that a train going west, as this was, would first pass the whole length of a side track, then the depot, and next the crossing in question, which was one hundred and seventy-five feet west from the west end of the platform of the depot.

1. The petition, among other things, sets up at length in the second, third and fourth specifications of negligence, that the engineer, when approaching the station, neglected to shut off steam so as to enable a brakeman to stop the train without sliding the wheels; that he neglected to direct his eyes to the switch, as soon as in view, and failed to have the train under control so as to be able to stop if the switch proved to be wrong, and that the crossing was a hazardous place, and the train was not under control, so as to prevent running over before stopping. The fifth specification alleges that the train was running at a rate of speed in excess of one mile in two minutes, and at the rate of forty miles per hour. The defendant moved to strike out that portion of the petition, including all of these and the sixth specification, which was overruled.

As applicable to these matters the plaintiff read in evidence, against the objections of the defendant, certain rules, which it appears were for the guidance of the defendant's employes. They are as follows:

“No. 1. Engineers will shut off steam, when approaching the station, in season to enable a brakeman to stop the train without sliding the wheels. When approaching a switch they will direct their eyes to it as soon as within view, and have their trains under such command as to be able to stop them, should the switch prove to be wrong.”

“No. 2. The brakes must not be relied upon when approaching railroad crossings or other hazardous points; but steam must be shut off, and the train held under such control, as surely to prevent running over crossings before stopping.”

“No. 3. The maximum rate of speed for the passenger trains is one mile in two minutes, and for all other trains, one mile in four minutes. Faster running is prohibited, except from special order from the superintendent in each case.”

“No. 4. Express passenger trains, having the right to pass stations without stopping, will reduce their speed so as to pass carefully the first switch.”

The fact that the company was guilty of negligence, followed by an injury, does not make it liable, unless the injury was occasioned by that negligent act. Harlan v. St. L., K. C. & N. Ry. Co., 65 Mo. 22. And such negligence must be the proximate cause of the injury. 1 Rorer on Railroads, 528. There must be a connection between the negligent act and the injury inflicted. Powell v. The Missouri Pacific Railway Company, 76 Mo. 80. The first part of the first rule has no application to this train, for it did not, nor did it intend to stop at the station at Minnaville, and the second part of the same rule is equally foreign to anything connected with the injury, and the same may be said of the fourth. The second rule has no application whatever to a public road crossing and by its own plain terms is applicable alone to railroad crossings. As to the third it was not shown, nor was it proposed to be shown that no special order was given by the superintendent to run faster than one mile in two minutes. It may be true the engineer did not have his eyes upon the first switch; that the speed of the train was not so reduced as to pass it carefully, and that if these things had been done there would have been a delay of a few minutes, as is contended, and the deceased would have passed over the track unhurt. But we do not see what direct connection all this has with the injury complained of. If a disobedience of some of these rules at some other station caused the delay of a half hour, that would not lay a foundation for recovery in this case. These rules and the instructions based upon them could have no other effect than to divert the minds of the jurors from the real issue. Instructions one and two, given at the instance of plaintiff, should have been refused, the rules should have been excluded, and the motion to strike out part of the petition should have been sustained as to the second, third and fourth specifications of negligence.

While in the absence of municipal regulations no rate of speed is negligence per se ( Powell v. Railroad, 76 Mo. 82; Bell v. Railroad, 72 Mo. 50; Wallace v. Railroad, 74 Mo. 594) still it does not follow that the defendant may at all times and places run its...