Werner v. Citizens' Ry. Co.

• Decision Date: 30 April 1884
• Citation: 81 Mo. 368
• Parties: WERNER v. THE CITIZENS' RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

81 Mo. 368

WERNER

v.THE CITIZENS' RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Brown & Young for appellant.

No negligence on the part of the defendant was proven; certainly not the kind of negligence declared on in the petition, and hence the instruction for nonsuit should have been given. Buffington v. Railroad Co., 64 Mo. 216; Waldhier v. Railroad Co., 71 Mo. 516; Price v. Railroad Co., 72 Mo. 420. There was negligence on the part of deceased contributing directly to the accident, which precludes recovery by plaintiff. Karle v. Railroad Co., 55 Mo. 484; Isabel v. Railroad Co., 60 Mo. 482; Whalen v. Railroad Co., 60 Mo. 327; Mayer v. Railroad Co., 64 Mo. 276; Zimmerman v. Railroad Co., 71 Mo. 484; Yarnale v. Railroad Co., 75 Mo. 575, 586; Lenix v. Railroad Co., 76 Mo. 91; Button v. Railroad Co., 18 N. Y. 248; O'Keefe v. Chicago, 32 Ia. 467; Cooley on Torts, 674; Thompson on Negligence, passim and specially, vol. 2, pp. 1156, 1157, and following, with authorities there cited. The instructions given by the court, of its own motion, were wrong in matter of law, inconsistent with each other, and calculated to mislead the jury. Defendant's instructions should have been given.Hugo Muench with Henry Hitchcock for respondent.

This action, as clearly indicated by the petition, is based upon the doctrine now firmly imbedded in the jurisprudence of our State: That, in cases of collision and personal injury, even though the injured party has been guilty of negligence, and notwithstanding such negligence may have served to bring about the conditions under which he was injured; yet, if it nevertheless appears that the proximate cause of the injury was either the omission of the defendant, after becoming aware of the danger to which the injured party was exposed, to use a proper degree of care to avoid such injury, or a failure to discover that danger through recklessness or carelessness, when the exercise of ordinary care would have discovered it and averted the calamity, the defendant will be held liable. Harlan v. Railroad Co., 65 Mo. 26; Isabell v. Railroad Co., 60 Mo. 475; Maher v. Railroad Co., 64 Mo. 276; Hicks v. Railroad Co., 64 Mo. 437; 65 Mo. 36; Zimmerman v. Railroad Co., 71 Mo. 484; Swigert v. Railroad Co., 75 Mo. 480; Yarnall v. Railroad Co., 75 Mo. 586; Frick v. Railroad Co., 75 Mo. 610; Kelly v. Railroad Co., 75 Mo. 140. There was no variance between the negligence averred and that proved. Conway v. Reed, 66 Mo. 346.

HENRY, J.

Plaintiff sued for damages, under the statute, for the alleged negligent killing of her husband, Louis Werner, by one of defendant's street cars. The defenses pleaded were a denial of the facts alleged and contributory negligence on the part of the deceased. There was evidence tending to prove that deceased was guilty of contributory negligence; that in a state of intoxication he lay, or fell down, on the defendant's track and remained there until run over by the car, which occurred about 8:25 o'clock at night. It was a dark night and the only passengers on the car were Clifton and his wife, who testified that it was difficult to see any object at a distance, and that one would be liable to mistake as to what an object on the track was. That immediately after the accident the car was stopped and Werner was lying by the foot of the rear platform. The driver testified that he saw an object lying ahead of the horses, about fifteen feet, and supposed it was a bundle of hay or a sack of oats. That he could have stopped the car in two feet, but made no effort to stop it or ascertain what the object was, until after the car passed over it. That after he discovered the object on the track he proceeded right along, looking straight over his horses' heads. The court at the close of the evidence of its own motion gave the following instructions:

1. The court instructs the jury that the burden of proof upon plaintiff is to establish that Louis W. Werner came to his death in consequence of the negligence of the defendant, its servants or agents, having the management of its car at the time of the disaster.

2. If you believe from the evidence that the driver of defendant's car, by the exercise of ordinary care and prudence, might have ascertained that the object he saw lying in the track was a human being before he ran over it, and might then have stopped the car and avoided running over the deceased, then you will find for the plaintiff in the sum of $5,000.

3. In case you believe that the driver of the car which did the injury, by the exercise of ordinary care and prudence might have ascertained that the object he saw lying in the track was a human being before he ran over it, and might then have stopped the car before injuring the deceased, and that the driver failed to exercise such ordinary care and prudence, then the plaintiff will be entitled to a verdict, even though you may further believe that the deceased became drunk, and laid down on the track intentionally or in a state of intoxication.

4. On the other hand, if you believe and find that the driver of the defendant's car, after he discovered an object lying on the track, exercised such care and prudence as an ordinarily prudent and careful driver would have exercised, under the same or similar circumstances, and was not able, in the exercise of such care, to discover that the object he saw was a human being before he ran over it, but in fact believed the object to be something else, then your verdict should be for the defendant.

5. If you believe that the deceased became drunk and laid down on the track in a state of intoxication, then he took the risk of being run over, and the plaintiff cannot recover, unless he proves that the driver of the car, after he saw the deceased lying on the track, failed to exercise ordinary care and prudence in discovering or ascertaining what the object was before running over it.

And refused the following instructions asked by the defendant:

1. If the jury believe from the evidence that the deceased, Louis W. Werner, while intoxicated or under the influence of drink in the night time, lay or fell down, and remained upon defendant's track in the public street in the city of St. Louis, when defendant's cars and other vehicles were passing from time to time, then such act constituted negligence on his part; and if the jury believe from the evidence that such negligence contributed directly to the injury complained of, then they will find a verdict for defendant.

2. That although the jury may believe from the evidence that the driver of defendant's car, which ran over and injured deceased, Werner, saw an object in front of his horses just before such accident, yet that fact will not authorize the jury to find for plaintiff, unless the jury further believe that said driver failed to exercise ordinary care and skill in the management of said car after seeing said object; and in arriving at a conclusion as to whether he did so exercise ordinary care and skill in the management of said car, the jury should take into consideration the appearance of the object, the darkness of the night, and all the facts and circumstances...