Zimmerman v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1880
• Citation: 71 Mo. 476
• Court: Missouri Supreme Court
• Parties: ZIMMERMAN v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

71 Mo. 476

ZIMMERMAN

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Hannibal Court of Common Pleas.--HON. JOHN T. REDD, Judge.

REVERSED.

Geo. W. Easley for appellant.

David Wagner and Hatch & Hatch for respondent.

HENRY, J.

This is a suit by plaintiff to recover damages, for an injury received by him while walking on the defendant's railroad track, in the city of Hannibal, where the railroad runs over a street of said city, occasioned, as the plaintiff alleged, by the neglect of the employees of defendant to blow the whistle or ring the bell as required by the statute. He obtained a judgment for $4,000, from which the company has appealed. The defense set up in the answer was negligence of the plaintiff, which occasioned the injury, and a denial of the negligence imputed to defendant. The evidence for plaintiff was substantially as follows:

Plaintiff testified that he was about fifty-four years of age when the accident occurred, 24th day of January, 1875; that he got up early that morning to go to a mill for bran. There was lumber piled up between his residence and the railroad; saw no train, did not look around or back. The first thing he knew was when he got on the track, the cowcatcher struck him, and he was knocked down and dragged some distance by the train. If the whistle was sounded or the bell rung, he did not hear it. Had been living in Hannibal six years, and been on the railroad more or less every day; was in the habit of going over this crossing every day and walking on the track. Hearing, worse since the accident. Up to that time could hear the signals of the train. Could hear it now at his house. Could go to the same place and turn his back and hear the signals. Did not attempt to cross over the track. Wanted to go the quickest way to the mill. It was a better walk up Collier street. Could give no reason why he did not cross the road and walk on north side of the street. Got right between the rails; walked up to the road from his residence, and turned up the railroad track. Looked across for the train when he came out of his door; did not stop and look after he crossed the bridge over the creek, to see if a train was coming. His hearing was as good then as now. It was light enough to see a train, but couldn't see it from his house on account of piles of lumber on both sides of the track. Was struck by the locomotive twenty or twenty-one feet west of the crossing. Did not hear the train until he felt the cow-catcher. Felt no jar on the track. Didn't look down the track to see if a train was coming. Couldn't tell why. His eyesight and sense of feeling were good. Couldn't tell the speed of the train; had been deaf for twenty-five years.

Dr. Thorndyke, the physician who amputated his arm, testified to the extent of his injury and the necessity for amputation; that the injury to the arm would not affect the hearing; did not know that plaintiff's hearing was better before the accident than since.

Wedgewood for plaintiff testified: The train, that morning, was going west. Witness, then an employee of defendant, signaled it to go on. This signal he gave about three minutes before he heard plaintiff's cry of distress. Saw plaintiff that morning coming across the bridge over Bear creek, before the accident. The train was then between the bridge and Hibbert's mill. Did not consider he was in any danger. There was no obstruction to plaintiff's view between the place where witness saw him, on the bridge, and the train. It was in fair view. He could have seen it, and was in plain and distinct hearing of it. He was forty or fifty feet from the train when he was crossing the bridge, and about forty feet from the main track of the Hannibal & St. Joseph Railroad, walking at, what witness called, a common jog. He further testified that plaintiff was deaf, and one had to talk to him very loud to be heard by him.

The testimony offered by plaintiff as to speed of train was conflicting, one witness fixing it at about fifteen miles, another at about six miles an hour. The defendant's evidence tended to show the speed of the train to have been from six to eight miles an hour. The testimony for plaintiff was to the effect that neither the bell on the locomotive was rung nor the whistle sounded; while the engineer and fireman on the train testified that the bell was continuously rung from a point eighty rods east of the crossing to the crossing, and that the whistle was blown at intervals. They were corroborated by a stranger who was at the depot waiting for a passenger car.

For plaintiff the court gave the following instructions:

1. It was the duty of the defendant's servants and agents, in the management of its locomotive and train under their charge, to exercise reasonable care and precaution to prevent injury to the person of plaintiff, and the failure on their part to exercise such reasonable care and precaution, would be such negligence as to make defendant liable for any injury resulting from such negligence.

2. In passing upon the question as to whether the servants and agents of the defendant were or were not guilty of negligence in the management of its locomotive and train, the jury should take into consideration all the facts and circumstances as proved by the evidence to have existed at the time when and the place where the injury occurred; and the jury should give to each fact and circumstance, and to the testimony of each witness, such weight only as the jury may deem such fact, circumstance or testimony entitled to, in connection with all the evidence in the cause.

3. Even if the jury should believe, from the evidence, that the plaintiff was guilty of negligence or carelessness which contributed to the injury, yet if they further believe, from the evidence, that the agents or servants of defendant, managing the locomotive or machinery of the defendant with which the injury was inflicted, might have avoided the said injury by the use of ordinary care and caution, the jury will find for plaintiff.

4. It was the duty of the defendant to commence ringing the bell or blowing the whistle at a distance of eighty rods from the crossing of Main street and keep ringing the bell or sounding the whistle until the locomotive and train had crossed said Main street; and if it appears, from the evidence, that, at the time of the accident, no bell was rung or whistle blown, the jury may infer negligence or carelessness in the agent or employees of the defendant, in the running and managing of the train, and their verdict should be rendered accordingly.

5. If the jury find for the plaintiff, they will, in estimating the amount of damages, take into consideration the age and situation of the plaintiff, his bodily suffering and mental anguish resulting from the injury received,and the loss sustained by the want of the limb injured and destroyed, and the extent to which he is disabled from making a support for himself by reason of the injury received.

6. The jury are the sole judges of the credibility of the witnesses who have testified in the cause, and if they believe from the evidence, that any witness has willfully sworn falsely in regard to any material fact at issue in the cause, they are at liberty to disregard the entire testimony of such witness.

Of its own motion the court gave the following:

1. Unless the jury find, from the evidence in the cause, that the servants and agents of the defendant were careless or negligent in the management of the train, and unless the jury further find that the injury was caused by such carelessness or negligence, the verdict should be for defendant.

2. If the jury find, from the evidence, that the plaintiff neglected to use a reasonable degree of care and caution, under all the circumstances, to avoid the injury, and that such negligence on his part contributed to produce the injury, they should find for the defendant, unless they further find that defendant's servants and employees could, under all the circumstances, by the exercise of reasonable care and caution on their part, in the management of the train, have prevented the injury.

3. The question as to whether the employees of defendant or the plaintiff, did, under the circumstances, use a reasonable degree of care and caution to avoid the injury, is a question of fact to be passed upon by the jury, and in passing upon it, they should consider all the facts and circumstances proved in evidence.

The following asked by the defendant were refused:

1. It was the duty of the plaintiff when he arrived at the track of defendant's railroad, at the crossing described in the petition, to stop and look and listen and ascertain whether any train was approaching before he stepped upon said track.

2. If the jury believe, from the evidence, that plaintiff's hearing was impaired at the time of the injury in question, then it was improper for him to pass upon the track of the defendant's railroad at the point described in the petition, without first stopping at said track and ascertaining whether any train was approaching; and if they further believe, from the evidence, that the plaintiff, after stepping upon said track, turned and was walking westerly thereon, then they will find for the defendant, notwithstanding they may further believe, from the evidence, that the bell was not ringing at the time the plaintiff was struck; and notwithstanding they may further believe, from the evidence, that the fireman of said train saw the plaintiff approaching the crossing described in the petition, from seventy-five to one hundred feet from the track, on the fireman's side of the engine, and said engine was from one to two hundred feet east of said crossing at the time said fireman saw the plaintiff approaching said crossing; and notwithstanding they may further believe, from the evidence, that said train was running at a speed not exceeding fifteen miles per hour.

3. If the jury believe,...