101 Mo. App. 77 | Mo. Ct. App. | 1903
The legal propositions contained in the instructions given by the trial court do not receive our entire approval; but we have not set out and shall not discuss the instructions because we think no case was made for the jury to determine.
We have given a full summary of the evidence in order to make a complete presentation of the plaintiff’s conduct in connection with the accident in which she was injured. It is argued by the defendant’s counsel that she was run over because of her own carelessness and ought to be nonsuited; and the due consideration of this contention requires that her actions both before and after she stepped on the track where she was hurt be regarded.
The statement of some witnesses that the car could have been stopped easily before it reached the plaintiff after the motorman began to ring the bell, may be put aside as of no moment; for at that time the plaintiff had just passed over the curb on the south side of
“It is settled that ordinary care and prudence require a person who is about to cross a railroad track at a street or public crossing, to look and listen for a train when by looking he could see, or by listening he could hear, an approaching train; and the omission to do ••either would be such negligence on his part as to prevent a recovery for an injury, provided his perilous .condition was not and could not, by the exercise of or- ■ dinar-y diligence, have been discovered in time to avoid .'injuring him.” Donohue v. Railroad, 91 Mo. 357.
The same doctrine is stated and approved in Kelly v. Railroad, 75 Mo. 138; Burham v. Railroad, 56 Mo. 338; Brown v. Railroad, 50 Mo. 461; Ives v. Railroad,
In most instances, persons on streets where cars .-are running will have their attention aroused by the noise one makes or by the ringing of its bell, but this •is not always true. Sometimes a pedestrian may be so .engrossed as not to hear a car-bell, or, as in this instance, .deaf so that he can not hear it. It is true too, ;that the behavior of a person may clearly signify before lie goes on the track that he will go on it in unconsciousness of impending danger, and it then becomes the duty ,o.f the motorman or engineer to begin to obtain control ,of his car or engine before it is too late to avoid striking the person, if possible. Railroad v. Tartt, 99 Fed. 369.
For the foregoing reasons we would not hold that -the plaintiff’s negligence defeats her remedy as a nec.essary legal result, if she had been struck by the car as soon as she stepped on the track.
But the testimony of all the witnesses who spoke • about the plaintiff’s actions is, that after she had heedlessly walked in front of the car which threatened her, she turned around on the track instead of going off, as she could have done by taking another step. Most of ■the witnesses say the plaintiff stood with her back to the ear; some that she turned about as though bewil-' .dered and started south again. But they all agree.that she could have crossed safely if she had continued ahead and that the collision was caused by her either stopping or whirling to return to the south side of the street.
Plaintiffs rash and thoughtless behavior while between the rails of the track is none the less fatal to her action for damages because she was absorbed by distressing news and was oblivious to danger; for those circumstances gave no intimation that she was likely to turn about or stand still until the car ran against her. Boyd v. Railroad, supra; Hill v. Drug Co., 140 Mo. 433.
As the plaintiff’s negligence was shown to be the proximate cause of the injury, the request of the defendant that a verdict in its favor be directed should have beén granted, and the judgment is reversed.