121 Mo. 216 | Mo. | 1894
This is an action for damages for personal injuries in which plaintiff obtained a judgment in the St. Louis circuit court for $3,000, and the defendant appeals and assigns for error, the refusal of the court to sustain a demurrer to plaintiff’s evidence, its refusal to give an instruction to find for the. defendant at the close of all the evidence, the giving of instruction number 1 for the plaintiff, and in not setting aside the verdict because the jury disregarded instructions numbers 2 and 3 given for the defendant.
Instruction number 1 given for the plaintiff is as follows:
“1. The court instructs the jury that, if the defendant by its servants in charge of its cars received the plaintiff as a passenger on said cars, then defendant was bound by its servants in charge of its cars to exercise a high degree of care, such as would be exercised by very prudent persons under like circumstances to carry plaintiff safely to her point of destination of defendant’s line of railway. And defendant is liable for even the slightest neglect of defendant’s servants, if there was such neglect, to use such care, if such neglect caused plaintiff’s injury, and if plaintiff exercised ordinary care at the time of the injury.”
Instructions numbers 2 and 3 given for the defendant are as follows:
“2. If the jury find from the evidence that for years prior to this accident it had been customary, and that at the time of the accident it still was the custom of the Missouri Pacific Railway Company, its agents*221 and employees, to give warning of the approach of its trains to persons and vehicles about to cross its track at the intersection of Fourth and Poplar streets, and to give such warning by lowering its movable gates or barriers across Fourth street in time to prevent danger or collision; and if the jury further find that this custom was known to defendant’s agents and employees as well as to the plaintiff: and to the public- generally, then the defendant’s agents and servants are not to be charged with negligence from the mere fact (if the jury find such to be the fact) that they assumed the way to be clear and free from danger until such movable gates or barriers were lowered.
“3. If the jury believe from the evidence that plaintiff jumped off the car from fear of impending danger, and if the jury further find that such fear was caused by the negligence or improper conduct of the watchman of the Missouri Pacific Railway Company and not by the negligence or improper conduct of the driver or conductor of-the People’s Railway Company, the plaintiff cannot recover against said People’s Railway Company.”
The undisputed facts are that at the time the accident happened the defendant was operating a line of cable cars running north and south on Fourth street, and the Missouri Pacific Railway Company was operating a steam railway along a track running east and west on Poplar street in said city; that at the intersection of these two streets for the protection of the traveling public the railway company maintained a moveable barrier consisting of two long poles on the east side of Fourth street, one on the north and one on the south side of its track. These poles stood upright when the railroad track was clear and were lowered westwardly to a horizontal position across Fourth street when an engine or train- was about to cross. They
She gives the following account, in substance, of the occurrence: “When the cable cars were approaching Poplar street persons began to motion, and cries cama for the grip man to stop, that a train was coming; several other cries came, but I did not see the men, but I seen a policeman waive, and I heard cries of ‘Stop’ that there was danger; I saw the poles coming down and the light of the engine shining on the track; at the same time the passengers began to jump, and then I got up to get out; at the same time I was turned right out on the street.” She says that she does not remember whether she jumped or was thrown off; that the grip car was about half a block away, if not farther, from the Missouri Pacific Railway track when the cries and signals to stop were given; that she listened and looked to see if the gripman was going to stop; that she got up after the passengers began to rush, and she got up with the intention of jumping and that at the same time she was landed in the street.
The gate keeper, O’Brien, who was examined as a witness in behalf of plaintiff testified that he was watching the crossing of Fourth and Poplar streets; that he had been watching at that crossing about eighteen
“Q. What did yon do when you made the discovery of the approach of the engine and the approach of the grip car? A. I turned my head one way and another to see how they were situated, and I cried out at once “Stop, stop,” to the grip car, and then I commenced to operate on the gates.
“Q. How far was the grip car when you gave the signals to the gripman to ‘stop, stop?’ A. About Almond street, just turned from Almond street towards Poplar street.”
Witness states that when he made this outcry he commenced turning the gate down; that they were down at the bottom, with the exception that sometimes they spring a little, more or less; that he cried out “stop” about twice or three times; does not know that anyone else did so.
“ Q. What, if anything, did the gripman do when you made the first outcry and lowered the gate ? A. He speeded up a little more, instead of slackening.” On-being asked how the car got passed the gate witness says: “Yon see when I found they were in pretty close quarters, and I saw the engine slackening up a little, I let the poles spring up, and I let them through there, and they went through lively, too.”
The witness then first saw the plaintiff in the street about fifteen feet north of the gate. Three other witnesses who were standing near the'gate keeper give substantially the same account of the occurrence,
B. B. Stunde, who was a passenger and a witness for the defendant, testified that he heard the shouting and saw people jump off the grip and off the car he was in; that he rose up on account of the shouting; it came from the side where the gate was; the shouting was “stop her,” “stop her.” Then the gripman took a firm hold on the cable and the train seemed to shoot forward with a lurch.
Mark Hudson, another passenger and witness for defendant, testified that he heard the shouts immediately before the gates were lowered; could not say whether the gripman slacked up or took a firm hold on the cable; the car went right along; that when he saw the poles coming down he knew there was danger.
The manager of defendant’s railway was also called as a witness for defendant, from whose evidence it appears that the cable cars at this place could have been stopped within about twenty-five feet. He also testified that if the gripman had been warned by the watchman sixty, eighty or one hundred feet away by outcries, and notwithstanding these outcries he should run his cars right down and cross that track he would regard the action as highly imprudent.
It is settled law “that, if one, by the negligence of another, has been placed in a situation of apparent imminent peril, he is not required, in attempting to escape therefrom, to use the judgment and discretion that is required of him when not dominated by terror of impending danger; and if, without having time to deliberate, and acting upon the instinct of self-preservation, and as a prudent person might be expected to act in the circumstances, he is injured by adopting a dangerous alternative, he may still recover from the one by whose negligence he has been impelled to act. This is true, though no injury would have resulted had no attempt to escape been made.” Kleiber v. People’s Railway Co., 107 Mo. 240.
In that case the following rules were deduced from the authorities: “First, the peril or alarm must have been caused by the negligence of the one against whom indemnity is sought; second, the apprehension of peril, from the standpoint of the injured person, must have been reasonable, and, third, the appearance of the danger must have been imminent, leaving no time for deliberation. On the other hand, the danger must be judged by the circumstances as they appear and not byj the result.” Applying these rules to the case in hand,’ there can be no doubt that the evidence for plaintiff, if believed, brought her case strictly within their requirements, and she was entitled to go to the jury on
We find no reversible error in the matters assigned, and the judgment is affirmed,