105 Mo. 399 | Mo. | 1891
The action is for damages for personal injuries caused, as is alleged, by the negligence of defendant. Plaintiff had judgment in the circuit court of St. Louis City for $7,500, and defendant appealed.
It becomes necessary, therefore, to set out, somewhat at length, the pleadings and evidence. The petition charges that on the twelfth day of October, 1886, defendant obstructed Carroll street, a public highway in the city of St. Louis, by standing across it for the period of half an hour a long train of coal cars ; that plaintiff was a police officer in said city, and his duties as such required him to go west on said street to a point beyond said obstruction, which he could not do without crossing upon said cars; that he attempted to cross over said cars while they were standing still, but while on top of the cars defendant caused them “to be moved suddenly and violently, and without notice, signal or warning, and thereby plaintiff was violently thrown to the ground from one of said cars upon which he was standing in his efforts to cross,” whereby he was severely injured.
The petition then charges that the injuries so received were caused by the negligence of defendant in failing to observe the requirements of certain ordinances of the city forbidding railroad companies to obstruct any street crossing by standing cars thereon longer than five minutes ; requiring that “when moving the bell on the engine shall be constantly sounded;” prohibiting any freight train to be moved “ without it be well manned with experienced brakemen at their post, who shall be so stationed as to see the danger signals and hear the signals from the engine ; ” and requiring them to “station at each cross or intersecting improved street a watchman, who shall display at the crossing of cars in the daytime a red flag, and at night time a red light.”
The evidence shows that defendant’s yards in the city of St. Louis extend north and south adjacent to the levee on the river front; that twenty-two or twenty-three tracks extend across the yards north and south; that Carroll street is a public macadamized street running east and west across this yard to the river on the east; that no other public street crosses the yard within three blocks north or south of Carroll; that on the night of October 12, 1886, about ten o’clock plaintiff and a companion, both of whom were police officers of the city of St. Louis, in the proper discharge of their duties were required to go from the river east of, to a part of the city west of, defendant ’ s yards. The most direct and practical route was over Carroll street. When they came to the east side of the yards, they discovered that the street was obstructed by some box cars. They waited there from fifteen minutes to half an hour, and the cars were not moved. They then went west on the street until they came to these cars and walked to the north around them, they then found that a long line of fiat coal cars coupled together into a train also stood across Carroll street.
The end of this train could not be seen north or south of the street. The yard at the time was full of cars, and two or three engines were at work switching cars on the tracks. No engine was seen attached to the train of coal cars, nor had they been moved for half an hour. There was an electric light on this street crossing giving a good light. On the west side of these coal cars a platform or running board about eighteen inches wide extends across the ends. Without stopping, when coming to this obstruction, plaintiff’s companion got upon this running board and by it passed over the car, and got down on the opposite side safely. . Plaintiff in order to cross got upon the running board, walked over it to the opposite side of the car, and, while in the act
Plaintiff had been on the police force in the city since 1872, and in this particular locality eight or nine months, and was accustomed daily to pass over defendant’s yards by day and night. North of Carroll street was a large lumber yard fenced in and south a coal yard, where engines were constantly at work. There were more cars and obstructions there than at Carroll street. It was dangerous to walk between trains or tracks on account of moving cars and trains.
Plaintiff putin evidence the ordinances of the city, which are the same as those referred to in the answer. Defendant offered no evidence and asked no instruction other than the demurrer to the evidence. The statement of facts is substantially as given in plaintiff’s testimony.
It has been held by a majority of this court in a recent case (Hudson v. Railroad, 101 Mo. 31), very similar in all particulars to this, “that the act of climbing over stationary cars, without looking to see whether they were attached to an engine or not,” was such contributory negligence as to preclude a recovery for injuries received while making such attempt. A number of text-books and reported cases are cited in support of the decision. The following authorities also sustain the view taken in that case: Copeland v. Railroad, 61 Ala. 376 ; O'Mara v. Railroad, 18 Hun, 193. None have been found asserting the contrary.
It is argued that the rule adopted in the Hudson case should not be held to apply to the case at bar, for the reason that plaintiff was a police officer of the city, and the proper discharge of his official duties made
It was not pretended that any of the employes of defendant knew the perilous situation in which plaintiff had placed himself, and they were not bound to look for him where he had no right to be. Rine v. Railroad, 88 Mo. 392; Barker v. Railroad, 98 Mo. 50; Hudson v. Railroad, 101 Mo. 31.
The facts in this case are undisputed. No reasonable person can hesitate to pronounce the act of plaintiff, in going upon the car in question, one of gross negligence. He, himself, recognized the danger he would
It is well settled that, notwithstanding the negligence of defendant, if plaintiff was also negligent, which defendant did not know, or was not required to know, at the time, and the negligence of both concurred and co-operated in producing the damage, then the proximate cause of the injury will be attributed to the plaintiff, and there can be no recovery. Hudson v. Railroad, 101 Mo. 31; Murray v. Railroad, 101 Mo. 237; Stillson v. Railroad, 67 Mo. 671; Kellny v. Railroad, 101 Mo. 67; Weber v. Railroad, 100 Mo. 194.
Whether, in any particular case, the plaintiff was guilty of contributory negligence, is generally a question of fact for the determination of a jury ; but, when no other inference than that of negligence can be fairly and reasonably drawn from the evidence, as in this case, it should be declared as a matter of law.
The demurrer to the evidence should have been sustained. Judgment reversed.