108 Mo. 525 | Mo. | 1891
This is an action for damages for personal injuries received by the plaintiff on Main street in the city of St. Louis by being struck and run over by the cars of the defendant on said street. The plaintiff obtained a verdict and judgment in the trial court for $10,000, and defendant appeals.
On a former appeal a judgment in favor of the plaintiff for $7,500 was reversed and remanded. 96 Mo. 99. The second trial resulting in the judgment from which this appeal is taken was, had upon an amended petition, presenting the case in a different shape from that in which it appeared here before. The plaintiff in his amended petition after alleging the incorporation of the defendant sets out the following ordinance of the city of St. Louis in force at the time he received his injuries.
He then alleges that on or about the fourteenth “day of April, 1884, defendant had and maintained a large number of tracks, switches and sidings upon and along Main street, a public highway in said city of St. Louis, and its sail tracks so laid on said Main street crossed many of the public highways of said city, and, among others, Chouteau avenue. On the morning of said April 14,1884, plaintiff, in the pursuit of his proper business, and as he was lawfully entitled to do, was walking east on said Chouteau avenue, for the purpose of crossing said Main street, at the point of intersection of said street with said avenue. At that time defendant had blocked and obstructed the crossing of said Chouteau avenue and Main street with its freight cars, and allowed its cars to stand obstructing said street crossing more than five minutes ; and thereupon plaintiff, being unable to cross at Chouteau avenue, walked, along said Main street in a southerly direction from Chouteau avenue, until he found an opening between the cars, standing on said Main street, said opening being from twenty-five to fifty feet in width. Thereupon, plaintiff,, not seeing any cars in motion, and hearing no danger signals, and not receiving any warning that any of said cars were in motion, or were about to be put in
The answer was a general denial, and a plea of contributory negligence on which issue was joined by reply. At the close of plaintiff’s evidence the defendant interposed a demurrer, which being overruled the defendant introduced evidence, and, after all the evidence was in, renewed its demurrer by asking the court to instruct the jury that under the pleadings and all the evidence the plaintiff is not entitled to recover, which was refused.
It appears from the evidence that on the east part of Main street between Chouteau avenue or La Salle or Sycamore street the defendant maintains six tracks, running north and south longitudinally on the street; three of these tracks extend north beyond Chouteau
The plaintiff is a Swede, about forty-eight years of age, with a limited knowledge of the English language in which he expresses himself with difficulty. He is a heavy blacksmith, and was earning at the time of his injury about $18 per week at light work ; when engaged at heavy work, for which he was best fitted, he made from $100 to $120 per month. The injuries he received as described by the physician were two or more scalp wounds on top of his head, a crushing and contused wound in the fleshy part of the thigh about the middle, on the outside; the left leg was crushed below the knee, and the left thigh about the middle third — the bones, flesh and all crushed; the left arm was crushed about the middle, and he had a flesh and skin wound near the groin on the left side; these injuries necessitated-the amputation of the left' thigh at or about the beginning of the upper third, and the left arm about the middle of the. upper third, and, after his wounds
The plaintiff's evidence tended to prove that on the morning of the collision he, in the pursuit of legitimate business, had occasion to go down on the levee east of Main street; for this purpose he went down Chouteau avenue until he came to Main street which he found blocked by freight cars standing on the defendant’s tracks .at that crossing; he then turned and went south on Main street until he came to an opening between the standing cars, which appeared to him to be made for the purpose of enabling persons to pass across the street; he characterizes this opening between the standing cars as a street, “not a big street, a kind of middle-size street;” he says, “There were many cars, but they don’t move; if they move I don’t intend to cross over ; they don’t move when I was there,” — “no engine was moving;” “there was no whistle or bell sounding;” “there was no man on top of the cars.” Seeing no engine and no cars moving, and hearing no signals or noise of moving cars, though his hearing was good, he entered this opening and endeavored to make his way over .to the east side ; he passed over two tracks in safety. IIe says : “I am sure of two, maybe three; I' was hurted maybe on the third or fourth, I can’t tell that.” On cross-examination being asked if he looked south (the direction from fvhich the car came that struck him) as he passed onto the track on which he. was injured, he answered: “I am almost sure I did. * * * It is my nature to look on both sides when I cross the street. * * * Before I walk I look. * * * I looked. * * * I didn’t see the engine before I was struck. * * * Something moved or made a noise. * * * I think the tenth part of a second I see the car, or hear it, but I can’t say I was looking ;. it run over me then, quick.”
The evidence for the defendant tended to prove ' that the space between the tracks where the plaintiff
The defendant assigns for error the action of the court in giving the following instructions for the plaintiff : “1. If you believe from the evidence that an ordinance of the city of St. Louis required the defendant, when moving any car, cars or locomotive propelled by steam power within the limits of said city, to cause the bell of the engine to be constantly sounded, and, when backing any freight car, cars or locomotive propelled by steam power within said limits, to have a man stationed on the top of the car at the end of the train farthest from the engine to give danger signals, and further required that no freight train should, at ■any time be moved within said limits without being well manned with experienced brakemen at their posts, so stationed as to see the danger signals and hear the signals from the engine, then any neglect or failure by the defendant, its agents, servants or employes to comply with any or all of the above requirements was of itself negligence on the part of the defendant; ,and if you believe from the evidence that, as a result of such negligence or failure on the part of the defendant its agents, servants or employes, the plaintiff was injured, you will give a verdict in favor of the plaintiff, unless you also believe from the evidence that plaintiff was himself guilty of negligence which contributed directly to cause his injuries.
And, in refusing to give two instructions for defendant in the form in which they were asked, and in giving them as amended by the court; the first is • as follows, the portion within brackets being as asked, the remainder the emendation of the court: “2. [The court instructs the jury, that if they believe from the evidence that plaintiff could, by looking south immediately before he stepped upon the track on which he was injured, have seen the car which he states struck him, they will find their verdict for defendant ], unless the jury further believe from the evidence that plaintiff was injured by being run over on Main street, in the city of St. Louis, by a freight car, cars or locomotive propelled by steam power, which was then and there being- backed on the tracks of defendant, within the limits of the city of St. Louis, without having a man stationed on the top of the car at the end of the train farthest from the engine to give danger signals, and that if a man had been so stationed he would, by the use of ordinary care and diligence, have discovered
The second was the usual instruction in regard to the credibility of witnesses, making it applicable by amendment to all the witnesses instead of the plaintiff alone as asked.
I. The first question raised in the record is, was the evidence sufficient to take the’ case to the jury? Counsel for the defendant contends that it was not. Their argument in support of this contention proceeds not upon the theory that plaintiff did not make out a prima facie case upon the cause of action set out in the petition but upon the theo.y that, in making it out, the evidence also showed that he was himself guilty of such contributory negligence as to prevent a recovery. In support of this contention we are cited to a number of cases asserting the familiar doctrine that, when one steps on a railroad track before a moving train, the movements of which are plainly visible, if he but look to see, — or audible, if he but listen to hear, and he does neither, and he thereby suffers an injury which he could have avoided by doing either, he is guilty of such contributory negligence as will bar a recovery, unless by the exercise of reasonable care and diligence upon the part of those in charge of such moving train after he became exposed to danger from it, by his own negligent act, they could have discovered his perilous situation and avoided injuring him. It is not contended that the evidence shows conclusively that he could have either seen or heard the train that struck him at any time on his passage across the street, until he had passed over, and from behind the cars that may have been standing on the third track; but it is contended that it does show that if, while passing over- the space of seven or nine feet between that and the next track the one upon which he was injured, he had looked in the
After a very careful examination of all the evidence we are satisfied that this contention cannot be maintained. On the contrary, the evidence tends to show that the plaintiff during the whole course of his progress across the street was continuously observant of his way and its surroundings, ‘ ‘ his eyes going both sides, then front.” That he looked and saw the car that after-wards struck him and perhaps others if they were there, next to it, while he was passing over the space between the third and fourth tracks, is a reasonable inference from his evidence; but Tie did not see those cars moving, and the evidence does not show that, during the time he was passing over that space, they were moving. On the contrary, so far as his senses were informed by the servants of the defendant in their management of its locomotive and its cars on that track, they were not moving nor about to move; he heard no bell, he saw no man on the top of the car to give the signal of danger required by the ordinance. He had as much right to pursue his way across the street as the defendant had to move its cars on its track along the street, and in doing so to rely upon the assurance which the ordinance gives to travelers upon the street and thoroughfares of the city, that their passage over them will not be endangered by moving cars or cars about to be moved in .their pathway, without the warning provided for in that ordinance, and to assume that the cars which he saw and which appeared to him to be standing would ih the absence of such warning not be projected into his pathway without such warning, by an engine which may have been invisible and inaudible to him as a moving machine threatening danger.
There was then evidence from which it might reasonably be found that plaintiff’s injuries were the result of the negligence of defendant’s employes in not
II. It is objected to the first instruction that it in effect declares that the failure of the defendant’s servants to observe the requirements of the city ordinance is negligence per se, and that there was no evidence to indicate that the train was not well manned with experienced brakemen. As to the first objection it is only necessary to say that running a train in violation of a city ordinance has been repeatedly held by this court and elsewhere to be negligence per se. Keim v. Railroad, 90 Mo. 314; Eswin v. Railroad, 96 Mo. 290; Schlereth v. Railroad, 96 Mo. 509; Grube v. Railroad, 98 Mo. 330; Kellny v. Railroad, 101 Mo. 67; Murray v. Railroad, 101 Mo. 237; Thompson on Negligence, 558.
The second objection is groundless. The evidence showed the number of men engaged in the management of the train, but the court could not judicially determine whether it was well manned within the meaning of the ordinance; that was a question of fact for the jury. There was evidence tending to prove that it was not so well manned, with bralcemen at their posts, as the ordinance required, in the fact (if there were no other), that the plaintiff in broad daylight, within a few feet and in plain view of one of the men, if he had been at his post, was run over, and although the train passed over his body twice, and his cries of agony were heard at some distance by others, by one of whom his body was drawn from between the tracks while the train was yet moving out from the switch, of the whole crew not one heard, or knew anything of the matter.
III. The objection to the second instruction for the plaintiff is based upon the same assumption upon which
V. There was no error in modifying defendant’s third instruction on the credibility of the plaintiff as a witness so as to make it apply to all the witnesses in the case. A general instruction on that subject such as was given in this case is not only the most convenient, but the fairest, way of presenting that question to the j ury, when no distinction is called for by the particular circumstances of the case of any necessity for which the trial court must be the judge.
VI. The amount of damages assessed was not complained of in the motion for a new trial; it is not urged here that they are excessive; and the instruction on that subject does not call for a reversal by reason of the fact that the jury were directed to take into consideration the plaintiff’s “ age and situation ; ” nor is there ground for reversal in the fact that the counsel for plaintiff, in closing the case, referred to the fact that in the first trial the defendant introduced no witnesses. The case seems to have been well tried, and the judgment is affirmed.
IN BANG.
Brace, J. — This case has been reargued and reconsidered in banc, and the foregoing opinion handed down in division number one is adopted as the opinion of the court in banc.