67 Mo. App. 598 | Mo. Ct. App. | 1896
The defendant owns and operates a double track cable street railway on Fourth street in
The averment of negligence in the petition is that “he (plaintiff) was struck by said car wholly and entirely through the fault, carelessness, and gross negligence of the agents, servants, and employees of defendant who were operating the same, who failed to check the speed of said car or to ring the bell, or to in any manner warn plaintiff of the approach of said car, although he was standing with his back to it, and in plain view of the persons engaged in its operation.”
The answer contained a general denial and also a plea of contributory negligence.
The plaintiff’s evidence tended to prove these facts in addition to those already stated. The plaintiff’s duty was to superintend and assist in removing materials from the wagons. At the time he received the injuries he was assisting in unloading some heavy iron beams from a wagon. The wagon was east of the railroad track a sufficient distance to allow cars to pass, its rear end being to the south. The cars on the east track ran north. The iron beams were being removed
The defendant’s evidence was to the effect that in approaching the place of the accident the bell on the car was rung and the speed of the ear slackened; that when the motorman first saw the plaintiff he was standing behind the wagon somewhere near its center; that he was then in no apparent danger, and that when
At the close of plaintiff’s evidence, and also at the close of all the evidence, the defendant asked an instruction of nonsuit, which was refused. This constitutes the first assignment of error.
It is claimed that the instruction of nonsuit, ought to have been given for the reasons: First, that there was no substantial evidence of the alleged negligence, and, secondly, that the evidence showed conclusively that the plaintiff failed to exercise reasonable and proper care for his own safety.
The first contention is clearly without merit. The plaintiff’s evidence tended to prove that in the performance of his work he had to take a position so hear to the track of the defendant road, that his body extended over the track, and that in approaching the place where the plaintiff was at work the gripman failed to slacken the speed of the car, or to ring the bell, or give any warning of its approach, and one of the plaintiff’s witnesses testified that when within a short distance of the place of the accident he (the grip-man) was not looking ahead, as it was his duty to do, but seemed to be examining the machinery in the bottom of the gripcar.
The question of the plaintiff’s alleged contributory negligence was for the jury, unless no other inference could fairly or reasonable be drawn from the evidence than that plaintiff in the circumstances failed to' exercise ordinary care for his own safety. Corcoran v. Railroad, 105 Mo. 399. Or, stating the rule in another way, the question is one of fact for the jury where the evidence is such as may lead the minds of fair or sensible men to different conclusions. Church v. Railroad,
In the plaintiff’s third instruction the jury were told in substance that even though they might believe that the plaintiff negligently and carelessly exposed
What we have said answers the objections made by defendant to the action of the court as to other instructions. We think that the case was fairly tried, and the judgment ought to be affirmed. But as one of the judges is of the opinion that our decision is opposed to the decisions in the cases of Vogg v. Railroad, 36 S. W. Rep. 646, and Maxey v. Railroad, 113 Mo. 1, the cause will be certified to the supreme court for final determination.