| Mo. | Oct 15, 1886
Lead Opinion
Plaintiff brought this suit in the circuit court of the city of St. Louis, to recover damages for the death of her husband, alleged to have been killed by the negligence of defendant in running its locomotive, without ringing its bell, at a reckless and unlawful rate of speed, over Dorcas street, in said city. Plaintiff obtained judgment which, on appeal to the St. Louis court of appeals, was affirmed pro forma, from which an appeal is prosecuted to this court.
At the close of plaintiff’s evidence defendant asked an instruction by way of demurrer to it, which was refused, and this action of the court is the first ground of error assigned. A demurrer to the evidence admits the facts the evidence tends to prove, and, in passing upon it, the court is required to make every inference of fact in favor of the party offering the evidence which a jury might, with any degree of propriety, have inferred in his favor, and if, when viewed in this light, it is insufficient to support a verdict in his favor, the demurrer should be sustained. Buesching v. St. Louis Gas Light Co., 73 Mo. 219" court="Mo." date_filed="1880-10-15" href="https://app.midpage.ai/document/buesching-v-st-louis-gaslight-co-8006720?utm_source=webapp" opinion_id="8006720">73 Mo. 219. The evidence in this case shows that defendant had three tracks crossing Dorcas street in the city of St. Louis, one of them being a switch track leading to the car shops, the next one to it being the south-bound track, and designated, by the witnesses, the west track, and the-next one to it being the north-bound track, and designated by the witnesses as the east track. The distance between the switch track, and the west or
On the day of the accident, Donohue, the husband of plaintiff, was driving, at a moderate gait, a one-horse spring wagon, going from west to east, on and along said Dorcas street, and on approaching the switch track, his attention was attracted to an engine on the said track to the north of him. He was looking at this engine while driving over the switch track, and until he got on the west track, when he looked south and saw the engine on the east track approaching the crossing, about thirty yards from him, when he stood up, struck Ms horse, whose forefeet were at the time off the east track, but before the crossing was made the horse and wagon were struck by the engine, and he was instantly killed. The evidence tends to show, and does show, that, Donohue did not stop his wagon, nor look south, till he got on the west track ; it tends, also, to show-that in consequence of the view being obstructed by a row of houses, deceased could not, if he had looked, seen the approach of an engine coming from the south on the east-bound track till he got on the west track, from which point a train approaching from the south could be seen at a distance of two or four blocks, and there was nothing to prevent those managing the train from seeing the perilous condition of deceased.
The following ordinances were also put in evidence:
“25. It shall not be lawful, within the limits of the city of St. Louis, for any car, cars, or locomotive, propelled by steam power, to run at a rate of speed exceeding six miles per hour ; but nothing in this section shall be so construed as to apply to any car, cars, or locomotives, run over the track or tracks, which are*362 maintained along the river bank between Arsenal street and El wood street.”
“26. It shall not be lawful, within the limits of the city of St. Louis, for any car, cars, or locomotives, propelled by steam power, to obstruct any street crossing, by standing thereon longer than five minutes ; and, .when moving, the bell of the engine shall be constantly sounded within said limits,' and if any freight car, cars, or locomotives, propelled by steam power, be backing within said limits, a man shall be stationed on top of the car, at the end of the train furtherest from the engine, to give danger signals, and no freight train shall, at any time be moved within the city limits without if be well manned with experienced brakemen at their posts, and who shall be so stationed as to see the danger signals, and hear the signals from the engine. The steam whistles of danger shall in no case be sounded except in giving the usual signals for running trains.”
It was shown, by uncontradicted evidence, that the train which killed the deceased was running at a rate of speed of from fifteen to thirty miles an hour without ringing its bell, and the evidence tended to show that south of the crossing where deceased was struck, the track was straight and level, and the persons in charge of the engine had an unobstructed view for from one hundred to three hundred yards, and that there was nothing to hinder them from seeing the perilous condition of the deceased. According to the evidence of some of the witnesses, the speed of the train was not checked till the collision occurred, and by the evidence of others, that it was not checked till in about five feet of deceased. It was testified to by two witnesses that a train running at the rate of fifteen miles an hour could have been stopped, with proper appliances, in fifty feet. Applying the rule laid down in the Buesching case, supra, to the above state of facts, we must hold that the demurrer to the evidence was properly overruled.
Neither seeing nor hearing a train, nor the . sound of a bell, for none was rung, the deceased had a right to presume that he could pursue his course without danger. What is said in the case of Kennayde v. Railroad, 45 Mo. 255" court="Mo." date_filed="1870-01-15" href="https://app.midpage.ai/document/kennayde-v-pacific-railroad-8002756?utm_source=webapp" opinion_id="8002756">45 Mo. 255, may be appropriately applied here. It. is there-
Nor can we say, as a matter of law, that Donohue, after getting on the west track, and seeing the train thirty steps south of him, when the front feet of his horse were on the east track, was guilty of negligence in
We see no just ground of complaint to the instructions given by the court. The jury were substantially told by them, that, in approaching the crossing, it was the duty of Donohue to stop, look, and listen for a train, and that if he failed to do so he was guilty of such negligence that plaintiff could not recover, unless the jury further found that defendant’s agents in charge of the train either saw, or, by the exercise of ordinary care, could have seen, the peril that Donohue was in, in time to have avoided injuring him. The instructions conformed to the theory of the law as laid down in the cases of Frick v. Railroad, 75 Mo. 595" court="Mo." date_filed="1882-04-15" href="https://app.midpage.ai/document/frick-v-st-louis-kansas-city--northern-railway-co-8007086?utm_source=webapp" opinion_id="8007086">75 Mo. 595; Kelly v. Railroad, 75 Mo. 138" court="Mo." date_filed="1881-10-15" href="https://app.midpage.ai/document/kelley-v-hannibal--st-joseph-railroad-8006983?utm_source=webapp" opinion_id="8006983">75 Mo. 138; Werner v. Railroad, 81 Mo. 374. In the case last cited it is said: “ Counsel indulges in a criticism of the cases in which this court has held that if the negligence of a defendant, which contributed directly to cause the injury, occurred after the danger in which the injured party had placed himself by his own negligence, was, .or, by the exercise of reasonable care, might have been, discovered by the defendant in time to have averted the injury, then defendant is liable, however gross the negligence of the injured party may have been in placing himself in such position of danger. Such is the well-established doctrine of this court.”
No reason is seen for interfering with the judgment, and it is hereby affirmed.
Rehearing
On motion for re-hearing.
We are asked to grant a re-hearing in this case on the sole ground that there was no evidence to show that the accident did not occur ‘‘along the river bank between Arsenal and El wood streets.” It is distinctly alleged in the petition that the place where deceased was killed was not “along the river bank, between Arsenal and El wood streets,” and it is distinctly averred in the answer, and thereby admitted, that deceased “ was killed at the time and place in question.” Besides this it sufficiently appears from the evidence of witness, Shultz, that Dorcas street crossing, where the injury occnred, is not on the river bank. In view of this, and the fact which is plainly inferable from the whole record, that the trial proceeded on an apparently admitted theory, that the place of the injury was not on the bank of the river between Arsenal & Elwood streets, the motion is overruled.