10 Mo. App. 531 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This action is brought to recover damages for injuries sustained by the plaintiff by being struck by a freight-car of the defendant while attempting to cross its railway track. The track in question was a siding which ran diagonally along Main Street in the city of St. Louis. There were also two main tracks running along the street parallel with its sides. The plaintiff worked in a wire-mill which adjoined the street in the immediate vicinity of the spot where the injury occurred. He had worked there for ten years. On February 6, 1879, at about twenty minutes after six o’clock, the plaintiff left the wire-mill to go home. He started to cross this side track, and was knocked down and run over by a single freight-car, which the defendant’s servants had “ shunted” or “ kicked down the track by meaus of an engine, for the purpose of sending it into' a freight-house, which stood about two hundred and twenty feet to the north of the place of the accident. There ivas no person upon the car, nor any light.upon it, nor was any person sent in front of it to warn street passengers of its coming. The evidence is conflicting as to the rate of speed at which the car was shunted, one of the plaintiff’s witnesses placing it as high as fifteen miles an hour, and one of the defendant’s witnesses placing it as low as three-and-a-half miles an hour. It is not probable that it was running at a
It appears from the testimony of the plaintiff himself that he did not look or listen for approaching cars before attempting to cross the side track. He says : “I had been to work all day in the mill, and I started to go home after six o’clock; * * * I went out of the door and there was an engine coming down; I didn’t know there was cars or a car attached to it — I couldn’t tell. I stood still until it went past; I thought I had an opportunity, and went to cross over, and I did not know any more. Q. Was there anything seen or heard by you indicating the approach of a train before you got on the track? A. I seen the train coming down and I stood until it went past. Q. After that train' had passed, was there anything more seen or heard by you indicating the approach of a car or train? A. No, sir; nothing more.” On cross-examination : “ Q. You say that one train passed you, and you saw it coming and waited until it passed? A. Yes, sir. Q. Then you thought that the way was clear, and you went to cross the track and you knew no more about it? A. Yes, sir. Q. You didn’t stop to look for anything further, thinking that was the only train?
The witnesses stated that it was dark, and we may take judicial notice of the fact that there is little daylight at twenty minutes after six o’clock on February 6th ; but the testimony leaves no room to doubt that it was not so dark but that the plaintiff would have seen the approaching car, if he had looked. It appears that the street was flanked with buildings, and the place was probably lighted, as the streets of St. Louis usually are. Three of the plaintiff’s witnesses saw the car and were able to testify as to the speed at which it was going. Two of them also saw it with sufficient distinctness to testify that there was no man on it; and another man was able to testify as to the movements of a brakeman who had uncoupled it from the engine. This brakeman had a lantern in his hand ; and a flagman stood swinging a-lantern at the crossing of Chouteau Avenue, about fifty feet from the place of the accident, in the direction in which the car was running.
At the close of the plaintiff’s case the defendant moved for a peremptory instruction to the jury; this was refused. The defendant’s evidence was heard. The case was submitted to the jury on instructions, and they returned a verdict for the plaintiff in the sum of $6,500, upon which judgment was rendered.
The practice of making what is termed among railroad men, a “running switch,” or a “ flying-switch,” which consists in “ shunting” one or more cars along the track without an engine attached to them, has been, as the books show, a prolific source of accident. The shunting of a car along a track which lies within the limits of a street in the populous part of a city, with no man upon it at the brake, is very dangerous.- The danger is greatly enhanced when this is done in the night-time, and during a time when other trains are moving on adjacent tracks. Leaving out of view
Upon this question our Supreme Court has declared, in conformity with the almost universal current of authority, that when a traveller approaches a railway track, it is his duty to look and listen for approaching trains; and if he attempts to cross without doing this, and is struck by a train and injured, he cannot recover damages, unless the circumstances were such that looking and listening would not
Our views upon this exception to the foundation of the plaintiff’s case render it unnecessary to consider the propriety of the other instructions given and refused.
Thejudgment must be reversed and the cause remanded.