238 Mo. 33 | Mo. | 1911
Negligence. Plaintiff had a judgment for $1500 in the Buchanan Circuit Court. Defendant appeals, raising (among others) constitutional questions.
The gist of the complaint is that while plaintiff was on one of defendant’s tracks in South St. Joseph on his way home on the afternoon of September 23, 1907, at a point where said track was customarily used by many persons going to and returning from certain packing houses, and which customary use was known to defendant, its agents and servants in charge of its certain freight train, he was run down from behind by the engine pulling said train and grievously hurt, viz., the bones of his right leg were broken and he was otherwise bruised and wounded and thereby per
Defendant answered by denying its own negligence and pleading the contributory ■ negligence of plaintiff, not only at the time of his injury, but since that time in aggravating his injuries by his subsequent carelessness. It is next alleged that the bell and speed ordinances pleaded are unreasonable, unconstitutional, null and void for reasons set forth.
The reply was conventional.
The record shows that plaintiff did not put his case to the jury on his first two specifications of negligence. He stood on the last, seeking recovery solely on the theory that defendant’s servants either saw him in peril, or should have seen him in time to save him by using ordinary care. In this condition of things the elaborate brief of defendant’s counsel on the un
Defendant introduced no testimony. At the close of its adversary’s case it offered an instruction in the nature of a demurrer to the testimony. Saving an exception to the refusal of that instruction, it now presses the point as decisive of the case.
In our opinion that assignment of error is well made, because:
Attending to the facts, there follows a crude freehand drawing compiled from an elaborate map introduced by plaintiff and produced here for our inspection. The sketch is not drawn to a scale, but will assist in describing the locus in quo and throwing light on the facts, viz.:
In that view of it, the remaining vital question is this: Was there substantial evidence that plaintiff got on the green track at B and walked south on that track in danger for, say, one hundred or one hundred and seventy-five feet?
Such question seeks a closer view of the testimony. As we see it, plaintiff, who knew better than any body else where he walked, does not so testify. On the contrary, over and over again in answer to leading and suggestive questions he refused to state it that way. The just sum of his testimony was that he was in the act of crossing the track and was struck in crossing as he got to the center of it. The questions propounded to him by his learned counsel show beyond cavil that they were dissatisfied with his answers and were allowed by the court to go to a great length in rectifying that damaging admission. But time after time he reasserted that he just got on the track and was crossing it — for instance, at one place the record shows this:
“A. (Indicating) There he come right across, right along here, saw car standing; somewheres along here saw car standing; he just crossed these tracks when he was struck.
“Q. After he had crossed the tracks there at Michigan street, then which way did he go? A. He says he walked across these tracks; until he didn’t see no train only that ear, until it struck him there.
“Q. Where did he go after he got across the tracks? A. He says he didn’t go nowheres — no-wheres — the train just struck him.
*44 “Q. Where was he when the train struck him? A. When he crossed over here, the train'hit him .and he just fell over and that the last he remembers.”
After so testifying, in response to a leading question, he said he was walking down the track. But speedily he returned to his first story and stuck to it to the end. Witness the following:
“Q. After the train struck him — how far he had got on the track before he was hit? ■ A. He fell right there when the train struck him.
“Q. If he was struck when he first stepped on the track? A. He was right in the center; he fell to his left.
' “Q. How long had he been on the track before he was struck? A. He don’t know (how) long.
“Q. How long he had been — he knows, before he was struck; he knows how long after he walked on the path of the railroad track; how long he had been there before he was struck? A. He was not on the track at all; he just cross the track to look up the street and he got struck.
“Q. Just as he went on the track? A. Yes, sir.”
Finally his counsel took him in hand again with the following result:
“Q. How far did he walk down the track before he was hurt? A. He didn’t walk down the track at all.
“Q. "Where was he when he was hurt? A. He don’t remember a thing after he cross the track?
“Q. After he crossed to the track; after he crossed the track there that day with the tie on his shoulder? A. He says he didn’t cross the track at all; it struck just as he got on the track.
“Q. "Well, did he cross these tracks from the packing houses to go on the track?
“The Court: The track west of the one that he was walking on. A. Yes, sir.
*45 “Mr. Allen:
“Q. "Where was he walking at the time he was hit; on the track or off the track or where? A. Jnst crossing the track when the train struck him.
“Q. If he was walking across the track or by the track? A. He said crossing the track.
“Q. At the time he was hurt, was he walking across the track or up and down the track?
“Mr. Woodson: That is objected to as leading.
1 ‘ A. Just across the track. ’ ’
When the foregoing testimony is supplemented by the fact that plaintiff testified that when he attempted to cross the track he looked for a train and saw none and heard no bell or warning, we have the whole case outlined by plaintiff himself.
To further sustain the issues on his behalf, plaintiff placed on the stand three putative eye-witnesses, each of whom saw something of the accident. One of these was a boy who was playing with his companion, “monkeying around” as he expressed it, some distance west of the dead cars on the O. B. & Q track, and, as we make out, somewhere near in the line of Michigan street if it had been opened west across the tracks. This witness apparently undertook to testify that plaintiff walked on the track from B to where he was struck, yet the upshot of it all finally was that he admitted (as was the patent and physical fact) that he could not see plaintiff because of the string of dead cars between him and plaintiff on the C. B. & Q. track. He saw him just as his tie flew in the air and as he was about to appear in his line of vision at the south end of the dead freight cars. Manifestly his testimony that he walked down the track was a mere conclusion of his own. A careful examination of the record results in the foregoing view of it. The companion of this boy was also a witness and his testimony rightly understood is to the same effect. The train hitting
It will be observed that-none of these witnesses' testify they saw plaintiff walk on the track from B south to where he was struck. While the testimony is a little obscure, yet it is not inconsistent with the testimony of plaintiff himself, to the effect that he had just got on the track at the time he was struck and was crossing it.
On such a record it must be held there was no case for the jury. Because:
(a) In the law of negligence a railroad track in and of itself is an unequivocal and large sign of
Under the doctrine of many cases plaintiff’s own testimony put him in the fix of a man who negligently moves from a place of safety beside the track to a place of danger from a going locomotive on a track, and immediately before it. In that view of it there is no room to apply the last clear chance or humanity rule. Contra plaintiff’s negligence is the proximate cause of his injury. [Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Mockowik v. Railroad, 196 Mo. l. c. 570 and cases cited; Eppstein v.
(b) Nor, as pointed out in the statement of facts, did plaintiff’s eye-witnesses testify to facts which carried the case to the jury, even if we ignored the testimony of plaintiff himself. Conceding that one or more of them saw plaintiff on the track one hundred or more feet south of B, yet they testified to things making it impossible for them to have seen him walking on the track from B to the point of collision. They could not see through the line of dead freight cars. That he was on the track when struck or so close to it as to be in danger is self-evident from the sequel. The jury knew so much as that from the fact he was struck there. But the question remains: Did he walk there one hundred or more feet? The laboring oar was held by plaintiff on that0 question in order to bring in play the humanity rule, That track was rough, at best it was an uninviting place to travel for a. man bearing a burden on his shoulder. It was not the customary way of traveling. To travel in a railroad yard for that distance, on a live track, without looking behind and with a burden on his back, was a highly imprudent and foolhardy thing; therefore, because of the natural instinct of love of life, there could no presumption arise that one would do such a thing. If any presumption be indulged, it would be that he walked in safety outside the track until he undertook to cross it. Therefore, whether it was done or not done would depend on proof. As we see it, there is no substantial proof to that effect. It results that the judgment should be reversed. It is so ordered,