181 Mo. App. 630 | Mo. Ct. App. | 1914
This is a suit for damages accrued to plaintiff on account of personal injuries received through defendant’s negligence. Plaintiff recovered! and defendant prosecutes the appeal.
Plaintiff received her injuries while crossing defendant’s railroad track in the town of Wentzville, through defendant’s local freight train suddenly backing against the buggy in which she was riding. It appears the local freight train had been standing for a couple of hours on the north or “passing track” at Wentzville. The train was headed to the westward, and the caboose stood about four feet west of the west end of the street crossing. Plaintiff was. in a buggy in company with her brother, who was driving the horse southward across defendant’s track, on the public crossing, when suddenly the freight train standing there was precipitated backwards with great force against the buggy, overturning it and inflicting severe and permanent injuries upon her.
The specifications of negligence relied upon in the petition go to the effect that defendant suddenly, without warning of any kind and without keeping a man or lookout at the rear of the train to give signals ..concerning its movements, backed the train upon plaintiff while on the public crossing, so as to occasion her injuries. It appears the train in question had been standing on the crossing for probably two hours, waiting for other trains from the west to pass, there. The train was a long one and extended from within four feet — that is, where the caboose stood — of the public
The evidence is abundant to the effect that this “double coupling” was made with great force. Indeed, the engineer and brakeman testify that the locomotive was running about four miles per hour at the time. Upon the occurrence of the impact and because of the force employed thereabout, the entire train was shunted backwards — that is, to the east — so as to drive the caboose against the buggy in which plaintiff was riding, passing south on the highway crossing. The buggy was thus overturned, plaintiff thrown upon the railroad track, with her back across the rail, and “scooted” along the same as. the caboose proceeded eastward.
It is first argued the court should have directed a verdict for defendant because there is no evidence tending to prove the negligent acts relied upon for a
Plaintiff and her brother, in the buggy, approached the railroad tracks from the north, driving in the public thoroughfare, and came in view of the
It is argued the court should have directed a verdict for defendant because of the contributory negligence of plaintiff in that neither she nor her brother looked to the westward to discover the presence of the engine, which subsequently, while making the coupling, occasioned ‘ her injury. But this argument is to be reckoned with in connection with the evidence of both plaintiff and her brother to the effect that they did look and listen at the time. Indeed, it is said they looked and listened both while driving across the street
Another argument proceeds on the theory that plaintiff’s view was obstructed by the band stand,, which, it is said, stood 950 feet to the westward from the point of injury, and that as plaintiff could not see the engine because of that, she was required to take another view after passing such obstruction. It is urged plaintiff should be declared negligent as a matter of law because she omitted to look again after she had passed the line of vision obstructed by the band stand 950 feet to the westward. Of course, this argument assumes and predicates upon the fact that the band stand obstructed the view, when such is. by no means conceded in the proof. However that may be, it is to be considered for what it is worth on the facts of the case. It is true if plaintiff and her brother looked, as they say they did, and did not see the locomotive, that it may be the view was obstructed by the band stand which stood some eight or ten feet north of the track and 950 feet to the westward. The evidence is, the track was. straight and the view open, except for the obstruction mentioned, for a long distance and’, no doubt, quite beyond the point at which the locomotive was then engaged. It may be conceded, too, for the purposes of the case, though not decided, in view of-the fact the band stand was 950 feet dis
' The first instruction given at the instance of plaintiff is as follows:
‘ ‘ The court instructs the jury that if you find and believe from the evidence that on or about July 13, 1911, the defendant, through its agents, servants- and employees in charge of its westbound local freight train No. 71 placed its freight train upon its. sidetrack in the town of Wentzville, Missouri, and placed the caboose, which was on- the rear end of said freight train at and near a public street crossing and permitted-said caboose to remain in that position for a long period of time; and if you further find and believe from the evidence that on said date plaintiff was riding in a buggy which was drawn’ by a horse, and which was driven by her adult brother, Anthony Feldewerth, and that while said Anthony Feldewerth was driving said horse with the buggy in which plaintiff was riding, and was in the act of crossing defendant’s railroad tracks at the public street crossing aforesaid, and in close proximity to defendant’s caboose, and while plaintiff was at said time in the exercise of ordinary care on her part, that the defendant’s agents, servants and employees in charge of said! train negligently started
It will be observed that this instruction is general in character in that it authorizes a recovery for plaintiff if the jury should find “the defendant’s agents, servants and employees of said train negligently started said train and caboose backwards, and as a result thereof, the buggy in which plaintiff was riding was struck by said caboose, and plaintiff was thrown from the buggy in which she was riding and was injured.” Although the instruction covers the whole case and authorizes a verdict for plaintiff on the finding of facts therein hypothesized, it in nowise requires the jury to find defendant guilty of the specific acts of negligence relied upon in the petition for a recovery. While the petition contains several averments of negligence, all were abandoned save the charges that “defendant’s agents, servants- and employees in charge of said train negligently, carelessly and recklessly and without giving any warning or signal and without having any employee at the rear of said train for the purpose of giving warning to plaintiff that said train was about to be moved and without any notice of any kind to plaintiff, unexpectedly caused said train and caboose to be suddenly started backwards,” so as to collide with the buggy and injure plaintiff. There can be no doubt that defendant had the right to back its train upon the crossing and that no one could complain with respect to that matter, unless such movement of the train was done in a careless and negligent manner. In other words, the mere movement of the train. backwards upon the crossing does not in and of itself imply negligence, and defendant’s dereliction of duty with respect of that matter depends upon the performance of it without giving any warning or affording
Though the averments of negligence in the petition were general in character and not specific, as it is, the instruction would be erroneous, for even in such cases, where the trial proceeds on a general averment of negligence, the court is required to submit in the instructions the specific acts of negligence developed in the evidence and may not authorize a recovery in general terms upon any negligent act the jury may evolve or conjecture. [See Allen v. St. Louis Transit Co., 183 Mo. 411, 81 S. W. 1142; Sommers v. St. Louis Transit Co., 108 Mo. App. 319, 83 S. W. 268; Miller v. United Rys. Co., 155 Mo. App. 528, 546, 134 S. W. 1045.]
But be this as it may, the petition in the instant •case relied upon and asserts specific acts of negligence .against defendant as, above pointed out, and the same rule applies in such cases. Especially’is this true when the instruction purports to cover the whole case and authorizes a verdict for plaintiff, for then, instead of fulfilling the office of a guide, such general instruction tend’s to mislead the jury, in that it seems to authorize them to evolve a theory of liability, on account of some negligent act not involved in the case. Therefore, no •one can doubt that the court should require the jury to find the negligent breach of duty in accordance with the specific facts of negligence pleaded in the petition and developed in the evidence, to the end of confining the issue to the charge laid. The Supreme Court condemns the practice of submitting the matter of defendant’s negligence in such general terms, where specific acts of negligence are relied upon in the petition,
. The instruction is erroneous because it permitted the jury to affix liability against defendant upon any theory of negligence which it might evolve without regard to the specific acts of negligence asserted and relied upon in the petition and with respect to which defendant was called to defend. It required the jury to find nothing more than that defendant’s agents and servants negligently started said train without regard to the acts relied upon. By another instruction, given at the instance of plaintiff, the term “negligence,” as used in the instructions, is defined to mean that the party guilty thereof has done something which a reasonably prudent person, under the circumstances, would not have done or failed to do something which a reasonably prudent person, under the circumstances, would have done. No doubt the jury looked to this definition in performing their office, and it is clear enough that under it defendant might be convicted on any dereliction which they might find to be contrary to the conduct which usually attends an ordinarily prudent person in like circumstances. Like general authorization to find for a plaintiff where specific acts of negligence are charged has been unhesitatingly condemned as reversible error in that it is misdirection in Beave v. St. Louis Transit Co. and the other authorities supra, and the rule of decision to that effect is firmly established. If such an instruction may be
Because of the error above pointed out, the judgment should be reversed and the cause remanded. It is so ordered.