104 Mo. 211 | Mo. | 1891
— This is an action for damages for personal injuries. At the time plaintiff was hurt he
Negligence is a relative term. In every action for negligence of another there must be shown to exist some obligation or duty towards the plaintiff which the defendant has left undischarged or unfulfilled. So in this case the important question arises at once, what duty did defendant owe the plaintiff in protecting and guarding him at this crossing at the time he was hurt, and what were their relative rights and obligations with respect to each other? On the one hand, plaintiff maintains with great earnestness that this was a public crossing, and that defendant owed it to plaintiff to ring the bell upon its engine or sound its whistle before attempting to close said crossing with its cars. On the other hand, defendant urges that this was in no sense a public crossing; that no street or highway of any character crossed its track at this point; that its duty to ring the bell or sound the whistle was statutory, and had never been extended beyond the duty imposed by the statute; that all that could be ■ affirmed under the evidence was that plaintiff was a licensee; that defendant had permitted footmen to pass over its track at this point when not blocked by its cars without protest; that none of the statutory obligations devolved upon it with reference to this crossing; that plaintiff, having lived for many years in Pleasant Hill, knew that this was simply a sidetrack on which defendant loaded and unloaded cars, and in so doing was constantly putting in and taking out cars, and knew tnat it was not the duty or custom of defendant to ring the bell or blow the whistle in moving its cars in and out on this track, and, so knowing,
P. D. Mers, a witness for plaintiff, testified he had lived in Pleasant Hill since 1867. In regard to this crossing he says: ‘ ‘ The first sidewalk was put down in 1865. Two planks were put down by Mr. Brown, who then owned the Planters’ House. It was called the ‘Sherman House.’ Two boards were put down to the depot. After they run awhile the railroad company put down a platform for the convenience of the passengers to go from the depot up to the eating-house. It was made out of wood. A plank walk has been maintained there since. * * * I don’t know who paid for the walk, but I know the railroad company’s men did the work. Mrs. Henry gave up the house, I think, in 1875. Then the eating-house was changed to the Atlantic hotel. When the walk got out of repair I fixed it myself. * * * I took it up myself, and put it down myself, or had it done, after the railroad company changed from my eating-house to the Atlantic. Then, for my own convenience, I kept it in repair; that is what 1 did it for. The city would never do it.” Over this walk, so maintained in the interest of the Planters’ House, a hotel immediately in the rear, on the hill back of and behind defendant’s depot, the people passed, when it was not blocked by the cars of defendant, without objection from defendant or its agents. This walk crossed this sidetrack that ran in the rear of defendant’s station-house. This track was used for loading and unloading cars, and the defendant was constantly putting cars in and taking others off of this track.
Plaintiff was a commercial traveler of long experience in traveling on railroads. Was a man fifty-nine years of age.' Had lived in Pleasant Hill since 1871,
Now, what is meant by a public crossing in the instruction of the court and the brief.of plaintiff? We take it, it can only refer to the public crossings mentioned in section 806, Revised Statutes, 1879; section 2608, Revised Statutes, 1889; because respondent in his brief insists that it was the duty of defendant to. ring the bell or blow the whistle before its cars ajjjjroached said crossing, and because it is well established in this state that it is only necessary to ring or whistle in approaching street or road crossings. Dahlstrom v. Railroad, 96 Mo. 99; Stillson v. Railroad, 67 Mo. 671. The statute requiring the bell rung or whistle blown at public roads or street crossings is a wise one. At these crossings the public have the right to cross at all hours* and it is but simple justice that, when a company
When this cause was here on a former appeal, this court held that defendant had a perfect right to stand its cars on this sidetrack, and there was no foundation in this petition for any charge of negligence against defendant for leaving its cars unsecured. To this opinion we still adhere. Gurley v. Railroad, 93 Mo. 445. Under this evidence, then, we hold this was not a public crossing, within the meaning of section 2608, and the
But, because it was not a public crossing, it does not follow that defendant might negligently and recklessly run its cars over persons who had been in the habit of crossing there. It has been repeatedly held by this court that greater care is to be exercised in running trains within the limits of towns and cities than is required in the country (Frick v. Railroad, 75 Mo. 595, and cases there cited), and that ‘ ‘ a less degree of vigilance will ordinarily be required between the streets of a town or city khan will be required at the street crossing, or when running longitudinally in a street; but undoubtedly some vigilance is required even between streets, and the degree required will necessarily vary with the attendant circumstances.” Frick v. Railroad, supra. And in that case it was held that, in the case of an adult, the court should qualify its instruction so as to direct the jury that the railroad company would only be liable in case its servants failed to exercise ordinary care to prevent the injury, after they became aware of the danger to which the traveler was exposed.
The relation of the plaintiff and defendant must be kept in view. This was not a public crossing. If it had been so, defendant would have owed plaintiff a positive legal duty; but, being a mere private crossing, and plaintiff being a licensee only, defendant was bound not to recklessly injure plaintiff; and, if it discovered him
Conceding, then, this was not a public street or road crossing, and that plaintiff was there as a licensee, and not a trespasser, and that defendant owed him the duty to use ordinary care in discovering his presence on the track, we next inquire into plaintiff’s own conductas affecting his right to damages. Plaintiff had been a citizen of the city since 1871. He was a man fifty-nine years old ; a commercial traveler. He knew the premises well. Knew this was a side or storage track, constructed by the defendant to accommodate its freight business. He knew the defendant was constantly putting in and taking cars off of this track, in loading and unloading them. It must be taken, also, that the company was not in the habit of sounding the bells or
Symington, another of plaintiff’s witnesses, testified in regard to the spaee between the cars : “ I should judge just about room for a person to walk through ; barely room, for a person to walk through.” Hays Gurley, son of the plaintiff, who was with his father, testified: “My father went in between the cars before I did. When my father went through I was right behind him. At the time he was struck I just had my hands on the side of the cars, one hand on each car. I was
In addition to the warning given by the proximity of the cars, plaintiff’s other witnesses testify to the kicking in of the cars, and to the rattle and noise made by the cars as they came back from the west upon those near the crossing; and this is a matter of such general experience that it is hardly possible for plaintiff not to have heard these cars, had he used the common precaution of stopping before he went in between them. It is true that plaintiff says he stopped, looked and listened, and did not hear or see any cars moving ; but the other witnesses are his also, and they testify to seeing the engine kick the cars on the switch, and to their movement and noise, continuously, up to the very moment plaintiff cried out. This evidence in connection with that of plaintiff’s son that he stood there, and would not venture until he could see the result of his father’s effort to cross, all goes to show that plaintiff acted in a reckless manner, and by his own negligence contributed to his own injury. If the warning was such that Caldwell thought it dangerous, and his own son stood back and would not attempt it, it ought to have been sufficient for plaintiff. By walking thirty steps further east, he could have crossed on a public street, with all the safeguards of the statute thrown around him for his protection.
The second instruction given for the plaintiff was erroneous in this: “Plaintiff ’s petition was not framed on the theory that this was a public crossing, and that he was entitled to have the bell rung or whistle sounded as required by the statute. It is evident it is based upon the facts, as alleged in the petition, that defendant had been in the habit of permitting footmen
If tbe court intended by this instruction to submit to tbe jury this question of tbe company inviting tbe public to cross, it was very unfortunate in its language. We bold that- it should have distinctly said to tbe jury that if the company was in tbe babit of making these openings for tbe public to pass over its track at this point, and when plaintiff came to this crossing these cars were so separated as to induce plaintiff and tbe public to believe tbe company intended they should use it for a crossing, and be did so believe, then plaintiff was justified in acting upon this implied invitation, and defendant owed it to him, under such circumstances, to give him some reasonable or suitable warning of its intention to close this opening, and it would be liable to plaintiff if it neglected so to do. On ' the other band, tbe court should have said to the jury that, if tbe company bad placed its cars in such close proximity that it was dangerous or hazardous for anyone to attempt to pass between them, and it would appear to a reasonably prudent man that the company did not intend tbe public should use said opening as a crossing, then tbe implied invitation to pass was revoked, and plaintiff was not justified in risking himself between the cars at said crossing. This was a question for the jury, under the evidence and proper instructions. But this instruction was also erroneous in leaving it to the jury to say this was a public crossing. This was a misnomer and misleading. It allowed the jury to visit all the penalties for negligence at a public crossing. It is also erroneous in not requiring these various acts of defendant resulting' in plaintiff’s injury to have been negligently done ; and in not requiring plaintiff himself to have been free from negligence directly contributing to his injury.
One other point only remains to be noticed. If plaintiff is entitled to recover at all, the verdict herein is excessive. It'is in evidence that no bones were broken ; no muscles destroyed. Plaintiff was able in eight or nine months to resume his work as a commercial traveler. We are asked by counsel to make the proper deduction, and they will remit. We are aware that this court has in cases heretofore indicated how much should be remitted, but, speaking for ourselves, we think that, whenever the verdict does not upon its face appear to be the result of passion or prejudice, it is