197 Mo. 15 | Mo. | 1906
Defendant has a railroad track extending from the south along the wharf or levee, as it is usually called, turning west into Poplar street,
In the petition it is stated that there was at that time a city ordinance forbidding the running of a locomotive or train on a steam railroad in the city at a greater rate of speed than six miles an hour; that this was a steam railroad and that this locomotive and train were running at a speed in excess of that rate. After pleading the ordinance and the facts requisite to constitute a violation of it, the petition goes on to state that the defendant then and there “negligently and wrongfully ran its train ... at a great and unlawful speed, to-wit, at a rate of speed greater than six miles an hour and greater than fifteen miles an hour.” Then follow averments to the effect that the width of defendant’s engine and ears was such that they so occupied, monopolized and obstructed the street that there was not left sufficient space in the street for an ordinary wagon or the wagon plaintiff was driving to pass without being struck by the engine, and under those conditions the defendant so wrongfully and negligently ran its. train as to render it impossible for plaintiff to pass or escape; that it was a long train propelled by a locomotive at the rear end pushing, and another at the front drawing, and that defendant thus so operated the train that the man in charge of the rear engine could not see to the front in time to foresee and avoid collision; that the train was so negligently operated that it was not stopped or arrested as soon as might have been done after the engineer of the front engine discovered the plaintiff on the street and knew or by the exercise of ordinary intelligence would have known that only by prompt stopping of the train could the collision be avoided. The. petition then charges
The answer was a general denial and a plea of contributory negligence. Reply, general denial.
The testimony for the plaintiff tended to prove as follows:
Poplar street runs east and west; in that part of it to which our attention is now directed it is narrow. There is a stone curbing on each side marking off the space for sidewalks; the sidewalks are of cinders. The width of the street is twenty féet eight inches from curb to curb. When a train is on the track there is not space between it and the curb on either side for a wagon of ordinary width to pass. Defendant’s track comes from the south along the levee and curves west across a vacant lot into Poplar street. Main street, running north and south, crosses Poplar street. From the west line of the levee to the east line of Main street the distance is 226 feet. Main street there is thirty-eight feet six inches wide. Between Main and the next parallel street west, there is an alley which comes from the north and ends in Poplar street. On the south side of Poplar street opposite the mouth of the alley is a vacant lot. From the east line of this alley to the west line of Main street the distance is 161 feet; so that from the east line of the alley to the west line of the levee the distance is 425 feet six inches. Standing at a point in the center of the alley on the north line of Poplar street looking east one could see an object on the railroad track on the levee 540 or 545 feet distant. From the levee to the alley the track rises in grade one foot nine inches to the one hundred feet, making a total rise in that distance of ten feet eleven and onelialf inches.
Plaintiff was a teamster for the Charter Oak Stove Company. He was driving a two-horse stake wagon, the driver’s seat of which was seven or eight feet above
One of plaintiff’s witnesses, a mail carrier, testified that as he was opening a mail box that stood at the southwest corner of Main and Poplar streets he heard the whistle of the locomotive at G-ratiot street which was a few squares south, and he saw a watchman then
At the close of the plaintiff’s evidence the court gave an instruction that forced the plaintiff to take a nonsuit with leave, but afterwards the court sustained the plaintiff’s motion to set aside the nonsuit, and the . defendant appealed.
I. The first point of difference between appellant and respondent to which our attention is called is M reference to the allegations of negligence in the petition. As appellant construes the petition it charges only two acts of negligence, viz.: a violation of the city ordinance regulating the speed of locomotives, and a failure to use ordinary care" to avoid the injury after the engineer saw the plaintiff in peril. Respondent construes it to charge also common-law negligence as to speed. The.significance of this feature of the plain-tiff’s case is in the fact that there was at the time of this accident no such ordinance as that pleaded in force in that part of the city, and, therefore, unless there was in the petition a charge of common-law negligence in
But following the statements in the petition which set forth the supposed ordinance and facts constituting a breach of its requirements is another paragraph in which, without reference to the ordinance, it is said that the defendant then and there “negligently and wrongfully ran its train ... at a great and unlawful speed, to-wit, at a rate of speed greater than six miles an hour and greater than fifteen miles an hour.”
Perhaps if the pleader when he drafted the petition had known that he could place no reliance on the ordinance he would have worded this other clause so as to leave it less liable to doubt that it was intended to state a case of common-law negligence in the matter of the speed of the locomotive. But we think it is sufficient as it is; taken in connection with what follows describing the situation. To say that the defendant negligently rah the train at a speed greater than fifteen miles an hour and in that connection to state the conditions then and there existing, which are such as to suggest the degree of care that ought to be exercised, is equivalent to saying that the running of the train at that rate of speed, under those conditions, was negligence.
This ruling is not inconsistent with what was said in McManamee v. Railroad, 135 Mo. 447; Chitty v. Rail
If the supposed ordinance had been in existence the plaintiff would have had the right to plead it as he did and to plead also that the train was running at a rate of speed which, under the circumstances, amounted to negligence at common law, because the facts stated as constituting a violation of the ordinance might be true and those stated as constituting conmmon-law negligence might also be true. Several acts of negligence of the same nature, and all of which may be true and either of which or all of which together may have caused the accident, may be pleaded in one count.
II. It is the duty of a railroad company running its train through a street of a populous city to use ord
The petition charged that the defendant was negligent in the matter of speed and it also charged that the defendant negligentlyfailed to stop the train in time to avoid the collision after the danger was apparent; These two charges are not necessarily inconsistent, because they might both be true, that is, the train might have been moving at a rate of speed that under the circumstances was negligent and yet it might be that the engineer could have stopped it in time to have avoided the accident by the use of ordinary care. But the defendant would not be liable, under what we call the humanitarian doctrine, if the speed of the train was such as to render it impossible for the engineer by the exercise of ordinary care to have stopped it in time, although the speed may have been negligent. Therefore, whilst it is negligence to run a train into a place where danger of collision is to be expected at such a rate of speed that it could not be quickly stopped on appearance of danger, still it cannot be said that the defendant is liable for failing to stop the train after discovering the peril if in fact the speed was such that the engineer could not stop it.
Appellant insists that the evidence shows that the respondent was guilty of contributory negligence. Respondent was familiar with the locality; he said that he had been there a thousand times. That may have been a hyperbole, but it justifies the conclusion that he knew he was liable to encounter a train in that street and that the street was so narrow he could not pass a train with his wagon; under those circumstances the law imposed on him the duty of exercising a degree of care com
Before driving out of the alley, he said, he stopped and listened for a train but heard none. He said that on the east side of the alley was a board fence nine feet high. That fence, however, would seemingly not have obstructed his east view if his estimate of its height and that of the driver’s seat on the wagon was correct. But he testified that when he drove out of the alley he looked each way for a train and none was in sight, that then he drove in a south-east direction across the railroad track to the south side of the street to a point twenty-five or thirty feet east of the alley, then he heard the whistle and immediately thereafter the engine came in sight coming around the curve into the street. He said he was then too close to the curbstone to cross it without first swinging his wagon out and then turning in and he could not turn south into Main street for the same reason, therefore in the emergency he decided that his only way of escape was into Main street on the north, and this he attempted with all his might but unfortunately did not entirely succeed.
Gratiot street is -several squares south of Poplar street; that is a whistling point for trains coming as this was. Plaintiff testified that on former occasions he had heard the whistle of trains at Gratiot street but
The trial court could not under this evidence have said as a matter of law that the plaintiff was guilty of contributory negligence. Whether or not he was was a question for the jury. The trial court was right in setting aside the nonsuit. The judgment is affirmed.