187 Mo. 575 | Mo. | 1905
The vital facts of this case are:
J. B. Harper was a sign-tacker. Cass avenue is an east and west thoroughfare in St. Louis, sixty feet be
On the forenoon of October 25, 1900, Harper was standing on a short ladder plying his trade. The foot of the ladder, it seems, was planted in said passway a little north of the southeast corner of the barn, and he was in the act of tacking a tobacco sign on the barn, when a derailed freight car in a short train pulled north on said west track in charge of appellant’s servants, and the rear end of the car, swinging to the west, wedged Harper against the barn, smashed him, and drove his hammer into his neck, killing Mm instantly.
The plaintiff, as widow, sued for five thousand dollars penalty under section 2864, Revised Statutes 1899, recovered judgment, and defendant appealed.
In a voluminous petition she lays many acts of negligence at defendant’s door. There was dirt on the rails, she says, with sand and debris of timber and stone, the track was laid in sharp curves, the rails were not securely fastened to the ties, the rails were spread
Not content with this bristling array of specified points, on any one or all of which it was sought to impale defendant, plaintiff charged furthermore that her husband was killed by “the criminal intent of the officers, agents and servants and the employees of defendant in manner and form and under the circumstances aforesaid."
The state of the proof was such that none of the foregoing specifications were submitted to the jury. The theory the cause was tried on is found in two averments of the petition, viz.: (1) that the train ran in violation of section 1753 of an ordinance of the city of St. Louis, the pertinent clause of which is as follows: “. . . and no freight train shall at any time be moved within the city limits unless it be well manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals and hear the signals from the engine,” and (2) in the further allegation: “Plaintiff states .... that the said J. B. Harper had no knowledge that said car was off the track and running as aforesaid, but the officers, agents and servants of the defendant, whilst so running said freight train knew this fact or might have known it by the exercise of ordinary care, and that the said servants knew or might by the exercise of ordinary care
Referring to the first issue submitted to the jury, the proof failed to show the brakemen on the train were inexperienced, so that the first allegation of negligence was narrowed down to the question of whether the train was well manned by brakemen at their posts so stationed as to see danger signals and hear signals from the engine, and the issue was submitted in that form.
Referring to the second issue submitted to the jury, it was presented on the theory that the derailment was unaccounted for and that no liability was predicated of negligences leading up to the derailment itself, but that the only question was whether defendant by the exercise of ordinary care, after it discovered or should have discovered by the use of such care that the car was off the track and running wild, could have stopped the train in time to have prevented Harper’s death.
At the trial respondent was allowed to introduce section 1753 of said ordinance, containing the “well-manning” clause aforesaid, over the objections of appellant and error is predicated thereof.
There was an immaterial conflict in the evidence bearing on the initial point of the derailment. On the one hand, respondent’s proof tended to show that the rear truck of the rear car jumped the track at a dis
Respondent introduced some eye-witnesses, whose testimony, in substance, tended to show that their attention was drawn by the rumble of the derailed car when it reached Gass avenue. Some of them then saw switchmen or brakemen running and some saw them walking on the ground near the train and signalling, but no one of said witnesses undertook to locate the switching brakemen when the train started, or at the point of derailment, or to say that no brakemen whatever were on the train. Their evidence did, however, indicate that none were on the rear car while it passed over Cass avenue. Respondent further introduced evidence, which remained uncontradicted, that the derailed car was stopped practically at the southeast corner of Woolfert’s stable, and further that a train, of the length of the one in question and thus equipped, could be stopped in from thirty to forty feet when going at a speed shown by the testimony, and further that the proper places for brakemen on a train were one behind and one ahead to receive and give signals and that they should be so located as to readily perceive and give instant signals to the engineer when, by any hap, things went wrong.
It was shown by appellant, and stands practically
Appellant further showed, and the evidence was tmimpeached, that presently after the train was underway the rear truck of the rear car, for some unexplained cause, left the rails and Randolph, as soon as he realized it, left the car, signalling as he did so and, when he reached the ground, continuing his signals, and Holland did likewise. Cummings had felt no jar and his first intimation of danger was when he saw Randolph make a signal to him, leave the car and continue his signals running on the ground. The curve made it impossible for the engineer to see Randolph but Cummings at once signalled the engineer with the results aforesaid.
The court instructed the jury at the instance of respondent in substance (1) that they must find for plaintiff in the sum of five thousand dollars or nothing; (2) that if they found the train was not well manned with brakemen at their posts so stationed as to see the danger signals, etc., then such failure was negligence and if Harper was killed as the result of such negligence, their finding should be for plaintiff; (3) that Harper, if the jury found the passway had been constantly used by foot travellers by the acquiescence of defendant and the barn had been used as a bill board by the acquiescence of those in charge, was no trespasser; (4) that if they found Harper was using ordinary care and found that defendant by the exercise of ordinary care could have stopped said train in time to have avoided striking him and that as a consequence of such failure, did strike and kill him, then the finding should be for plaintiff; and (5) gave an instruction defining ordinary care.
Appellant prayed a peremptory instruction in the nature of a demurrer to the evidence, which was re
Appellant, having demurred to respondent’s testimony at the close of her case and saved an exception to the court’s refusal to allow that, as well as its peremptory instruction at the end of the whole case, and to the giving of all of respondent’s instructions, now presses before us all said rulings, together with the action of the court in admitting section 1753 of said ordinance, as reversible error.
I. Did the court, nisi, commit error in allowing the introduction of section 1753 of the St. Louis ordinance? And, as a corollary to that, was the error renewed in giving respondent’s instruction number 2?
In the philosophy of the law of actionable negligence the proof of-negligence itself is but one step toward recovery. Another step is to show by direct testimony, or by the proof of such facts as logically create the inference, that the negligence proved -proximately caused or contributed to the injury. The one step, without the other, is idle and might as well not be taken. Hence in this case, if it be conceded, arguendo, that the brakemen were not in proper position and if it be conceded further that such failure was negligence per se, yet if there was no causal connection between such negligence and Harper’s death, the negligence became innocuous. [Walsh v. Railroad, 102 Mo. 587.] It will be seen that liability in this case is not predicated of the fact of derailment. That issue was not submitted to the jury, and, if it had been, it could not be contended in a forum of reason that on the record facts here, the mere location of the brakemen on the train had aught to do with the derailment of the rear ear. If the location of the biukemen becomes material to the case, it must be because it bears on their ability to apprehend danger and their ability to receive and communicate signals pertaining to that danger, or their
There remains to consider whether if Randolph had been on top of the derailed car he could have applied the brakes and shortened the stop, but this theory contemplates his remaining in a place of peril and will be disposed of further on.
There was no causal connection between Randolph’s location on the ladder at the side of the car and the death of Harper, and it follows the ordinance
We do not decide that there might not be cases where the proper position of the rear brakeman on a moving freight train in a populous city is on top the car and his absence therefrom be the proximate cause of an injury; all we hold is that Randolph’s position on the side of the rear car, under the facts presented, had no causal connection with the deplorable accident or contributed not a whit thereto. This conclusion is based on the reason of the thing and is sustained by authority (see authorities in briefs of counsel). The facts in the Dahlstrom ease, relied on by respondent (108 Mo. 525), are dissimilar, and this opinion is not out of line with the law there declared, or with any ably-decided cases cited by respondent.
II. Was the case entitled to go to the jury on the theory presented by respondent’s instruction number 4, viz., that after the rear truck left the rails, appellant’s servants were negligent in not stopping the car in time to have prevented Harper’s death? and was it error to overrule appellant’s peremptory instruction?
It goes without saying that no hard and fast rule defining negligence otherwise than in general form can be or ought to be formulated by the law. The underlying reason of the thing requires that each case should stand on its own pertinent facts, in order to give that flexibility to ordinary care which would make it a test of liability in the interlacing and the varying relations and transactions of modern life.
Take the case at bar: self-evidently Harper was no trespasser. He was at least a licensee. But it would be hair-splitting to allow this case to ride off on a sour notion of the degree of care due a mere licensee, as urged by appellant, for in our view his being a licensee is neither a controlling nor an important fact. Harper was not on the track itself. If the servants of
Nor can we hold as a matter of law that if Randolph had been on top the rear car at the moment of derailment, it would have been his duty to have stayed there and set his brake. The law of nature, the spontaneous and impelling law of self-preservation, is of ancient and entirely respectable origin, and a brakeman on top of a derailed, swinging freight car seems fairly within its purview; and all this without giving any force to the maxim, “ All that a man hath will he give for his life.” The doctrine formulated in that often
If it be conceded that Randolph’s duty was to give a signal to warn of a danger known only to him, he performed that duty as he sprang from the car and again as he reached the ground. His signals were promptly caught, and, being promptly repeated to the engineer, were by him rightly interpreted and at once acted on, and the car was quickly brought to a standstill.
Making every inference of fact in favor of respondent’s evidence, we can see nothing tending to show a lack of care in stopping the car. It follows that, as respondent’s instruction numbered 4 has no evidence to support it, the demurrer should have been sustained, and, failing in that, appellant’s peremptory instruction should have been given.
The cause is reversed.