76 Mo. 288 | Mo. | 1882
This is an action to recover damages on account of certain personal injuries received by the plaintiff and resulting from his being knocked down and run over by a flat car of the defendant while standing behind said car and between the rails of one of defendant’s tracks in its switch-yard, in the town of Moberly, on the night of September 7th, 1876.
On the day of said 7th of September, the firm of Platter, Crow & Co., of which plaintiff was a member, shipped a car-load of horses from Chillicothe to St. Louis, over the railway of the defendant, under a contract which entitled the plaintiff to transportation on the train hauling his stock. He got on the caboose car of the freight train on which his stock was, at Brunswick, and reached Moberly in safety about 11 o’clock p. m. of the same day. When the train reached the round-house west of the passenger depot at Moberly, the caboose was detached and the train was run down into the lower end of the company’s yard, east of the' passenger depot, where a train was to be made up to go on to St. Louis, having in it the car containing plaintiff’s stock. When the caboose was detached, the brakeman said to plaintiff, “ You get out and go down to the other caboose; this caboose goes no further.” Plaintiff was also informed that his train would start from the lower or eastern end of the yard, in the course of- an hour or two. Thereupon plaintiff and one Wagner, who was also going to St. Louis on the same train with plaintiff, got out and walked to the depot, and after remaining there about an hour, went eastward to the lower end of the yard to find their train. The night was quite dark, neither moon nor stars were shining, but it was light enough to enable plaintiff to distinguish his gray horses in the car, when close to them. When he found the tram containing Ms
That portion of the petition, which sets forth the facts constituting the negligence of the defendant, relied upon as giving a right of recovery, is as follows :
' “ Plaintiff" avers that he was rightly in said caboose car, and that he had the right to be and remain there, and to be conveyed therein to the city of St. Louis. But plaintiff avers the further fact to be, that defendant, by its agents and employes in charge of said train and caboose, so made up anew, wrongfully, and by force and violence, and without any cause or provocation whatsoever, drove out and expelled him (plaintiff) from out of said caboose into the midst of said exceeding great number of side car-tracks and cars then and there being standing, into a place of great danger; and plaintiff avers that at once and immediately, and before he had time or could extricate himself from the networks of said car-tracks and cars surrounding him, the defendant, by its agents and employes, so negligently run, managed and backed up another car, or another train of cars, standing on another car-track,*293 or switch of same main car-track, to which plaintiff had fled when expelled, as aforesaid, from the caboose aforesaid, and that the defendant had no light on the portion of the car-track, or switch of car-track aforesaid, and gave no notice, by ringing of bells or otherwise, to him of moving, running, managing or backing up of any train, or car of any train, on said car-tracks, or any switch of said car-track, and that he (plaintiff) was, without fault or negligence on his part, and without warning, struck in the back and knocked down and run over by said train so moved, run, managed and backed up as aforesaid, whereby plaintiff was then and there greatly injured, damaged, etc.”
It is perhaps probable that if the plaintiff had not been ordered out of the caboose, he would not have been injured, but this hypothesis does not establish the legal relation of cause and effect between the expulsion and the injury. If the plaintiff had not left home he certainly would not have been injured as he was, but his leaving home could not, therefore, be declared to be the cause of his injury. As the plaintiff’s injury was neither the ordinary, natural nor probable consequence of his expulsion from the caboose, such expulsion, however it might excite our indignation, in the absence of any regulation of the defendant to justify it, cannot be considered in this action, and the legal aspect of the case is precisely the same that it would have been if no such expulsion had taken place. It is to be regarded as if the plaintiff had gone to the caboose and could not get in because it was locked, or being able to get in, choose to remain outside. If the plaintiff at the time he was injured had béen on his way to the ca
The negligence of the plaintiff disclosed by his own testimony, must debar him from recovery. . ¥e are of opinion that the circuit court erred in not sustaining the demurrer to the evidence, and its judgment will, therefore, be reversed.