90 Mo. 548 | Mo. | 1886
This suit was instituted by plaintiff to recover damages for the alleged killing of his minor son, on the crossing of Catalan street, in the city of St. Louis, by the negligence of defendant in running its locomotive at an unlawful rate of speed ; in failing to ring the bell of the locomotive at a distance of at least eighty rods from the place where the railroad crosses Catalan street, and keep the same ringing until the locomotive had crossed the street; in running the engine backwards, in the dark, so that its approach could not be seen, without any headlight or other light to signal or indicate its approach. The answer was a general denial, and set up contributory negligence on the part of the defendant.
On the trial plaintiff obtained judgment, from which defendant has appealed, and assigns for error, among others, the action of the court in refusing to sustain a demurrer to the evidence, which necessitates an examination of it. On the part of plaintiff the evidence tends to show that plaintiff’s son, a youth about seventeen years old, was, on the eighth of December, 1882, at work on a night shift at the Vulcan Iron Works, in Carondelet, in the city of St. Louis ; that, between five and six o’clock in the morning, he left the works for his home,, driving a horse, hitched to a new and strong cart with heavy iron axle, and heavy wide tire; that he left in
Witness Huber, who was also a laborer at the Yulcan Iron Works, testified that he left the works at twenty minutes before six o’ clock and went on the north side of Catalan street, as far ■ as the railroad track and saw a cart standing a few feet east of the railroad track; that he saw another cart come up to this one; that he was walking up from the track northwest and looked round on the track, thinking an engine might come; the express always came about that time; that when he
The plaintiff: also put in evidence an ordinance of the city of St. Louis, making it unlawful for any locomotive, propelled by steam power, to run at a rate of speed exceeding six miles an hour within the limits of the city, and requiring the bell of the engine to be constantly sounded within the city limits.
On the part of defendant, both the conductor and engineer testified that the engine was running at only five or six' miles an hour, and that the bell of the engine was constantly sounded; that a red light was placed on the north end of the tender, and that the headlight of the engine was burning; that the morning was dark, and the boy and cart were not-seen till after the accident. The evidence also tended to show that red lights were usually put at the rear end of a train to indicate to-a following train that there was a receding train ahead of it. The engineer also testified that the fireman had left the employ of the company on that division, and that he did not know where he was ;. that at the time of the accident the fireman was engaged in putting coal in the engine. There was also evidence tending to show that twelve or fifteen hundred persons were in the employ of the Yulcan Works, and that the crossing was extensively used by them in going and returning from their work, as well as by cartmen and teamsters, and that this was known to those in charge of the train. On this state of the evidence we have no hesitation in saying that the demurrer to it was properly overruled.
It is next insisted that the court erred in giving improper and refusing proper instructions. On behalf of
But the chief ground of error relied upon as to the instructions is the refusal of the court to give certain instructions asked by defendant to the effect that if de
It is also insisted that the trial court should have granted a new trial because of certain remarks of plaintiff ’s counsel in his closing speech to the jury. In commenting on the absence of the fireman, whose duty it was to ring the bell, he said, “that if the testimony of the engineer and conductor was true, why did they not . produce the fireman; that the engineer and conductor could do their master’s bidding, but because the fireman asserted his manhood, and that he would testify for the truth and not perjure himself, and tell the story as it was.” Upon objection being made the court directed the attorney “to confine himself to the evidence in the case.” In the further course of his argument counsel said: “Now, further, he (the engineer) says there was the bell ringing all the time. Now, gentlemen of the jury, I ask you again, in the name of common sense, if that bell was rung, why don’t they produce that fireman to-day to substantiate their testimony. And I have a ■right to say that, in the absence of that fireman, you have a right to draw the conclusion that he told the •officers of this company at the time that he would swear ■to no -such thing, and, therefore, they did not want him.” Objection being made to this line of remarks the court, addressing the counsel, said: “I don’t think that is part of the evidence, and I don’t think you have the right to make any such conclusion from the absence of the fireman.”
The counsel further said: “ In a case of this kind •the law fixed the penalty at five thousand dollars. What jn the name of common sense do railroad companies care
Judgment affirmed,