139 Mo. App. 44 | Mo. Ct. App. | 1909
This is a suit for personal injuries. Plaintiff recovered and the defendant appeals. The evidence tended to prove that an immigrant shipped a carload of his property to the city of Poplar Bluff, on defendant’s railroad. In this car were his household goods, numerous boxes and some live stock. The immigrant accompanied the shipment and had the car exclusively in his possession under his private lock and key. The car reached Poplar Bluff some time during the night and was set out by the train crew on defendant’s house track at the usual place for unloading freight from cars. The conductor of the train which had transported the car instructed the proprietor of the
The case was tried before a jury. Instructions were given for either party, but no complaint is lodged here against the same. There are two assignments only advanced for a reversal of the judgment. The first relates to the liability of defendant company under the facts in proof.- That is to say, the defendant argues that the facts proved fail to disclose a situation in which obtained the obligation of ordinary care for the plaintiff’s safety. Second, that the proof shows plaintiff was so culpably negligent as to preclude his right of recovery. We are not impressed with either of these arguments. It is said that as the proof fails to show that defendant’s station agent had knowledge that plaintiff or his employer, the immigrant, were then engaged in unloading the car, that it was not incumbent upon the plaintiff to exercise ordinary care in switching its trains there
Now touching the matter of plaintiff’s contributory negligence. Indeed, the suggestion • is hardly worthy of notice, for it appears plaintiff was busily engaged in the car and had no warning whatever of impending danger until the instant of the collision when some one, a mere bystander, “helloed” to those in the car, “look out, they are coming in there.” Plaintiff had a right to be engaged in his duties in the car and to rely upon the performance of the duty imposed by law upon the defendant railroad company with reference to him. [1 Thompson on Negligence, sec. 461; Gessley v. Mo. Pac. Ry. Co., 32 Mo. App. 413.] Negligence is not imputable to a person for failing to look out for a danger when, under the surrounding circumstances, he had no reason to anticipate such. [Langan v. St. L., etc., Ry. Co., 72 Mo. 392.] And it is certainly the law that a party is not to be charged with negligence because he did not foresee or anticipate a negligent act on the part of the defendant. [O’Connor v. Mo. Pac. Ry. Co., 94 Mo. 150.] The mere fact that plaintiff was in the act of stepping out of the car in order to avoid the danger at the very instant of the collision, is entirely without influence omthis question. Upon hearing the bystander “hello” and give warning of impending danger, plaintiff attempted to move at once to a place of safety, as any other prudent man would have done. Although plain
The assignment will be overruled and the judgment affirmed. It is so ordered.