63 Mo. App. 501 | Mo. Ct. App. | 1895
This is an action to recover damages for injuries received by plaintiff at a railroad crossing in Daviess county, September 26, 1893. The defense relied on was contributory negligence. The circum
I. We are first asked to review the court’s action in declining to stay proceedings in the cause until the plaintiff should pay the costs of a prior suit for the same cause of action, and which he had dismissed without going to trial. It seems that plaintiff, in November, 1893, begun a suit in the Daviess county circuit court, the petition in that action being the same as here, except as to the/ amount of damages asked. On the defendant’s application this first suit was, in January, 1894, removed into the federal circuit court at St. Joseph. In March following such removal, plaintiff dismissed this first action, and costs to the amount of $92 were adjudged against him. He at once instituted the present suit in the Daviess circuit court, which was taken by change of venue to Livingston county. After the issues were made by answer and reply the defendant filed his motion,' reciting the commencement of the former action, its removal to the United States circuit court, the trouble and expense which defendant had undergone in preparing for trial, the plaintiff’s voluntary nonsuit, and that the costs adjudged against him had not been paid, and prayed the court to stay further proceedings in the last suit until such costs were paid. The court at first sustained this motion, but subsequently, on a showing made by the plaintiff, revoked its action and permitted the plaintiff to proceed.
An examination of the numerous authorities which are cited in defendant’s brief fully sustains the position that the court may require the plaintiff in a second suit for the same cause of action to pay the costs in the former case, which has been dismissed, before being allowed to further harass the defendant. This power
We quote from the syllabus- in the case first above cited, and which correctly reflects the opinion: “Where a second action is waged between the same parties for the same cause, the presumption is that the second action is vexatious, and, unless the presumption is overcome, the court, in such case, will order the proceedings stayed until the costs in the first suit are paid. The burden of removing such presumption rests upon the plaintiff, and the presumption fades away before
So, then, in the ease at bar we come to this: The trial court, after hearing both sides and considering all the circumstances attending the dismissal of the first action and its reinstitution, as well as the alleged- inability of the plaintiff to pay the costs adjudged against him in the first suit, has concluded that it would not be the proper exercise of a wise, equitable discretion to make the prepayment of these costs a condition precedent to the prosecution of plaintiff’s second action. We are not prepared to say that this was an abuse of a sound discretion. We are not, indeed, furnished, in the abstract filed in this appeal, with the evidence tending to excuse the plaintiff’s failure to pay the costs in the former suit. In appellant’s statement of the case it is stated, in a general way, that plaintiff’s affidavit sought to excuse the delinquency “on account of his financial condition; that he (plaintiff) was unable to pay the costs,” etc. It is clear, however, that the trial judge had before him further and other proof not submitted to us. How, then, are we to say that the court below abused its discretion in this matter, when we are not furnished with the testimony nor fully advised of all the circumstances in the light of which such discretion was exercised? We must presume right acting on the part of the trial court. Especially is this the rule with reference to those things which come within the range of its judicial discretion. Before we can interfere with its decision in such matter there must be shown a manifest abuse of that discretion. This point, then, will be held against the defendant.
II. We come now to a more important inquiry. Was the plaintiff himself, in the matter of crossing the
Plaintiff’s evidence tended further to prove that defendant’s servants in,charge of the locomotive and tender, neglected to give the' statutory signals, when approaching the crossing, and that they were permitting the engine to drop down the grade from McEall to Pattonsburg, without the use of steam, and at the rate of thirty to forty miles per hour.
There are a great variety of cases, particularly in this state, involving this duty of the traveler, when about crossing railroad tracks. The general rule to be applied is well settled and easily declared. It is, of course, well understood, that even though the train may be negligently and recklessly operated — though the employees may be guilty of the grossest negligence and may entirely ignore those precautions prescribed by statute — yet these will not excuse persons who pass these crossings, from the exercise of a due and proper care for their own safety. They have no right, blindly and heedlessly, to go forward and put themselves in the way of danger, all on the assumption that the train men will carefully observe and perform their duty in protecting the traveling public. Persons about entering upon these dangerous crossings are bound to the
The difficulty in these cases comes from the determination of what is the correct, measure by which the' acts of men are to be judged — what would an ordinarily prudent man have done, under the same circumstances. Usually this must be left to the jury; for as to what an ordinarily careful and prudent person would have done under certain conditions is generally a question of fact about which reasonable men may fairly arrive at different conclusions. Negligence can not be conclusively established by a state of facts upon which fair minded men may well differ. McNown v. Railroad, 55. Mo. App., at page 591. But as juries have differed, and will continue to differ, as to what a reasonably prudent man would or would not do under certain circumstances, so will judges differ as to whether or not the alleged contributory negligence has been conclusively established; and hence the diversity of opinion in the courts of the country as to questions of this nature.
But, however varied may seemingly be the decisions of the courts, we are bound by constitutional mandate to follow the last announcement of the supreme court of Missouri. In two cases lately passed upon by it, we are furnished with all the law necessary to a disposition of this appeal. See Kelsay v. Railroad Co., 30 S. W. Rep. 339; and Hayden v. Railroad, 124 Mo. 566. The facts in both are much the same as here. In the Kelsay case, the plaintiff drove onto the railroad crossing at a point, where a view of the track was obstructed, until she arrived at twenty-five feet from the rails. While passing over this space, however, if she had looked both ways, she could and would have seen the approaching train (which was
The circumstances of this plaintiff were much the same as they were with Mrs. Kelsay. Admitting that
The Hayden case, 124 Mo. 566, quite as strongly denies this plaintiff any right to recover. There the plaintiff’s husband was killed at a crossing and the plaintiff was nonsuited, because the deceased failed to look both ways for a train while passing over a space of fifteen to thirty feet just before entering upon the track with his wagon and team. There, as here, were obstructions that prevented a view of the track until approaching within a very short distance. “The crucial question is”, says the opinion: “Could the deceased, after he had passed the obstruction and when he was in a place of safety, fifteen, twenty, twenty-five or thirty feet from the crossing, as the case may have been, with nothing to distract his attention from his situation with reference thereto, have seen
These late decisions, based as they are on facts so very similar to the ease at bar, settle this controversy in favor of the defendant. The McNown case, 55 Mo. App. 585, is different in some respects from the one at bar. That decision assumes that McNown did look after passing from under cover of the grain house, or other small structure, which prevented his view of the track, and that he saw the coming train just in time to pull his team to one side, before entering upon the track. He was, however, unable to get one of his horses entirely out of the way and he was struck and killed. It was a question in that case whether or not McNown did look both ways for a train, as quickly as he might have done, acting as an ordinarily prudent man would, under similar circumstances. We thought there was evidence in that case tending to prove that he did this, and hence we held that the issues ought to have been submitted to -the trial jury. We thought the decision in the McNown case covered by that of the supreme court in Kenney v. Railroad, 105 Mo. 270, and like authorities. And it is expressly announced in the Kelsay case, supra, that there was no - intention to overrule or question the authoritative force of the Kenney case.
Judgment reversed.