Judd v. Wabash, St. Louis & Pacific Railway Co.

23 Mo. App. 56 | Mo. Ct. App. | 1886

Philips, P. J.

I. The sole issues in this case were, first, was there any culpable act of negligence on the part of the servants of defendant in charge of the train \ and, second, was there any necessary or reasonable connection between the negligent act and the injury %

The principal act of negligence relied on by plaintiff is the fact that defendant,. at the time of the collision, was running its train at a greater rate of speed than four miles an hour, in violation of an ordinance of the town of Norborne. Such an ordinance was offered and read in evidence by plaintiff, over the' objection bl defendant. The ground-of this objection is, that the ordinance was not sufficiently pleaded in the petition to admit it in evidence.

In Robertson v. Wabash, etc., Ry. Co. (84 Mo. 121), Lt is held that, notwithstanding such ordinance is not specifically pleaded, it is admissible in evidence, as bearing on the question of negligence. This ruling we have followed in Riley v. Railroad (18 Mo. App. 385), and Nutter v. Railroad (ante, p. 328).

It is suggested by defendant’s counsel that all these decisions were predicated of actions originating in a justice' s court, where no formal pleadings are required : whereas, this action was brought in the circuit court, where the cause of action, or rather the facts constituting it, must be fully set forth. We are referred in supporl of this position to the following adjudications: Cox v. City of St. Louis, 11 Mo. 432 ; Mooney v. Kennet, 19 Mo. 551; State v. Odle, 42 Mo. 210.

It is to be observed, however, that in all of these cases, the action was founded on the ordinance, as giving .the right of action. This is the distinction noted by Martin, C., who delivered the opinion in Robertson v. Railroad, supra. I am unable to perceive any reason for the distinction suggested as to the different forums in which the action may be brought, when thé ordinance is offered in evidence, not for the purpose of giving a cause of action based thereon, but merely as evidence tending to support the general allegation of negligence.

The allegation made in this petition, that the rate of speed was in excess of that prescribed by an ordinance of the city, was sufficient to admit the proof, not as conclusive of the fact of negligence, but only, as said, by Martin, C., supra, as “a fact bearing upon the conduct of the managers of th|* train, and whether defendant was guilty of negligence at the time and place, resulting in loss to the plaintiff.”

Defendant also assigns for error, the action of the court in admitting parol testimony of the existence of the municipal organization of the town of Norborne, It is sufficient to say, that the defendant made no specific objection, at the time, to the introduction of this evidence. His objections were too general. Johnson & Collins v. Railroad, ante, p. 597.

II. As the action was not founded on the ordinance, the instructions of the court predicated on the existence of the ordinance, and especially directing the. attention of the jury to it as a fact in the case, were erroneous. .This stood as any other fact in evidence bearing upon the question of negligence. The singling out in an instruction of any j)articular piece of evidence, as was done in this case, has been repeatedly condemned by the appellate courts of this state, as calculated to mislead and unduly influence the jury.

III. The third instruction, given on behalf of plaintiff, told the jury, inter alia, that “if said team came and were upon said track of defendant in such a manner that it could have been seen by those in charge of defendant’s engine, that those in charge of said engine could see, and by the use of ordinary care might have seen and known that said team was entangled or fastened upon said track, and under the control of no one, and if those in charge of said engine negligently ran the same upon and over said horses and carriage, then the plaintiff is entitled to recover.” This instruction should not have been given in this form. There was no evidence so far as disclosed by the record before us, to support the inference that the ‘ ‘ team was entangled or fastened upon said track.”

The only foundation for such an assumption can be found in the deposition of the witness Beard, introduced by plaintiff for the purpose of contradicting the witness McCormack, who testified in behalf of defendant. No mere opinion, or statement, outside of court, of a section hand, could bind or affect the defendant. There was scarcely any foundation laid for the contradiction, and If there had been, the testimony was admissible only for the purpose of impairing the testimony of the witness McCormack. It was not proof of the existence of the fact.

This instruction, in common with others given on behalf of the plaintiff, is furthermore faulty in employing the language : ‘ ‘ if the engineer, by the use of ordinary care, might have seen and known that said team was entangled,” etc. As applied to the facts, of this case, such an instruction should not be given. Where the animal, as here, suddenly comes upon the track, at a point where defendant was not required to fence its road, and not at any public crossing, no negligence’ is imputable to the servants of defendant in managing the train until after the animal has so entered upon the track in front of the engine. Sloop v. Railroad, 22 Mo. App. 393, and Flannery v. Railroad, post, p. —.

IV. It is a fruitless contention against the irreversible logic of established facts to attempt to predicate a right of recovery in this case on the hypothesis that the engineer should have anticipated danger from a return of the horses to his track after they first crossed. All the facts and ‘-circumstances tended to show that the horses had become terribly alarmed at the firing of the anvils, and they ran rapidly to and over the track just as the train was leaving the station. The engineer very naturally would suppose that after the team had crossed his track going north it would pursue its course, with or without a driver. He had no reason to apprehend that the horses would perform so eccentrib a movement as to turn from their course and circle around almost immediately in his front. All that reason and common sense could exact of the engineer, under such circumstances, would be to require him to do what he could, after discovering the perilous situation, to avoid the collision, having supreme regard to the safety of his train and of the pas sengers committed to his care. Had the train been rum ning at the rate of speed prescribed by the ordinance, there is nothing in this record to warrant the inference that it was possible for the engineer to check up in time to have avoided the accident.

V. Without undertaking to review, in detail, the instructions, we will say that, in the event of a further trial, the court should instruct the jury, that, under the facts and circumstances in evidence, no negligence, contributing to this injury, is imputable to the engineer and servants of defendant in charge of the train, prior to the time they discovered the horses attempting to cross, or on, the track in front of the engine ; and, unless the jury-find from the evidence, that those in charge of the',train could, after thus discovering the horses in front of the engine, by reasonable exertion, have checked the train, having regard to the safety of the cars and passengers, .in time to have avoided the collision, they should find foi the defendant. This is the real issue in this case, and without the requisite proof of uegligeuce ou the part of the engineer, as above indicated, the court should direct a verdict for the defendant.

In view of the fact that defendant had no sort of agency in frightening the horses, in the first, instance, and sending them in the path of danger, the plaintiff should be held to make out his case against the defendant.

The judgment of the circuit court, the other judges concurring, is reversed, and the cause remanded.