75 Mo. 138 | Mo. | 1881
This action was commenced in the special law and equity court of Jackson county, and removed by change of venue to the circuit court of said county. The plaintiff claimed, and recovered damages for an injury sustained by him in being run against by a locomotive of defendant, at a point where defendant’s stock-yard track, in Tenth street, crosses Mulberry street, in Kansas City. Erom the judgment he obtained, defendant has appealed.
Erom the evidence for plaintiff, it appears that he was struck in the square formed by a street-car track which crosses the Hannibal track, in question; that he stepped upon the track without looking or listening for an approaching train. There were four railroad tracks in Tenth street, occupying most of the street, of which the defendant’s stock-yard track was the southern. The plaintiff was crossing Tenth street from the south, and had passed over defendant’s track. A train was coming in on the Kansas Pacific track, from the west, but the locomotive •which ran against plaintiff, coming in the same direction passed it and reached the Mulberry street crossing where the accident occurred, first. The whistle on this locomotive was not blown, nor the hell rung, and the speed at which it approached the crossing was about ten or twelve miles an hour. Plaintiff’s granddaughter testified for him that she witnessed the tragedy, and that she saw him got upon the track; that she “first noticed him near Mulberry street; he had crossed the block, and was going along near Tenth street. Bid not see him stop at all.- The engine was very close to him when he stepped up, arid by the time he got there, (indicating the center of the square formed by rails of a street-car track crossing the defendant’s stockyard track in question,) the engine caught him. The engine was not far back when he stepped up; couldn’t say how far, but it was quite near.” Another witness for plaintiff testified, that he witnessed the accident; that the servants of defendant on the locomotive were not in their
That the plaintiff was guilty of such negligence as precludes his recovery, is manifest, unless defendant’s negligence, after he was, or might have been, discovered on the track by the defendant’s servants, in charge of -the locomotive, was such as to render the company liable, without regard to his own negligence. From the evidence, it appears that he was instantly struck after he got upon the track. This is the testimony of his granddaughter. The other witness, who signaled the locomotive, says he saw the man, and that he was struck in a secuod after. He
This error would lead to a reversal of the judgment, if, on cross-examination of defendant’s witnesses the testimony, which plaintiff failed to introduce, had not been supplied. The engineer on the locomotive in question testified,- that it could have been stopped in eight or ten feet. If running at twelve miles an hour, it would be at the rate of about sixteen feet per second. If the engineer and fireman had been at their places, and keeping such lookout as was their duty, in running through a populous city and approaching a public crossing, on one of its thoroughfares, the evidence tends to show that they would have seen the plaintiff', as he stepped upori the track, and could have
The objection urged to the other instructions, except three, four, six and seven, is, that there was no evidence in the case tending to provó, that after plaintiff got upon the track, there was an intervening period of time between that and the collision, within which defendant’s servants, in charge of the locomotive, could have discovered him on the track and stopped the locomotive before it struck him. This is answered by what is before said in relation to the demurrer to the evidence.
The third given for plaintiff is erroneous. It allowed
The fourth declared “ that' while plaintiff, in crossing the railway of defendant, was bound to use care, etc., and under ordinary circumstances was bound to use his ears, and eyes, yet, if plaintiff, while carefully watching, and keeping out of the way of, the Kansas Pacific train, stepped back upon the track of defendant, and was run against by defendant’s engine, which was backing at a greater rate of speed than six miles per hour, and upon which no bell was ringing, then you can take these matters into consideration in determining whether or not plaintiff did use the care and caution to avoid danger he ought to have done, under the circumstances.” The objection urged is, that there was no evidence to support the instruction. Counsel, in making the objection, have certainly overlooked the testimony of the engineer. It was .as follows: “Kelley told me when he got up, he was stopping there, saw the Kansas Pacific train, and that he heard my bell and was whiting for Kansas Pacific train to pass. , My bell was ringing, and hearing it he stepped back on'it",” (the track). "We think the evidence warranted the instruction. "We do not pass upon the weight of the testimony on any issue of fact, but only on its tendency. This instruction has, however, a vice which the seventh, hereafter to be considered, contains.
We also think that the seventh instruction for plaintiff was not applicable to the case, made by the evidence. It would be applicable in a case where the negligence of the defendant had placed the plaintiff in a situation of danger, but not when he has voluntarily and unnecessarily placed himself in this peril. If he stopped for the Kansas Pacific train to pass, there was a place of safety for him in the space between the tracks. He had no occasion to get upon the defendant’s track. There was nothing in the approach of the Kansas Pacific train to frighten him. It was running slowly, and plaintiff had been in the habit of passing over the crossing, and knew that it was not unusual for trains to pass there. Neither his hearing, vision nor intellect was impaired by old. age or other infirmity. If he had exercised ordinary prudence under the circumstances in which he was placed, the accident would not have occurred ; but, as before stated, the failure to exercise such prudence will not prevent his recovery, if the servants of the defendant saw him, or might have' seen him on the
Eor the errors above noticed, the judgment will be reversed and the cause remanded.