101 Mo. 67 | Mo. | 1890
Action for damages for personal injuries ; verdict and judgment for plaintiff for five thousand dollars. Defendant appeals.
The petition charged negligence in defendant’s employes in managing and operating the train, which caused, the injury, specifying failure to ring the bell and running at a greater rate of speed than six miles an hour, in violation of city ordinance. On the first act of alleged negligence no evidence was given. The answer was general denial, and a plea of contributory negligence.
The accident happened in the city of St. Louis on the levee between Christy avenue and Morgan streets. The evidence for the plaintiff tended to prove that the plaintiff was a rag peddler; that in the course ■ of his business he was pursuing his way in a one-horse wagon along the levee in the city of St. Louis, which lies in a general direction north and south, and on which the defendant's track was laid, and on which it was operating its train. He was going north on the levee ; near the corner of Christy avenue and the levee, he found the space on each side of the track for a distance of about fifty feet occupied by wagons, leaving an open way between them occupied by defendant’s track as the only way for him to pursue his journey unobstructed. He entered this gang-way between the wagons, drove along it, the east wheels of his wagon on the inside of the west rail of the track, and his west wheels on the outside, a distance of about forty or fifty feet when the hind wheel of his wagon_ was struck by the defendant’s engine drawing a train of freight cars going north on its track, and the plaintiff was thrown out of his wagon, onto the west rail of the track in front of or under the engine, which passed over him crushing his left arm and elbow so that his arm had to be amputated, bruising one of his legs, inflicting a cut over one of his eyes, and several
The defendant to sustain the issues on its part introduced the evidence of the employes engaged upon the train, the leading witness of whom, 'John A. Cook, testified as follows: “I was a switchman and brakeman on the Missouri Pacific railway on the ninth day of July last; remember of an accident occurring on the afternoon of that day between 4: 30 and 5:30 o’clock, on the levee between Morgan street and Christy avenue ; I was on the rear end of the rear car of a train going north on the levee at that time and place ; I saw a one-horse wagon with three persons in it standing near the curb-stone; as the train was passing it, the horses began to back and backed the wagon up against the last or next to the last car of the train ; I was on the top of the rear box car at the time, about thirty feet from the wagon and looking at it; I did not know whether plaintiff was in the wagon or not; I did not know him at that time; when we came back I went in to see how seriously he was injured, but could not learn anything from him as he couldn’t talk and would not tell us anything; the wagon did not tilt up, the rear wheels backed into the car and the horses started up again; don’t know
Tatley, the brakeman, testified, that he was standing on the front of the engine from the time it left Poplar street and did not notice any team on the track as the engine passed along between Christy avenue and Morgan street; that he was in a position to see one, if there had been one on the track and that the train was running between four and six miles an hour ; that he saw the plaintiff’s wagon on the west side as he passed.
The fireman and engineer also testified that they were at their posts, observing the track and they did not see plaintiff’s wagon on the track, and that it was not struck by the engine.
On cross-examination, the engineer, Lunderberg,. testified that he “saw no obstruction between Christy avenue and Morgan street as we went north on the levee; saw none from the bridge to Biddle street. The way was perfectly clear, and if Kellny had been on the track I would have seen him.”
The evidence of Donderville, the fireman, was to the same general purport as the others. In addition he testified that the train was loaded with ice and beer, and upon this grade could be stopped to prevent an accident when going át the rate of four or five miles an hour within sixty feet, and going at the rate of fifteen miles an hour “within five carlengths or less, say eighty feet.”
It seem to' be undisputed that the distance from the bridge to the place of the accident was about four hundred and fifty feet. That there was nothing to prevent the defendant’s employes from seeing the plaintiff’s wagon on the track (if it was on the track) during
Upon this state of facts the court upon its own motion gave the following instructions on the main question:
“1. Under the pleadings and evidence in this case the court instructs you that, at and just before the alleged injury, the plaintiff was not exercising ordinary or proper care to avoid injury or danger ; and, therefore, your verdict should be for ‘the defendant, unless you further find the facts to be as mentioned' in instruction two.
“2. If you find from the evidence that in the early part of July, 1886, the plaintiff’s wagon was struck by an engine of a train operated at the time by defendant on the levee between Christy avenue and Morgan street; that in consequence thereof plaintiff was run over by said engine and injured ; that said wagon was so struck by reason of the fact that said train was then running at a rate of speed greater than six miles an hour, and that if said train had not been running at a rate greater than six miles an hour, the train could have been stopped in time to have averted the said collision with plaintiff’s wagon, after defendant’s employes in charge of said train had discovered (or by the exercise of ordinary care could have discovered) that plaintiff or his wagon was in danger of being so struck ; and. if you so find the facts to be, your verdict should be for the plaintiff.”
The second was the only instruction given presenting a theory upon which the jury were authorized to find for the plaintiff and it seems to us that it cuts the throat of the first. In the first the jury are told as matter of law that the plaintiff was guilty of an act of negligence that contributed to his injury, therefore he cannot recover ; nevertheless they were told in the second, that if they find that the defendant committed an
The whole theory of plaintiff’s case was that he was injured by the negligence of defendant in running its train at a greater rate of speed than six miles an hour; that this act-was the sole direct cause of his injury ; now; while to find the fact that, if the defendant had not been running its train at a greater rate of speed than six miles an hour, the injury would not have occurred, is to 'find a fact tending to prove that the running of the train at a greater rate of speed than six miles an hour was a cause of plaintiff’s injury, how can it make such excessive running any more than a contributory cause, when plaintiff’s act was also there and then present at the same time contributing to the injury? The instruction presents this strange anomaly that, if the jury find that the wagon was struck by reason of the fact that said train was then running at a rate of speed greater than six miles an hour, and by reason of the fact that the plaintiff was negligently on the track, the plaintiff cannot recover, on the ground that defendant’s negligence was the sole cause of the .injury, because of plaintiff’s contributory negligence, but, if they find that if the train had not been running at a greater rate of speed than six miles an hour the plaintiff wouldn’t have been struck, then the plaintiff can recover, although the injury was the joint product of plaintiff’s act of negligence and this very negligent act of defendant. How can the fact that the injury would not have resulted if the defendant had not committed the act of negligence change the character of the injury which actually did occur as the joint product of plaintiff’s and defendant’s contributive acts of negligence as assumed in the instructions ?
We know of but one exception to the rule that where an injury is the product of the joint concurring
In this case it is contended by counsel for the defendant that conceding plaintiff ’ s .theory of the facts to be true, that the evidence tends to show that defendant’ s employes if they had been in the exercise of ordinary care could have discovered the plaintiff ’ s wagon on the track in time to have prevented the accident, and that it could have been prevented, if they with promptness after such discovery had used the means at their command to stop the train; therefore the sole cause of the injury was the negligence of the defendant in failing to discover the perilous situation of the plaintiff, and thereafter failing to use the means at their command to prevent the injury, and as the plaintiff’s
But, on the facts in the case, could the court, as a matter of law, declare that the plaintiff was guilty of such contributory negligence as to prevent his recovery ? The plaintiff was no trespasser ; he was where he had a right to be, as much right as the defendant; he was pursuing his way along one of the most crowded public streets of the city, along which defendant’s track was laid ; he came to a point in the street where it was blocked by wagons for a short distance on both sides. The only way open to him was the space occupied by the defendant’s track, and a narrow margin between the wagons and the track; in order to get over this space to the open street beyond, a distance, say, about fifty feet, he turns his team a little to the right, which causes the right wheels to pass within one rail of the track a short distance, and in less time, probably, than a minute, he reaches the open street again, turns to the left, his fore wheel passes out over the rail, the hind wheel is caught by the engine before it gets entirely clear of the pass-way of the.train, is “tilted up” and he is thrown under the wheels, the train running, at the time, at the rate of fifteen miles an hour. This was the case the plaintiff’s evidence tended to make. If it be true that the
When can one be said to be guilty of negligence that will per se prevent a recovery because he does not look behind him for a train approaching him from the rear before turning upon a railroad track along a public street, on which he has a perfect right to travel ? And whose duty is it simply to make way for such train? We should say, when by so looking, he would have discovered that the train was approaching him at such a distance that probably he could not-, if he got upon the track, move out of its way in time for it to pass him without striking him. He would be guilty of negligence if, upon looking, he had discovered that the train was so near that, at the rate of speed he might expect it was traveling, it would be hazardous for him to turn upon the track, and he is negligent in not looking only because by looking he would have discovered that, taking into consideration the speed he was traveling at, the distance he had to go on the track, the distance he was from the train, the rate of speed he had a right to believe the train was traveling, it would appear to a reasonably prudent man to be dangerous for him to drive on the track.
These are all questions of fact to be passed upon by the jury in the light of the established law, “that the violation of municipal ordinances which regulate the speed of trains is negligence per se, and that every person on a public street in a municipality has a right to presume that the railroad will obey such ordinances. Schlereth v. Railroad, 96 Mo. 509 ; Eswin v. Railroad, 96 Mo. 290.
Paraphrasing the language of this court in the last case, it may be said that the imposition is monstrous that, because a man does not “look,” although that is not the proximate cause of the injury, he is placed beyond the pale of legal protection. He can be placed beyond the pale of such protection, not simply because he did not look, but because if he had looked he would have discovered such a condition of affairs as that it would have been imprudent for him to pursue the course which he did pursue, and in which he met with the injury. If, by looking, he would not 'have discovered such a state of affairs, his failure to look cannot be the proximate cause of his injury.
This was evidently a difficult case to try; the plaintiff and his witnesses were Poles, some of whom could
For error in the instructions quoted, the judgment will be reversed, and the cause remanded for a new trial,