211 Mo. 1 | Mo. | 1908
— Plaintiff for a short while, seven months, was the widow of one S. J. E. Turner, who was killed by one of the defendant’s engines. After the institution of this suit, but prior to the trial, she married one King. She had judgment below for the statutory penalty of $5,000, and defendant appealed. The death of said Turner occurred within the corporate limits of Pattonsburg,-Missouri. Plaintiff pleads that there was, at the point where the accident occurred, a continuous user of defendant’s right of way and tracks by pedestrians, of which said user the defendant had full knowledge, and this the evidence tended to prove. The petition further pleads an ordinance of the city to this effect:
“Sec. 1. It shall-not be lawful, within the limits of the city of Elm Elat, for any car, cars or locomotives propelled by steam power, to run at a rate of speed exceeding six miles per hour.
“Sec. 2. It shall not be lawful, within the limits
It was shown that the city of Elm Flat by proper steps became Pattonsburg. It was claimed that deceased met his death by a backing engine which was run at a rate of speed in excess of the speed limit, and said train was run without ringing the bell and without being manned as required by the ordinance and without having a man stationed on the car “fartherest from the engine to give danger signals.” The accident occurred about three o’clock in the afternoon. Deceased, who lived north and east'of the city, was coming to town to make some purchases, among other things, some coal oil. For this oil he had a half gallon bottle which he was carrying in his hand. 'We mention this now, for it becomes material later. In Pattonsburg, the main track of defendant’s railway runs east and west. There were two side or switch tracks, one to the north and one to the south of this main track and parallel therewith. The train in question had arrived from the west. On the north switch track were the stock yards or stock pens. The switch stand or connection of this south switch track with the main track was some five hundred feet east of
“Q. When he walked across the track and gave
“Q. He was coming across? A. He was coming across to get on the north side of the railroad, just, as fast as he could walk.
“Q. And.they passed one another pretty close together? A. Yes, sir; the man that turned the switch went behind Mr. Turner, and he just come on and got across.
“Q. Did you see Mr. Turner before he started across the track? A. No, he walked down, was going towards town and seen the train was going to start out pretty soon and he came across over here on the north side.
“Q. You did not answer my question, you did not understand me; I want to get the point that Mr. Turner was when you first saw him? A. He was right over, opposite of the engine, coming on, as I tell you.
“Q. He come right by that engine? A. Yes,, sir; when it was standing still.
■' ‘ Q. And he come up there and he an<i tire brakeman met one another about the time the engineer or the brakeman gave the signal to the engineer? A. Yes, sir.
“Q. Mr. Turner was across the track? A. Yes, sir.
“Q. West of this switch post? A. Five or six steps.
“Q. And at that point the engine was moving back, the tender? A. Yes, sir.
“Q. And what part now struck him? A. I did not see anything strike him at all, only it just looked like he was kind of daunted or something and started to fall, and this big wheel catched him, as I say, right across his bowels, turned him heels over head, till it
“Q. Yon know this drive rod between the big wheels? A. Yes, sir.
“Q. Was it that that seemed to get hold of him? A. It was the one right in the middle of the big wheel.
££Q. His body was on the outside of the big wheel while it was turning over? A. Yes, sir.
‘ Q. And the tender had passed clear by him? A.. Yes, sir.
££ Q. At the time you saw this wheel catch hold of him? A. Yes, sir; the tender had passed him.
££Q. The tender had passed clear by him? A. Yes, sir.
£ £ Q. Did you notice how many of those big wheels there was on the engine? A. I don’t hardly recollect.
££Q. Was there two or three? A. I don’t recollect, I believe two.
££Q. Was it the one next to the tender or the one back of that that had a hold of him? A. The one that was next to the tender.
££Q. You said something about his having a bottle on his arm? A. Yes, sir.
“Q. Which arm was that bottle on? A. He had it in this hand.
££Q. In his left hand? A. Yes, sir.
££ Q. And he was going west ? A. And I think he had the rope round his wrist.
££ Q. You think the rope was round his wrist? A. Yes, sir.
££Q. Don’t you think that drive rod or that wheel caught that bottle, as he was walking along and that is what turned him round? A. Yes, sir; I think that is kind of what daunted him, and catched him.
££Q. You think that also caught that bottle and rope round his hand? A. Yes, sir.
“Q. That is your idea of how the accident happened? A. Yes, sir.”
Powell Royston, another witness, among’ other things said:
“ Q. Mr. Royston, this accident, resulting in the death of Mr. Turner, state what you know and saw of that? A. Well, on the 17th of August last, about three o’clock it was, I believe, I seen Mr. Turner coming down the railroad track from the east; first saw him close to the car house, where the section men put their tools and the like; at this time there was a train in on the main track, and Mr. Turner was coming down west, and the engine had got loose from the train, and coming up. on the main line and back on the side track with a. car of stock. Mr. Turner was walking along when I first saw him, on the south side of the road, as. well as I could diseern it; I was laying in a hammock across from the railroad, and just as the engine went past, it seemed like he come across on the north side of the road, just opposite the other side, of where the switch was open, as well as I could tell, and he was walking along there, and the brakeman opened the switch, and the engine come along back, and Mr. Turner was walking west on the north side of the track, and seemed like when the engine run about the length of two rails, probably more, seemed like Mr. Turner made a step kind of over towards the track, or stumbled over or kind of stepped over, as he stepped over seemed like the tender catched him and knocked him down; that was about one rail west of the high switch; and it land of picked him up, it seemed like, and dragged him along; there was blood about six foot from the east rail, on the rail; it dragged him along till it got all the length of two rails; and his foot sunk down into the guard rail, and it catched there; he laid
“Q. Did yon see anything ahont a bottle there? A. Yes, sir, he had a glass bottle, carrying along with him; that bottle was broke where the first blood was put on the rail.
In opposition to this testimony Leslie Pell, a witness, said:
“Q. Going east? .A. Well, I was not going when the train hit him, I was standing still when the train hit him, watching the train.
“Q. Standing still watching the train when it hit him? A. Yes, sir.
“Q. And yon did not see it hit him? A. No, sir.
“Q. How far was yon standing from the track? A. I was standing right against the track.
“Q. Right against the track? A. . Yes, sir.
“Q. On the north side? A. ' Yes, sir.
“Q. And looking right at the train? A. Yes, sir.
“By the Court: Do yon mean- the train or engine? A. The engine.
“Q. Looking right at it? A. Yes, sir.
“Q. And never saw it hit him? A. No, sir.
“Q. Had yon seen him at all? A. Yes, sir.
“Q. Where? A. Walking down the track towards the town.
“Q. Walking down the track towards the town? A. Yes, sir.
“Q. And still yon never saw the engine hit him? A. No, sir.
“Q. Whereabouts did he cross the track? A. He did not cross it, he was walking down the track.
“Q. Whereabouts was he walking down the
The brakeman testified among other things, as follows :
“Q. And from the time Mr. Turner crossed' the track, where he went you don’t know? A. No.
“Q. You never saw him, nor did you look for him any more, till they stopped you and you learned he had been run over and killed. A. I did not.
“Q. Where was his body run over; at what part of his body? A. The left part, the left leg and the main part of his trunk; left side and left arm was-severed.
“Q. Did you look to see where the blood was;; was it on the wheels of your tender? A. Yes, sir.
“Q. Where was it; which wheel? A. On the tank wheels; the two rear tank wheels, on the north-side of the tank.
Q. It was on the first luheel going loest? A. Yes,, sir. .
“Q. That is where the blood was? A. The north side of the tank.
“Q. And on the first wheels of the tank going-west? A. Yes, sir.
“Q. That is what had run over his body? A. I suppose it was.
“Q. You could se'e the blood along there? A. Yes, sir.
“Q. And you did observe it both on the track and this wheel? A. I did not look at the track; I looked at the engine.
“Q. And there it was on the tender and wheels? A. On the tender and wheels; yes, sir. ’ ’
There was also some evidence of a part of this broken coal oil bottle being found between the rails of the track. Complaint is made by the defendant as to certain evidence admitted over its protest, as well
I. The defendant complains of the action of the trial court in refusing to give its instructions numbered 3 and 4. These instructions read:
“3. The court instructs the jury that if they believe from the evidence that the deceased, Turner, was walking north of the north side track, and that the tender had passed him, and that as the engine was passing him he moved closer to the engine and was thereby struck by the wheels of the engine and was killed, then his death was due to his own carelessness and the plaintiff, Mrs. Cora King, is not entitled to recover in this action and your verdict must be for the defendant.
“4. The jury are instructed that if they believe from the evidence that the deceased was walking north of the north side track and as the tender approached near him he stepped in front of the tender and was immediately struck by it and killed, then his death was due to his own negligence and the plaintiff, Mrs. King, is not entitled to recover in this case, and you will find a verdict for the defendant.”
To our mind this complaint is a just one. If the deceased was in a place of safety, and placed himself, by inadvertence or otherwise, immediately in front of a moving train or engine, and was thereby injured, the defendant is not liable. In other words, if the conduct of deceased, in a place of safety, was such that he put himself so suddenly in a place of danger, that the accident could not have been avoided, even if the defendant had complied with the ordinance in the strictest terms, then the plaintiff cannot recover on the bald proposition that the defendant had not complied
The testimony of the two eyewitnesses would’ fully authorize these two instructions. The fact that there might have been countervailing testimony does not destroy the right of the defendant to have the theory of the ease, as shown by this testimony, properly submitted to the jury. Whilst the violation of a city ordinance is denominated negligence per se, and if no other facts appear to show that the injury was occasioned otherwise than by such negligence, a plaintiff would be entitled to recover, yet where the evidence of the eye-witnesses tends to show that the violation of the ordinance was not the proximate cause of the injury, then a different proposition is presented. Because an ordinance has been violated does not authorize a recovery, where a person was injured by acts of his own, which, if known, could not have been prevented by the defendant, had it complied with the ordinance. Under the testimony of these two witnesses had there been a dozen men on this tender to warn plaintiff, there would have been no interim in which to make such warning effective. Under their testimony the transit from a place of safety to a place of danger was accomplished by a single step — the act of a moment. This act was that of the deceased. He being in a place of safety, to the north of the track, even if the servants of defendant had been placed as the ordinance required, they would not have been required to give warning until he put himself in a place of danger, and there would have been no negligence
II. Complaints are urged against the several instructions given for plaintiff. In SO' far as these instructions overlook and fail to recognize the doctrines’ hereinabove announced they are in error. Specific mention of each of them would be superfluous. And in so far as they utterly ignore the question of contributory negligence, if they do so ignore it, they are in error. The humanitarian doctrine, recognized by this court, .as elsewhere, contemplates that contributory negligence is no bar to an action where the party injured is found in a place of danger, or by the exercise of ordinary care could have been found in a place of danger, in time to have prevented the accident and injury by the use of ordinary care. But where the facts of the ease do not bring it within that rule, the doctrine of contributory negligence is not further disturbed. What we have said in the preceding paragraph will enable the plaintiff to properly redraft her instructions.
III. It is urged, and with much force, that a demurrer to the testimony should have been sustained.
IV. "We are not impressed; with the objection urged as to the testimony of the witnesses as to the rate of speed the engine was being run. It is true that the witnesses did not see the engine at the time and place of the accident, but saw it at a point further west upon the same trip. This alone would have been insufficient. But the testimony of the brakeman was to the effect that it had the same rate of speed throughout the trip from the switch stand to the stock yards, which taken with the other testimony renders the latter competent. The two must be and were no doubt considered together. We say this much in view of the fact that the case must be retried.
For the reason aforesaid this cause is reversed and remanded to be tried in accordance with the views herein expressed.