Maxey v. Missouri Pacific Railway Co.

113 Mo. 1 | Mo. | 1892

Shebwoox), P. J.

The refusal of this instruction presents the salient feature of this case, the facts of which, as already seen, stand out conspicuously on the record.

There can be no doubt that plaintiff was approaching the north of “switch track” without looking or listening, or giving any heed to his dangerous surroundings. This plainly appears from the testimony of Sparks, the only witness who distinctly saw the plaintiff “just the.last step he took,’1'1 when only “three or four feet from the track,” and “the tender right at him, about ten or fifteen feet from him.” This testimony of Sparks is not at variance with that of any other witness, nor even that of plaintiff himself. In fact it is confirmed to a certain extent by the testimony of plaintiff and other witnesses.

It is clear beyond question that plaintiff’s injuries are due to his lack of obedience to the most ordina "•/ teachings of prudence. When he arrived at the pohd of danger, he neither looked nor listened; but, absorbed apparently by his own meditations, he pursued his southwest course oblivious to danger and u;h conscious of peril. If the facts related do not constitute a clear case of contributory negligence, then it would be a vain and fruitless endeavor to search the bo<Ws for one.

Counsel for defendant nave insb.n •.ort many cases from our own reports, where, in siminar circimstances, a party plaintiff has been denied reco~ • cry, to-wit: Boyd v. Railroad, 105 Mo. 371; Yancey v. Railroad, 93 Mo. 433; Taylor v. Railroad, 86 Mo 457, Powell v. Railrocd, 76 Mo. 80; Turner v. Railroad, Tl Mo. 602; Henze v.. Railroad, 71 Mo. 636; Zimmermy, t, v. Railroad, 71 Mo. 476. See also Railroad v. Ho-¡ton, 95 U. S. 697; Austin v. Railroad, 91 Ill. 35. Em in none of them has there been exhibited on the parí v a plaintiff a plainer case than the present one oí negligence directly contributing its product of injury. To state such a case as this is to decide it; the facts speak for themselves and against any recovery ’by plaintiff.

II. Directly conducing to tne result reached by the jury was the instruction given at the instance of the plaintiff, to the effect, that, if they found that plaintiff was attempting to cross defendant’s track at a place where footmen were, and for a long time prior thereto had been accustomed to cross said track, and that as the plaintiff stepped upon said trade he was struck by an engine which was being carelessly and negligently run upon said track at a fast and unusual rate of speed, and without ringing the bell or sounding the whistle, they should find for the plaintiff. This instruction is erroneous because it lays down the law as if the crossing in question had been a public one, when the law is that it is only where the crossing is public that any signals need be given, because it is diametrically opposed to the authorities already cited in the first paragraph of this opinion. The judgement should be reversed,’ .and, as it is apparent that plaintiff ■ has no cause of action, the cause should not be remanded.

All concur.