7 Mo. App. 190 | Mo. Ct. App. | 1879
delivered the opinion of the court.
The demurrer to the evidence should have been sustained, as the plaintiff’s testimony showed that his own negligence directly contributed to the injury. He was upon the track when struck by the tender of the locomotive, which was backing eastward toward the Union Depot in St. Louis, to get a train, and not upon any highway or street crossing the track. The plaintiff had been for about four years accustomed to walk upon or between the railroad tracks at
In cases like the present, we start with the primary fact that the plaintiff is negligent. He was where he had no right to be, and was not the less violating the law because he was accustomed to violate it every day and was not prevented by the defendant. It is true that if the evidence shows that this negligence of the plaintiff,' though clearly, as it is, a condition without which the injury could not have existed, is by other facts more immediately surrounding the injury so far removed as to be only a remote condition, it is then, like other remote conditions, disregarded by the law. This is the foundation of the rule that where the defendant can, by the exercise of ordinary care, discover the danger and avoid the result, the fact that the plaintiff is negligent does not excuse the defendant. This implies that the physics of the case are such that the law can pronounce that the efficient or legal cause of the injury is the
In the case at bar, allowing that the defendant was negligent, yet it is clear from the plaintiff’s testimony that his negligence was an effective and operating cause up to the very moment of the injury. He was not a child, but a man in full possession of his senses. He was not caught upon the track for a moment, nor was he there through causes beyond his control. He chose to walk, not at the side, but between the rails. He knew that cars were constantly passing; knew even the peculiarities of engines and of particular tracks, in respect to noise made; knew, as he says, that “ the rails are so close together and so smooth that the engines can slip upon you before you know it.” Knowing all this, it is clear he did not take precautions adequate to the great danger he put himself in, and that his failure to do so was a direct cause of the injury. He neither saw nor heard the tender or engine. Though no bell was rung, and the locomotive was going fast, as he says, yet the inference is irresistible that he would have either seen or heard the tender, and could have stepped aside in time, if he had either looked or listened as he should have done. He says he looked at Tayon Avenue, and again when about half-way between there and where he was injured. But the view westward was open for at least a quarter of a mile; and the physical fact remains that the engine and tender backed down, and could, if the plaintiff’s evidence is true, have been seen as they were backing. The precise point where the plaintiff looked, and how carefully he looked, are open to question; but a verdict based upon his testimony that he looked in proper time, and yet did not see the tender or
The present is not within the class of cases relied upon by the plaintiff, of which the case of Frick v. Railway Company, 5 Mo. App. 435, and Isabel v. Railroad Company, 60 Mo. 475, are examples. What is said above distinguishes those cases from this. In the first case, the defendant, through the failure to exercise ordinary care, failed to see the child upon the track, when, if such care had been exercised, the child might have been seen and the injury avoided. In the Isabel case, the object was seen upon the track, and there was evidence tending to prove that by the exercise of ordinary care the engineer and fireman might have discovered that it was a child, and have stopped the train in time to save its life. These are two cases coming under the general rule laid down in Harlan v. Railway Company, 65 Mo. 25, 26. The present case belongs to that class of which Michigan, etc. Railroad Company v. Campau, 35 Mich. 468, is an example. Here, as there, it is impossible for the court to say that the recklessness of the plaintiff does not mingle with that of the defendant as a direct and efficient cause. The evidence to remove the plaintiff’s negligence and make it a remote condition, as in the two cases above cited it was removed, does not here exist. The petition did not charge, nor did the testimony show, the facts necessary to sustain the instruction given as to negligence remotely contributing on the plaintiff’s part, and prevention of the injury by the exercise of ordinary
, The judgment is reversed and the case is dismissed.