126 Mo. App. 43 | Mo. Ct. App. | 1907
Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff had judgment in the sum of five hundred and eighty-seven dollars and the case is here on defendant’s appeal. The injury occurred about eleven o’clock in the evening of January 21, 1904, at the intersection of Ninth and Walnut streets in Kansas City, a locality in the heart of the business district. Defendant, at the time, was operating a double-track line of street railway on each street, that on Ninth street being a cable road. The course of Ninth street is in an east and west direction, and from a point one block east of Walnut street to a point one block west thereof, runs down a steep hill. Walnut street runs north and south, is practically level, and to the extent of its width, forms a break in the declivity of Ninth street, at their intersection. Plaintiff, a hackman, had delivered a passenger to a hotel on Walnut street, and driving south on that thoroughfare, along the west side of its roadway ■for vehicles, approached the Ninth street crossing. The north track on the Ninth street line was used by westbound cars, and, just before his horses reached that track, plaintiff looked eastward to see if a train was approaching thereon, and discovered that such was the fact. A train, consisting of a gripcar and trailer, was coming down the hill, and was then some thirty or forty feet east of the property line on the east side of Walnnt street. It is charged in the petition and conceded in the evidence that defendant had established the custom of stopping its west-bound trains before crossing the tracks on Walnut street. Plaintiff, knowing of this custom, and having ample time in which to cross in safe
The fact that the train did not stop at its accustomed place is conceded by defendant, and an attempt is made to excuse the failure on the ground that under the peculiar conditions then prevailing, it was impossible for the gripma.n to make the stop, though he employed every possible means at his command to that end. It was shown that both cars composing the train were greatly overcrowded with passengers, and that the rails were encrusted with ice from sleet and rain which had been falling so that the brakes failed to bring it to a standstill as they would have done under ordinary conditions. After pleading the custom of defendant to stop its trains on the east side of Walnut street, and plaintiff’s reliance on that custom, the specific negligence of defendant alleged in the petition is as follows:
“Defendant, although it saw or by the exercise of due care ought to have seen plaintiff in a position of peril in time to have stopped its train, without any warning to the plaintiff, by reason of its negligence in the employment and retention of careless and incompetent employees engaged in the construction, maintenance and operation of its line of said railway, and its equipment, its tracks and its trains and cars running thereon, and by reason of the negligence of .defendant in the construction, maintenance and operation of its said line of street railway, its equipment, its tracks, and its trains and cars running thereon, negligently failed*47 to stop one of its said west-bound trains at tbe east line of Walnut street, and negligently failed to stop said train at all until it had negligently been permitted or caused to run across Walnut street to the west side thereof, and to come into collision with the plaintiff’s hack and horses;” etc.
Plaintiff failed to introduce any evidence tending to show any defect in the track, cars or appliances used, or to show that the usual signals were not given as the train approached the crossing’, but did adduce substantial evidence tending to show that the gripman was a raw hand, inexperienced and incompetent, and that he started the train down the hill in a negligent manner, and, in the descent, negligently handled the appliances provided for its control. It appears that on account of the steepness of the hill, the gripman was required to come to a stop before beginning the descent, and not to start until the conductor signalled him so to do, and it was the conductor’s duty not to give the signal until he was at the hand brakes on the trailer prepared to use them, if necessary. Owing to the extremely crowded condition of the train, the conductor, when it was brought to a stop at the top of the hill, had difficulty in reaching his position, and the gripman started the car without signal, and had acquired some speed before he reached the handbrake. Further, it was shown that the gripman had detached his hold from the cable and set the brakes under his control in such a manner that they locked the wheels, causing them to slide on the rails, and that, had the brakes been set with less rigor, such coasting would have been avoided and the train could have been brought to a standstill at the accustomed place, notwithstanding the heavy load it carried. It is insisted by defendant that the learned trial judge erred in refusing to give an instruction in the nature of a demurrer to the evidence which it requested at the conclusion of the evidence.
This argument, instead of excusing the conduct of defendant, accuses it of negligence. Defendant, and its. servants in charge of the train, must be presumed to have known the extent of the load they could carry in safety down that hill in the existing weather conditions. The fact that passengers crowded into the cars
But, it is argued by defendant that specific acts-of negligence are charged in the petition, and plaintiff failed to show that the injury resulted from any of them. It must be conceded that “when the plaintiff chooses to allege in his petition the specific acts of negligence of which he complains, he assumes the burden of proving them, and, as in other cases must recover, if at all, upon the negligence pleaded.” [Hamilton v. Railroad, 114 Mo. App. 504; Orcutt v. Century Bldg. Co., 201 Mo. 424; 99 S. W. 1062.]
Turning to the petition, we find the averments relating to negligence in the operation of the train to be of the must general character. “And by reason of the negligence of defendant in the . . . operation of its said line of street railway, its equipment . . . and its trains and cars running thereon, negligently failed to
It is the duty of a traveler on a public street, in approaching a railway crossing, to make a reasonable use of his senses of sight and hearing, before entering into the sphere of danger, to ascertain whether the safety of his passage over the crossing is threatened by approaching cars, and to act with reasonable care to avoid an encounter with present danger. This duty continues from the time the traveler approaches danger until he passes beyond its range. In the exercise of reasonable care, he cannot give a last look just before reaching the danger line and then, relying on the presumption that the operators of an approaching train are in the exer
The views expressed necessitate the holding that the learned trial judge committed no error in overruling the demurrer to the evidence.
Defendant objects to the first instruction given by the court on behalf of plaintiff. It is as follows: “If you believe from the evidence that at the time plaintiff claims to have been injured it was the custom of the defendant to stop all of its westbound Ninth street cable trains at the east side of Walnut street, and that cu this occasion one of its trains failed to stop at that point, but ran on and collided with plaintiff and thereby injured him, and that such failure to stop said train wnc
An instruction which, on an assumed hypothesis, directs a verdict for the plaintiff, to be free from criticism, should contain all of the ingredients essential to the right to a recovery under the pleadings and evidence. [Budd v. Hoffheimer, 52 Mo. 297; Boothe v. Loy, 83 Mo. App. 601; Hohstadt v. Daggs, 50 Mo. App. 240; State v. Davies, 80 Mo. App. 239; Blashfield on Instructions, section 391.] Plaintiff in the instruction before us predicates his right to recover on defendant’s negligent breach of a custom. He claims, and the fact is conceded by defendant, that the practice of stopping trains at the east line of Walnut street had continued for so long, and was so unvarying and notorious that the railway company on the one hand and the traveling public on the other, were presumed to know of its existence, to rely on its continuance, and to govern their actions accordingly. A practice not uniform, and which has not been of sufficient duration nor performed under circumstances to make it a matter of general notoriety, does not arise to the dignity of a custom, and until it attains that dignity, it cannot afford, in law, a rule of conduct. The facts before us show the existence of a custom under this definition, but it does not follow, because plaintiff was injured in consequence of defendant’s negligent breach thereof, he is entitled to recover. He must plead and prove that he knew of the existence of the custom, relied on its observance by the defendant in the particular instance, and under the circumstances open to the observation of an ordinarily careful and prudent person in his situation, was justified in acting on the supposition that the train would make its usual
This error being prejudicial, the judgment must be reversed, and the cause remanded.