115 Mo. 283 | Mo. | 1893
This action was commenced in the circuit; court of Pettis county for damages, caused by a train of cars operated by defendants, in the' city of Moberly, striking plaintiff and seriously injuring him. The answer was a general denial and contributory negligence.
The ordinances of the city prohibited trains running over six miles an hour.
Plaintiff also introduced in evidence a plat of a portion of the M. K. & T. Railroad and the surrounding grounds in the city of Moberly, and introduced as a witness a Mr. Perris, who had made said plat, and explained the same to the following effect:
The M. K. & T. Railroad runs nearly east and west through that portion of Moberly; along the south side of the railroad is Reed street; crossing the railroad at about right angles is Bertley street running north and south. There is no other street or crossing between Bertley street and the eastern city limits. Along the south side of the railroad are several houses occupied by negroes, and some vacant lots, the easternmost house being occupied by a negro woman named Sue Roberts. Prom her lot running westerly about in a line of Reed street is a wagon road. The railroad track from Bertley street to Sue Roberts’ house is upon a fill, varying from five to twelve feet in height. East of Bertley street about one hundred and ninety feet is a bridge over a culvert or ravine, about thirty-three feet in length. Near the east end of this bridge is the point
The testimony shows that on the thirteenth of August, 1889, the plaintiff, who lived several miles out of town, had gone to the town of Moberly where the county fair was in progress; he admitted that during the day he had taken two drinks of whiskey and several drinks of beer, and had spent a good part of the day in and about the various saloons of the town, but he claimed he had not drunk anything after about one o’clock in the day and that he was not under the influence of liquor at the time of the accident. Sue Roberts, to whom he talked just before the accident, said that she did not notice that he was drunk, as did one or two other witnesses. Others stated that before and ■after the accident they could smell liquor upon his breath, and he admitted in his testimony that it was ■quite common for him to get drunk when he went to Moberly, and that he had been arrested and put in the ■calaboose several times for drunkeness, but he claimed that he did not get drunk every time he went to town.
About eight o’clock or a little later of the day in question, and after dark, he got on his brother’s mule and started to find the house of a sister who lived in Moberly, but in another part of town from that where the accident occurred. He shortly found himself in front of Sue Roberts’ house, and stopped to inquire how to find the way to his sister’s; he found the negro woman, Sue Roberts, and a negro man named William Gibson, standing at her gate, and inquired as to where his sister lived; they told him that she lived on the north side, across the railroad; then he asked the woman to give him a piece of bread, and she said she had none; he then asked for some tobacco, which she went into the house to get for him, and before she returned the work train was heard approaching from the east, and was shortly seen passing around the curve and high ground above mentioned. He was asked where he was going, and replied, “I am going over to my sister’s,” and the woman said to him, “Here comes the train; you are going to get hurt.”
There is some discrepancy between, the plaintiff and his own witnesses as to the time he started from Sue’s gate, he claiming that seeing the train he did not wait for the tobacco, but started to ride away immediately, fearing that his mule would become frightened,. The witness Gibson says that plaintiff waited until after the negro woman had given him the tobacco and he had taken a chew of it, and thanked her for it; at all events, after he had discovered the train approaching from the east, he started to ride atvay in an easterly direction, and had gone several steps when the woman told him he could not get out that way; he then stopped and turned his mule around, when he was again warned
The plaintiff claims that he was not carried over the bridge by the engine, but that both he and the mule were knocked from the place where they were standing when struck to the place where they wore afterwards found. -
There is some discrepancy in the testimony as to the rate of speed at which the train was running. The engine was a Mogul freight engine and the engineer in charge says that when he first saw the plaintiff on the track he was running fifteen or sixteen miles an hour, and that by the time he struck the plaintiff he had reduced the speed to eight miles an hour. The plaintiff’s witnesses, who were the negroes living in the houses along the track, and negro tie loaders on the train, put the speed at from thirty-five to forty-five miles per hour, arriving at their conclusions by comparison with the speed of passenger trains along the same track, which they said they understood ran about forty or forty-five miles an hour. The plaintiff rode on the track about twenty-five or thirty feet in front of the / engine. The plaintiff’s witnesses upon this point besides himself were the negro woman, Sue Roberts, and
The Roberts woman stated that when the man and mule passed upon the track the train was at the long culvert about one hundred and twenty yards east of her house, and that when the plaintiff reached the place where he was aftrwards struck the train was about opposite to her house; but again she stated that the mule did not stand longer before it was struck, than required for a man to get out of the room where she was testifying, and that when the plaintiff went on the track the train whistled at her house, and that plaintiff could not get off or pull the mule off, because the train was so close to him.
The witness William .Gibson testified that the train first whistled when about opposite. Sue’s house, or near the white telegraph pole, and that he and Sue spoke about it not whistling until it got there; that after-wards, when it was pretty near the little bridge, it whistled again giving several short blasts; that the engine was about twenty-five feet from the mule when it got on the track; they were close together, and the mule did not travel over about twenty feet before the engine struck it.
The plaintiff himself testified that he did not try to make the mule go upon the track nor to cross the track in front of the train, but that the mule went there in spite of him- and would not get off the track after it was on it; that he did not try to get off the mule because it was jumping around so. In his direct examin
Andrew Wright testified that the plaintiff went on the track twenty to twenty-five feet ahead of the-train.
The, engineer, Mr. Letsch, testified that he sounded a long whistle when about opposite Sue Roberts’ house, that was the whistle for the station; that when he first saw the mule and the man they seemed to him to enter the track from the right hand side, being the engineer’s side, and they seemed to be right over the-right 'rail, and he thought they had come on the track from that side; that when he first saw them they were about a car length ahead of him, and probably five oi~ six car lengths from the bridge, and they were about a car length from the mule when it started upon the-track, and about the same distance when the mule stopped on the track; that, immediately upon discovering the man, he gave five or six short whistles, and also applied the steam brakes, which had the effect of reducing the speed of the train; that he did not reverse the engine because he could not do so without releasing the steam brake, and to have done so was liable to make the engine slip; that the application of the brakes was more effective than to reverse the engine, and
There was no other witness testified as to the relative position of the train and the mule at the time the engineer discovered the plaintiff on the track.
The plaintiff also introduced several railroad men from other roads, who testified that such a train as the one in question running at the rate of six miles an hour over that sort of track could be stopped in from one hundred and twenty to two hundred feet after the signals to stop had been given.
The defendants introduced D. J. Temple, who testified that he had had about twenty-five years’ experience in running trains on railroads as a conductor, and had run on the M. K. & T. between Sedalia and Hannibal for sixteen years, and for ten years of that time a passenger conductor; that from his observation and experience a train of the character and at the place in question, running six miles an hour, could not be stopped inside of eight or ten car lengths before the engineer can make up his mind what to do and to begin the necessary action; by a car length he meant about thirty feet; that there is a difference in stopping when you know beforehand that the stop is to be made, and when the necessity suddenly presents itself.
There was evidence from which the jury was authorized to find that plaintiff was permanently injured. The verdict was for plaintiff for $8,500.
I. Upon the state of facts disclosed in the foregoing statement, the plaintiff sought and obtained a recovery in the circuit court “on the theory that plaintiff was injured in consequence of defendant’s negligence in running said train in the city of Moberly at the time and place averred in the petition at a high and unlaw ful rate of speed in violation of an ordinance of the city, prohibiting trains from running over six miles an hour within its limits, and that had said train been run at said time and place at the rate of speed prescribed in the ordinance, it could have been stopped after plaintiff was discovered by defendant’s servants, on the track and in peril, in time to have avoided the injury to the plaintiff.”
Plaintiff’s instructions were asked and given on this theory, and no other issue of negligence was submitted in them to the jury, though the court heard and peiunitted evidence tending to show the defendant’s engineer was guilty of negligence in not resorting to all the means in his power to stop the engine after seeing plaintiff on the track and in peril.
The defendants relied upon the contributory negligence of plaintiff and insist that, but for his reckless
The facts of this case are somewhat different from any that have come under our observation. At the point where this injury occurred the railroad consisted of an embankment, ranging from five to twelve feet high. In this embankment, east of Bertley street, was a bridge thirty-three feet in length. The record does not disclose the width of Reed street, nor whether the street was laid out before or after the railroad was constructed; but it is clear that south of this embankment or fill there is a street or traveled road on a grade eight or ten feet lower than the railroad track and about sixty feet wide. The street terminates at the east end of the block beginning at the crossing of Bertley street.
The evidence of plaintiff’s witnesses is to the effect that there is a small path leading up this railroad embankment from the street below, but that it was never traveled by horses or animals of any kind, but, to use the language of the witnesses, it was a small path up which a man walking might climb. The evidence did not tend to show that any considerable number of people were ever in the habit of crossing at this point, or if so, at what hours. Indeed, it was not seriously claimed that it was a point or place where the engineer might expect to encounter either men or animals upon the track, nor were any instructions given the jury on such a theory.
Indeed it would seem that the plaintiff assumed in the trial court that he had no right upon the tracks of the railroad at this place, and, whether the railroad was first constructed at this point after the street was graded or before, for the purposes of this discussion, its right to maintain its roadbed on this embankment .and operate its trains upon it must be conceded, and
Nor do we understand plaintiff or his counsel either as attempting to justify his conduct as a result of his volition, but, on the contrary, his action is defended solely on the ground of the well known perverseness of the mule, which he claims carried him upon the track despite his efforts to prevent it. But it is in evidence that plaintiff anticipated the mule would become frightened and stated to the witnesses, Sue Roberts and William Gibson, after he was apprised of the approach of the train, that he must hurry out of this street because he was afraid the mule would be frightened. If he anticipated he could not control the mule, prudence would have dictated that he should alight and hold the mule till the train passed, as the train would most likely pass him before he could reach Bertley street and get out of the pocket or, on the other hand, when he discovered the mule had started up the embankment upon the track in front of the rapidly approaching train, the speed of the mule must have been retarded as he climbed the embankment, and it would seem that the law of self preservation would have dictated to an ordinarily careful man to throw himself from the mule
Sue Roberts testified that the mule was struck by the engine after it got on the track ‘ ‘in the time that it would take one to step out of the room,” in which she was testifying. William Gribson, a witness for plaintiff, says plaintiff entered upon the track “not over twenty-five feet in front of the engine.” Plaintiff himself saya he “was struck in a second after he got on the track,” though he also says he thinks he got on one hundred and forty yards in advance of the train. Andrew Wright, another witness for plaintiff, testified he passed upon the track “about tioenty or twenty-fivefeet ahead of train.” The engineer says when he first saw plaintiff and the mule they were about “a car length or thirty feet ahead of him,” so there can be little doubt that he went upon the track immediately in front of a rapidly approaching train, of whose coming he was fully advised, and was struck by the train and injured.
Leaving out of question for the present any discussion of defendant’s evidence, what duty did the defendant owe the plaintiff under the case as made by himself Í
The court instructed the jury as follows:
“2. If the jury believe from the evidence that on the thirteenth day of August, 1889, locomotive engine and trains of cars were by an ordinance of the city of Moberly prohibited from being run within the corporate limits of the said city of Moberly at a greater rate of speed than six miles per hour, and that on said day defendants by their agents and servants did run a certain locomotive engine and train of cars known as the tie train within the corporate limits of said city at a greater speed than six miles per hour, and
“The court instructs the jury upon the part of the plaintiff that if they believe from the evidence, that at the time the engineer saw the plaintiff upon defendant’s' track he had .reason to believe and did believe from all the facts and circumstances in evidence that plaintiff was in great danger and peril from the approaching train and that it was his duty to stop said train in order to prevent an injury to the plaintiff, and that he, the said engineer, then and there did endeavor to stop said train by the use of all the appliances furnished him for the control of said train, and that he failed to stop his said train by reason of his running at a rate of speed greater. than six miles per hour, then the verdict must be for the plaintiff unless plaintiff was negligent after he got upon said track which contributed to cause the injury.”
The defendant demurred to the evidence and insisted that plaintiff’s contributory negligence barred him of any recovery.
The facts in this case do not admit of any question as to the engineer’s diligence in discovering plaintiff. He discovered him at once, and the instruction of the court is predicated upon the theory and assumption that, immediately after discovering him, the engineer did use every appliance within his power to save him, and only failed because the train had previously been run in excess of the rate of six miles an hour as prescribed by ordinance.
The evidence in this case is uncontradicted that plaintiff not only knew the train was coming but it sounded the signals for the crossing of Bertley street and for the station. He was aware of the approach of the train for a quarter of a mile while the engineer, in the nature of things, it being dark, was only aware of his presence for a few seconds, according to plaintiff’s own evidence. So that plaintiff rightly assumed that, unless he could recover solely on the ground that the train was running in excess of six miles an hour, and that no account should be taken of his own contributory negligence, which was the direct proximate cause of his injury, he could not recover at all.
That case was reargued on motion for rehearing, and Judge Henry (65 Mo. 22) wrote the opinion reaffirming the doctrine as announced by Judge Nap-ton. Judge Hough in a concurring opinion said: “It may be conceded that the defendant was guilty of negligence in failing to ring the bell. But the undisputed testimony in the cause sliows that the acts of the deceased directly contributing to produce his death amounted to negligence per se. * * * If there had been any testimony tending to show that the defendant could, by the exercise of proper care after discovering the danger to which the deceased was exposed, have avoided injuring him, the verdict shotdd be permitted to stand.” To the same effect are the cases of Zimmerman v. Railroad, 71 Mo. 477; Yarnall v. Railroad, 75 Mo. 583; Maher v. Railroad, 64 Mo. 267; Karle v. Railroad, 55 Mo. 476, loc. cit. 484.
In the more recent and much similar case of Guenther v. Railroad, 108 Mo. 18, Judge Thomas, with the concurrence of all this division, approved in terms an instruction in which the jury were “told that, if the deceased went upon a track in front of an approaching train which he could have seen if he had looked or listened, and he was struck because he did not look or listen, he could not recover, unless the jury believed the train could have been stopped by defendants by the ■exercise of ordinary care in time to prevent the injury
In Fiedler v. Railroad, 107 Mo. 645, we held that the facts of that case showed that the engineer saw the girl for six hundred feet, and that he sounded the alarm; that the girl gave no sign of having heard it. "We held that she was then in peril, and as a reasonable man he should have then checked his train.
In Boyd v. Railroad, 105 Mo. 371, the plaintiff’s husband stepped upon the track of a railroad running-through the town of Renick immediately in front of a train running forty miles an hour. The evidence tended to show that he both heard and saw the train. ■ Bhace, J., in writing the opinion of the court, says there were two explanations for the conduct of deceased. One was that “dominated perhaps by the first impression received in the house when he heard the whistle, that this was the regular mail (which as a hotel-keeper he was in the habit of meeting) he hastened toward the depot and onto the track without stopping for a moment to test by sense of sight or sound the correctness of his first impression, and as the result of his heedlessness lost his life.” The other view, that “he may have miscalculated his own speed and that of the train and hazarded the chance of getting across the track in safety. In either view his death was the result of his own negligence.” And says: “It must be conceded that if the defendant’s liability in this case is to he limited, as in all similar cases heretofore it has been, to want of care on the part of its servants after they discovered, or by the exercise of reasonable care might have discovered, the deceased in a perilous situation, the plaintiff’s evidence wholly failed to make out a case.” See cases cited. The learned judge concludes the case with the observation, ‘ ‘ Unless the doctrine of
It has been consistently ruled throughout in this court that plaintiff’s contributory negligence will preclude a recovery, “whether the company’s negligence also contributed directly to produce the injury or not.” Maher v. Railroad, 64 Mo. 267; Fletcher v. Railroad, 64 Mo. 484; Kelley v. Railroad, 75 Mo. 138; Zimmerman v. Railroad, 71 Mo. 476; Bell v. Railroad, 72 Mo. 50; Purl v. Railroad, 72 Mo. 168; Turner v. Railroad, 74 Mo. 602; Powell v. Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo. 86; Dlauhi v. Railroad, 105 Mo. 645.
As these instructions unquestionably base defendant’s liability solely on the previous concurring negligence of defendant’s servants in running in excess of the rate of speed fixed by ordinance, and virtually told the jury that notwithstanding they had used all the means and appliances in their power after discovering plaintiff to save him, this could not avail defendant, bu,t expressly exonerated plaintiff from all contributory negligence in going upon the track under r \eh circumstances, and confined his negligence to the time after he had gotten upon the track, they are 'erroneous, and not in harmony with the law of this state.
After a careful review of the doctrine of contributory negligence, we find no warrant in authority or in reason for making any distinction in the character of defendant’s negligence, whether it is the violation of some statutory provision or municipal ordinance, or is such by virtue of the common law. However it originates when it is consummated, it is after all simply
This attempted qualification of the rule would abolish the doctrine in most of the cases, where it has been recognized, and depends entirely upon a mere obiter dictum, so far as this court is concerned, of Judge Henry in Maher v. Railroad, 64 Mo. 276. The slightest examination of that case will show that there wore no facts in the case calling for such a statement, and it is not binding as an authority, and its apparent approval in Dunkman v. Railroad, 95 Mo. 232, was wholly foreign to the facts in that case. In both cases, the opinions of the court announce the true rule of law in such cases, which is, “that to make the defendant liable when plaintiff has also been negligent, it should appear that the proximate cause of the injury was defendant’s omission after becoming aware of plaintiff’s danger to use a proper degree of care to avoid injuring him.” It follows, that, even if the jury found every fact as required by plaintiff’s second and third instructions, the defendant was entitled to a verdict.
If it shall' appear upon another trial that plaintiff had both seen and heard the train approaching and wilfully or negligently permitted the mule to carry him on the track immediately in front of the rapidly approach ing train, -and that the engineer did, after discovering him in a perilous position, use ordinary care to prevent the injury, plaintiff cannot recover.
The defendant was entitled to the seventh instruction as prayed without amendment.
The sixth instruction should have been given, if it had been qualified, so as to require the engineer after discovering the plaintiff on the track and in a perilous position, to use ordinary care to stop its train and-avoid the injury. By “ordinary care” in such a .case is meant, that care which an ordinarily prudent person would have used under similar circumstances, having due regard to the safety of himself and those on board his train; and making due allowance for the fact that he was required to form his judgment and act instantaneously. .
The defendant was also entitled to the eighth instruction as prayed. The evidence justified it.
As the case must be reversed and remanded we are not called upon to examine at' length the alleged improper remarks of counsel for plaintiff. This division on two occasions, recently, has expressed its condemnation of the practice of counsel discussing facts