114 Mo. 384 | Mo. | 1893
I. The petition is not obnoxious to the criticism of defendant’s counsel that it fails to state a cause of action. The alleged defect consists in not stating the relation plaintiff bore the defendant. The point is without merit. The petition stated a case of negligence, for which defendant would have been liable to plaintiff whether he was a trespasser or servant of the company. It is not a model pleading but it stated the case, and is unquestionably good after verdict.
II. There was no error in the admission of the evidence of John Hoefer. He testified without objection that there were two men in charge of the portion of the train attached to the engine, the engineer and fireman. The plaintiff had a right to place all the facts before the jury. This was material, competent evidence. There is in it no suggestion that any others were necessary either in the evidence or instruction.
III. Equally untenable is the objection to Mrs. Reardon’s evidence as to plaintiff’s occupation before he was hurt, and the condition of his health. These facts were eminently proper to enable the jury to form a correct estimate of the damage, if any.
IY. The witness Shelman’s answer to the question limiting his experience to trespassers on the track in the country was improperly excluded, but the discussion has been rendered immaterial by the court’s subsequently permitting him to answer it.
Y. The testimony of plaintiff’s physicians, Drs. Dawes and Bolinger, was clearly inadmissible under the statute. Revised Statutes, 1889, sec. 8925.
YII. The court in plaintiff’s first three instructions instructed the jury that, although plaintiff had no right upon the track, yet if defendant’s servants discovered him in a dangerous and exposed condition in time to have stopped or slackened the speed of the train, in time to have averted the injury in safety to themselves by using the ordinary means and appliances for stopping the engine and train, and failed to exercise such ordinary care, defendant was liable. The criticism upon the three instructions receives its strength from attacking them in detail. Itis very true that “ordinary care” should have been defined as such care as would be ordinarily used by prudent persons performing a like service under similar circumstances, but when the court instructed the jury that when the engineer saw the plaintiff fall upon the track immediately in front of his moving engine, if he had time then to stop the engine with safety to himself and those on board the train, it was his duty to do so, it exacted nothing more than would
Nor do we think plaintiff’s third instruction is inconsistent with his first or defendant’s in requiring more than ordinary care. It is true that it uses the expression “any means,” but this phrase is coupled with the other qualifying words, “consistent with their safety and that of the engine and cars” and “failed to use the means in their power consistent with their safety and that of the train in order to stop the train.” Thus modified we do not think the instruction requires too much care in saving a human life, nor do we think it can be construed to mean that no allowance under any circumstances is to be made for the short time in which the engineer must determine his course of conduct. The engineer in this case saw the plaintiff, warned him by a danger signal; saw him fall; says he thought he was drunk, and says he himself was cool and not excited. Under such circumstances, the law did exact as ordinary prudence that he should use all means in his power consistent with his own safety and that of his train and passengers or crew to prevent killing plaintiff. This much the instruction demanded 'and no more, as we read it. The court gave an instruction for defendant correctly defining “ordinary care” and we cannot indulge the presumption that the jury ignored it, as it was in our opinion consistent with .the plaintiff’s said instructions.
The court at plaintiff’s request had in his first three and sixth instructions properly limited defendant’s liability to the negligence of its servants* after they discovered the plaintiff was in a dangerous and exposed position. In his fourth and fifth he seeks to hold defendant liable from the moment plaintiff stepped on the track. This is not the law. When plaintiff stepped on the track, it was the engineer’s duty to warn him, and this he did. The engineer had a right to presume that an adult would at once step off the track and avoid danger. He was not required to stop his train until he saw plaintiff was in a position of danger or peril. When he fell, then his position became perilous and the duty to stop the train by use of all the means consistent with the safety of himself and his train devolved upon the engineer and servants of defendant in charge of the train. The facts of this case show the necessity of making the distinction as to the getting on the track and his position after he had fallen. The use of the steam brake immediately upon his entering upon the track would unquestionably have stopped the train, but whether it would after plaintiff had fallen and it became evident he was in peril, was, at least, a debatable question, and one for the jury to find. These two instructions are inconsistent with the other three, and besides are not the law, being otherwise defective. They constitute reversible error.
IX. It only remains to note the contention of defendant that the court erred in giving any and all these instructions because inconsistent with the tenth instruction given for defendant, which exonerated defendant from all liability unless its agents or servants wilfully ran said engine upon and over plaintiff.
We do not deem it necessary to enter upon any discussion of the contention that defendant is only liable for wilful or wanton injury. The law of this state is too thoroughly well settled that the defendant is liable eyen to a trespasser, if it fail to use ordinary care to prevent injuring him, after discovering his peril.
It results, that the judgment must be reversed and the cause remanded for a new trial.