Reed v. St. Louis, Iron Mountain & Southern Railway Co.

107 Mo. App. 238 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts'.) — 1. The introduction of the city ordinance was objected to by defendant. The ordinance was a police regulation binding upon defendant and its non-observance by. it was evidence of negligence. Hutchinson v. Railway, 161 Mo. 246; Weller v. Railway, 164 Mo. 180; Gebhardt v. St. Louis Transit Company, 97 Mo. App. 373; Riska v. Railroad, 79 S. W. 445.

2. The demurrer to the evidence raises two questions of law to be disposed of. First, was plaintiff’s evidence sufficient to warrant the jury to find that defendant was guilty of negligence? Second, if it was, does plaintiff’s evidence convict him of such contributory negligence as to preclude his right of recovery? The evidence shows that it was not the purpose of defendant’s servants to back the nine cars over the street crossing where plaintiff was standing, yet as a matter of fact they did back over the crossing, and the evidence shows also that from the near proximity of the cars to the crossing and the ordinary movement of such cars when an engine is backed up for the purpose of coupling onto them, these servants should have anticipated that the cars would probably pass on over the crossing, and it was their duty to observe the requirements of the city ordinance by sounding the bell as the engine backed up to make the coupling. Plaintiff’s evidence shows that this was not done; if not, such non-observance of the ordinance was negligence per se. Jackson v. Railway, 157 Mo. 621; Hutchinson v. Railway, supra; Edwards v. Railway, 94 Mo. 36; Mercer v. Railway, 44 S. W. 750; Railway v. Taff, 74 S. W. 89; Railroad v. Baker, 106 Ill. App. 500. Independent of the ordinance, if, as the evidence shows, the railroad tracks crossed a public street in a city built up on both sides of the railroad, it was negligence to back ears over the crossing without either ringing the bell or sounding the whistle. Section 1102, Revised Statutes 1899; VanNote v. Railroad, 70 Mo. 641; Alexander v. Railroad, 76 Mo. 494; Crumpley v. Railroad, 98 Mo. 34; Hanlon v. Railway, 104 Mo. 381; Lloyd v. Railway, 128 Mo. 595. We think the plaintiff’s evidence shows that the company’s servants were guilty of negligence that caused plaintiff’s injury.

3. Did the plaintiff convict himself of negligence that directly contributed to his injury, is the second question to be disposed of. What constitutes negligence, or contributory negligence, is, as a general rule a question of fact for the jury and where the facts, with respect to the negligence of the party, are such that reasonable minds might differ as to their effect, the question of negligence is a question of fact for the jury. Doyle v. Trust Co., 140 Mo. 1; Maus v. City of Springfield, 101 Mo. 613; Fulks v. Railway, 111 Mo. 335; Barry v. Railway, 98 Mo. 62; Tabler v. Railway, 93 Mo. 79: Kinney v. City of Springfield, 35 Mo. App. 97; Covell v. Railway, 82 Mo. App. 180; Owens v. Railway, 84 Mo. App. 143. It is only where the facts are of such a character that all reasonable men must draw the same inference that it becomes the duty of the court to decide the question of negligence as one of law. Eichorn v. Railway, 130 Mo. 575; O’Mellia v. Railway, 115 Mo. 205; Becke v. Railway, 102 Mo. 544; Thompson v. Railway, 86 Mo. App. 141; Zellars v. Mo. Water & Light Co., 92 Mo. App. 107. The evidence shows that plaintiff was looking northwardly or northwestwardly when the car struck him; that if he had been looking to the south, the direction from which the train came, he could have seen the movements of the train in time to have stepped off the track and avoided the injury. In the light of this evidence it is contended by defendant, that being on a public crossing plaintiff ’s failure to look for an approaching train was such contributory negligence as to preclude his right of recovery, and in support of this contention cites some of the numerous cases holding it to be the duty of one, before he attempts to cross a railroad track over a public highway, to look and listen for an approaching train. The plaintiff’s situation was not that of one about to cross over a railroad track on a public highway. He was standing oh the track waiting for the clearing of another track eight or ten feet in front of him that he might proceed over the latter track. He had taken that position, as he says, to avoid steam emitted from an engine that had passed over the track about a minute before he was struck. The cars standing a few feet south of him and on the same track, he had observed and saw they were not coupled to an engine. They could not move of themselves. They were stationary and could do plaintiff no harm and he had a right to presume that if an engine was coupled to them to push them over the crossing, the defendant’s servants would1 obey the statute by ringing the bell or sounding the whistle and thus give him warning in time to get off the track. Riska v. Railway, .supra. He testified that he did not apprehend any danger from these cars and it can not be said, as a matter of law, that he did not exercise ordinary care, in view of all the circumstances by which he was surrounded. A very prudent man would perhaps have stepped off the track as soon as the danger of having steam blown upon him from the engine on track number one was passed, and avoided the possibility of being injured by the cars on the main track, and the failure of plaintiff to step off the. track immediately after the engine passed him may indicate that he was somewhat negligent. But these facts do not warrant a court, as a matter of law, to convict him of the lack of the exercise of ordinary care. The question, as to whether or not he was negligent, we think was a question of fact for the jury. This question was submitted to the jury on instructions very favorable to the defendant, more favorable we think than the evidence warranted.

4. For the plaintiff the court gave the following instruction:

“The court instructs the jnry that although you should believe from the evidence that plaintiff was guilty of having placed himself in a dangerous position and was negligent in failing to observe the approaching train, yet, if defendant’s servants, operating said train, saw plaintiff was in a dangerous situation, or by the exercise of reasonable care on their part, might have discovered his dangerous situation in time to have averted the injury by using ordinary diligence then your verdict should be for the plaintiff.”

All the evidence shows that the engineer in charge of the engine did not see and could not have seen the plaintiff from his place on the engine at any time after he started to back up on the main track to couple onto the nine cars standing on the track. There was, therefore, no evidence upon which to base this instruction. But we do not think the giving of the instruction was prejudicial to the defendant for the reason that the failure of defendant’s servants to see that there was no one on the crossing to be hurt before backing the engine onto the crossing was in itself, in the circumstances, an act of negligence and opposed to the careful and usual practice of engineers operating cars on defendant’s road as shown by the evidence of Rome Politte, one of defendant’s engineers, called as a witness in its behalf, who testified that when an engineer backs up to take on eight or ten cars standing near a crossing, he always looks to see if there is anything or anybody on the crossing. The negligence of defendant being thus shown by the evidence of both parties, the only mooted question of fact in the case was whether or not plaintiff was guilty of contributory negligence. The jury found this issue for the plaintiff, under instructions extremely favorable to the defendant. In these circumstances we do not think the instruction on discovered peril was at all prejudicial.

Judgment affirmed.

Beyburn and Goode, JJ., concur.