88 Mo. 392 | Mo. | 1885
Lead Opinion
The plaintiff sued for damages because of the death of her unmarried son, nineteen years of age. The petition states that defendant’s servants negligently ran an engine and tender over him. The answer is, that whilst the engine and tender were being backed on and along the track, deceased negligently walked on the track and in front of the tender, because of which he was run over. The reply states, that notwithstanding deceased was on the track; the servants of defendant could and in fact did see him in ample time to have stopped the engine, .but failed to do so. Plaintiff resided at Blackburn, a station on the road where she kept a hotel. She was accustomed to prepare lunch for the train men. The deceased was in the habit of going to Corder, another station west of Blackburn, two or three times a week to
While the machinery was being loaded into these cars the deceased went to a hotel on the street before named, and one hundred and fifty feet north of the main track, on his errand.. In the meantime the engineer and fireman ran the engine and tender a quarter of a mile west to a coal shaft and took on coal. Rine left the hotel; passed along the street to the track, and thence along the same towards the depot. At the same time the engine and tender backed in from the coal shaft at the rate of
That Rine was guilty of negligence in being on either the track or side track is conceded. So far as the trial of the issues in this case are concerned he was and must be regarded as a trespasser. R. S., 1879, sec. 809. Still all this did not relieve the defendant from all obligations of care towards him. The third defence, which only set up that deceased was not connected with or employed for the road, and was killed while on the track at a place where the statutes declare him to be a trespasser, was properly stricken out. If the facts are as stated by the
The defendant asked the court to give the following instruction, omitting the words in italics :
“3. Defendant is liable in this case only if its servants failed to exercise ordinary care to prevent the injury, after they became 'aware of’the danger to which deceased was exposed ; or after they might have became aware thereof by the exercise of ordinary care; and by
The court modified the instruction by inserting the italicised words, and of this action of the court error is assigned. According to the authorities before cited, the instruction should have been given as asked. There is no analogy between the case at bar, as respects the question under consideration, and those cases where the servants fail to observe some municipal or statutory regulation and the injury is attributed in whole or part to that, or where they are not found at their proper places when passing a public crossing, or going through a populous city or district, or fail to heed due warning of danger. These observations are sufficient to distinguish this case from Frick v. Ry., 75 Mo. 595, and Kelley v. Ry., Ib. 138. Here the fireman and engineer were at their proper places, were not going at an unlawful rate of speed, and were not negligent in the management of the engine and tender, unless it was after one of them saw deceased was in actual danger. The deceased was a man of discretion ; he wras familiar with the operation of the train, and also with the operation of switches, over one of which he had just passed. All this the fireman well knew, and he had a right, under the circumstances, to assume that the de-' ceased would use ordinary prudence, at least, for his own protection. Such a qualification as the one in question will be proper in some cases, but if cannot and ought not to be applied in this case. The defendant ought not to be held liable by anything short of proof and an unqualified finding that these servants negligently failed to exercise reasonable care to avoid killing Rine when and aftsr they actually became aware that he w^as in an exposed and dangerous position. • It ought also to appear that they then had the time and the opportunity to have avoided the injury, and could have done so by the use of reasonable care in that behalf. This instruction and
The pleadings virtually admit, and all the evidence show's, that deceased was on the track where and when he should not have been, all of which is entirely ignored1 in the first instruction. Although we may be able to see from the whole series of instructions that such an instruction worked no harm, still the better practice is to omit such instructions.
The bill of exceptions shows that when the motion in arrest and for new trial were overruled, the following entry was made: “ On motion of said defendant and by consent of plaintiff leave is given said defendant to file bill of exceptions thirty days after this term,” etc. The very fact that 'the court made the order sufficiently shows its consent thereto, and the consent of the parties to the suit is clearly expressed, for one asks 'the leave and the other grants it. Nothing more ought to be required. In so far as Spencer v. Ry., 79 Mo. 500, and McCarty Cunningham, 75 Mo. 279, do or are supposed to announce a different rule, they are hereafter to be regarded as modified by what is here said. The record shows the court was still in session on April 20, 1883. The bill of exceptions was filed on the seventeenth of May following, and it is, therefore, a part of the record of the case.
The judgment is reversed, and the cause is remanded for new trial.
Concurrence Opinion
Concurring. — I am glad to see that the heresy in relation to bills of exceptions has at length been gibbeted. In McCarty v. Cunningham, 75 Mo. 279, the ruling now made was expressly urged on our attention and a motion for rehearing was filed, but it was overruled. I dissented in that case, and have so done