138 Mo. 172 | Mo. | 1897
Action by plaintiff for an injury suffered by him on the thirteenth day of August, 1891, in consequence of being struck in the back by a short train of cars, thrown forward on his face and his left ankle run over, necessitating its amputation; for which injury he claimed damages in the sqm of $25,000. The trial occurred in February, 1892.
This suit was instituted in the circuit court of the city of St. Louis, and was transferred to St. Louis county by change of venue granted plaintiff on account of the alleged prejudice of the inhabitants of the city of St. Louis against him.
The negligence charged in the petition was the failure of defendant to comply with certain city ordinances requiring railroad companies to station a watchman at cross or intersecting improved streets, and to ring the bell on the engine while in motion, and to station a man on top of the car at the end of the train farthest from the engine to give danger signals, and 'prohibiting them from running their trains at a greater rate of speed than six miles per hour.
Defendant’s answer was a general denial and plea of contributory negligence on plaintiff’s part and authority to run its trains over the spur track at the point at which plaintiff was injured.
The diagram subjoined, shows the surroundings and scene of the accident, which occurred at a point on the plat marked with the *.
Briefly presented, the facts attending the injury were these: On the thirteenth of August, 1891, about the middle of the afternoon, plaintiff started from where he was employed as water tender for the Municipal Electric Light & Power Company’s works, which is
The testimony adduced by the defendant tended to prove that this train was moving eastward on Gratiot street at a speed of six miles per hour or less; that
Defendant demurred to the evidence at the close of plaintiff’s evidence and at the close of the whole case, but unsuccessfully.
The jury after receiving most elaborate instructions on behalf of the respective parties litigant, returned a verdict for defendant. Plaintiff filed motion for a new trial, and the court granted it “on account of an erroneous instruction given on behalf of said defendant.” What instruction it was is nowhere pointed out.
Owing to the facts which- have already been disclosed, however, it is unnecessary to discuss whether error was committed in instructing the jury or not, since the evidence shows such a clear case of contributory negligence on the part of plaintiff, directly contributing to his injury as to leave no doubt that the
This ease in its contributory negligence features, is strongly resemblant of that of Maxey v. Railroad, 113 Mo. 1, and for like reasons therein stated the instruction in the nature of a demurrer should have been given. See that case and the authorities therein cited, and also the later cases of Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Lane v. Railroad, 33 S. W. Rep. 645.
Judgment reversed and cause remanded to the circuit court with directions to enter a judgment for the defendant.