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

101 Mo. 93 | Mo. | 1890

Barclay, J.

The theory on which the circuit court submitted the cause to the jury is best exhibited by the instructions given, which were these, viz.:

FOE PLAINTIFF

“1. The court instructs the jury that it was the duty of the defendant’s flagman, and its agents and servants, in the management of its locomotive and train under their charge, to exercise reasonable care and precaution, to prevent any injury to persons upon the tracks of defendant, and any failure on their part to exercise such care and precaution would be such negligence as to make the defendants liable for any injury to plaintiff’s husband resulting from such negligence, unless the jury further believe from the evidence that the negligence, of the said husband of plaintiff contributed directly to the injury sustained by him; and, in passing upon the question as to whether the flagman and agents and servants of the defendant were or were not negligent in the conducting and managing of the locomotive and train at said crossing, you should take into consideration all the facts and circumstances, as proved by the evidence to have existed at .the time when and the .place where the injury occurred; and you should give to each fact and circumstance and to the testimony of each witness such weight only as you may deem such fact, circumstance or testimony entitled to, in connection with all the evidence in the cause.

“2. By the term ‘negligence,’ as used in the instructions, is meant the want of that degree of care that an ordinarily prudent person would have exercised under the same circumstances.

“If you find’for the plaintiff, you will assess her damages in your verdict at the sum of five thousand dollars.”

FOE DEFENDANT.

“3. If the jury find from the evidence that the deceased husband of plaintiff knew, or, by the exercise of ordinary care and prudence, would have known, that the train by which he was injured, at the time he intended to cross defendant’s track at Lesperance street crossing, was moving, or in the act of moving, and he attempted to cross the track between the ends of two cars belonging to said train, separated about two feet apart then the fact (if they find it to be a fact) that there were no gates at the crossing, no brakeman stationed on the car farthest from the engine, and that the watchman was not at his post, and that no bell on the engine was ringing, is immaterial.”

FOE DEFENDANT, BUT MODIFIED BY THE COUET.

“4. If the jury find from the evidence that the deceased husband of the plaintiff, at the time he was crushed by the cars of the defendant, was attempting to cross a track of defendant, at the Lesperance street crossing, by going between the ends of two cars of defendant then standing on said track about two feet apart, and that the employes of defendant in charge of the train of cars, of which* said two cars formed a part, were attempting, at the time, to separate the parts of said train at said crossing, so as to make a passage over said crossing for teams and vehicles, and that said deceased knew, or by the exercise of ordinary care, could have known, that said employes of defendant were at the time attempting to move said train, so as to make a crossing, as above stated, and that said cars between which said deceased attempted to pass were liable to be showed or pushed together suddenly, then there can be no recovery in this case, and the verdict will be for the defendant.”

The words italicized in the last instruction were added by the court against defendant’s exception. The rest of it was asked by defendant.

I. It will thus be seen that the main issue put to the jury was whether the death of plaintiff’s husband was the result of a breach of any of the duties which the court declared rested on defendant’s agents in charge of the train and its flagman to exercise reasonable care to prevent damage to persons on the tracks of defendant at the street crossing in question. Defendant insists that this issue was not tendered by the petition and that only the breach of the ordinances constitutes the cause of action alleged.

Undoubtedly the ordinances prescribe certain precautions to be observed by railway operatives and forbid certain other acts to be done by them, but the effect of such enactments is not to absolve the company from the observance of ordinary care (in many particulars not mentioned in ordinances but defined by the general law of the land) to avoid injury to those who use the public crossings where its tracks are laid.

The petition recites certain sections of the ordinances of St. Louis as having been violated, but it also alleges that the death of deceased was caused by the negligent movement by defendant of the freight car that struck him and a breach of duty in that regard on the part of the flagman, and train operatives, whose duties are set forth at some length and fairly embrace those mentioned in the plaintiff ’ s first instruction.

It is further claimed that that instruction is erroneous “because it imposes a degree of care upon the flagman and the servants of defendant in charge of said train that the law does not require; that there is no duty imposed by law upon the flagman and engineer and firemen and brakemen to exercise care to prevent any injury to persons upon the tracks of the defendant; that the first and only duty of the flagman is to do what the ordinance requires (the common law not requiring the presence of a flagman at a crossing), that is to be at the crossing in the daytime and display his flag thereat.”

We do not assent to this proposition. As has already been intimated, duties devolve on operatives of a train (in many varying circumstanées not referred to in ordinances) to avert injury to persons on the railway track, and the same observation is applicable to the watchman or flagman at such crossings. It is true that the ordinance requires the presence there of a watchman “ who. shall display at the cars in the daytime a red flag and at night a red light.” But it is neither in harmony with the letter or spirit of such legislative language to say that it means he shall do no more than hold his flag by day or lantern by night. Looking merely at the words of the ordinance, he is first of all a “ watchman, ” one set to espy the approach of danger and give an alarm or notice of it, as defined by one lexicographer. The flag or lantern might aid him in giving the alarm, but either would be of little avail if he did not act the part of watchman in their use.

Considering the spirit and purposes of the ordinance it is evident that such a watchman’s duty includes the exercise of ordinary care in warning persons on or near the street' crossing of any approaching danger from passing trains. We think the instruction in question correctly defined the measure of duty resting on defendant’s agents at the crossing as applied to the facts and under the pleadings of this case. It also submitted to the jury the question of the contributory negligence of deceased as one of fact, and there was a finding in plaintiff’s favor on that issue. We shall have occasion to discuss that phase of the case later on.

II. The definition' of negligence contained in the second instruction given for plaintiff was not' erroneous in view of what has been already said regarding the proper issues in the cause and of prior decisions of the court as to what constitutes negligence.

III. The instruction asked by defendant and modified by the court was properly refused in its original ■ form. Knowledge by deceased that defendant’s employes were about to move the train so as to make a .crossing would not, in the circumstances mentioned in that instruction (above copied), constitute negligence as a matter of law. The instruction as finally given by the court was quite as favorable to defendant as in strictness it could demand, to say nothing more. And, as defendant requested the instruction in a form submitting the question of negligence of deceased as an issue of law, it cannot complain that the submission (in the circumstances here shown) of such’an issue was inconsistent with the plaintiff’s first instruction in which that question was properly submitted as one of fact.

IV. We next consider the ruling of the trial court refusing defendant’s request for an instruction that plaintiff could not recover. Defendant contends that it should -have been given for the reason that the deceased was guilty of such contributory negligence as bars recovery.

We pass all questions raised regarding the form in which that issue was presented and consider its merits. An outline of the salient facts is given in the statement preceding this opinion. We need touch upon only some of them here. It appeared that deceased, who was in charge of a team on Lesperance street, left it at some distance west of the crossing in question, went eastward across it to get a bolt or rod that had dropped from his wagon, and while there the train backed upon and covered the crossing on track number 7 where the accident occurred. Prom the evidence of defendant’s witnesses, it seems that the train consisted of eighteen cars which were “ shoved” north by an engine until the switch foreman pulled a coupling pin between the eleventh and twelfth car and had the engine stop by signal. This left in motion the seven cars north of the uncoupling point, and soon the cars on that part of the track struck the north end of it (number 7) and came to a stand. But the opening thus left at the street crossing was only as “ wide as a door,” or “some two feet,” as variously described by witnesses. Through this opening, deceased undertook to pass but was caught and killed by a backward movement northward of the engine and train of eleven cars. This movement is said to have been made with the object of pushing the loose train of seven cars closer together toward the north, but, as it was evident that an opening for the purpose of clearing the street was to be made, a forward movement of the engine and train of eleven cars was much more likely to be anticipated by a looker on, than the movement that was actually made. There was evidence that no bell was rung or whistle sounded before the movement of the train in question. Deceased might rightly assume* that some such signal would be given before the movement was made. Meek v. Railroad, 88 Ohio St. 632 ; Correll v. Railroad, 38 Iowa, 120. He had left his team in the street and was anxious to return to it. Defendant’s watchman gave no warning of danger, and in all the circumstances we do not think his act in passing through the opening can properly be pronounced negligence as a matter of law. Such a ruling can be made only where no other inference can fairly and reasonably be drawn from the facts in evidence.

V. There was abundant evidence that defendant was negligent in several particulars under, the ordinances and general law, and we find no substantial error in the rulings on the admission of testimony. Defendant objected to the admission in evidence of the ordinance requiring gates and a watchman at the crossing in question. The absence of gates was not submitted by the court to the jury as bearing in any way on defendant’s liability ; but the conduct of the watchman had a decided relevancy to the issues tried.

The objection was to the whole section oí the ordinance, of which a part was thus clearly reve'lant. Had defendant requested an instruction to disregard tbe portion now claimed to be irrelevant, a different question would be presented, but no such request was made. We think there was no error in the ruling of the court on this point.

The case appears to have been tried fairly and carefully.

We affirm the judgment,

all concurring.