71 Mo. 476 | Mo. | 1880
This is a suit by plaintiff to recover damages, for an injury received by him while walking on the defendant’s railroad track, in the city of Hannibal, where the railroad runs over a street of said city, occasioned, as the plaintiff alleged, by the neglect of the employees of defendant'to blow the whistle or ring the bell as required by,the statute. He obtained a judgment for $4,000, from which the company has appealed. The defense set up in the answer was negligence of the plaintiff, which occasioned the injury, and a denial of the negligence imputed to defendant. The evidence for plaintiff’ was substantially as follows:
Plaintiff testified that he was about fifty-four years of age when the accident occurred, 24th day of January, 1875; that he got up early that morning to go to a mill for bran. There was lumber piled up between his residence and the railroad ; saw no train, did not look around or back. The first thing he knew was when he got on the track, the cowcatcher struck him, and he was knocked down and dragged some distance by the train. If the whistle was sounded or the bell rung, he did not hear it. Had been living in Hannibal six years, and been on the railroad more or less every day; was in the habit of going over this crossing every day and walking on the track. Hearing, worse since the accident. Up to that time could hear the signals of the train. Could hear it now at his house. Could go to the same place and turn his back and hear the signals. Did not attempt to cross over the track. Wanted to go the quickest way to the mill. It was a better walk up Collier street. Could give no reason why he did not cross the road and walk on north side of the street. Got right between the rails; walked up to the road from his residence, and turned up the railroad track. Looked across for the train when he came out of his door; did not stop and look after he crossed the bridge over the creek, to see if a train was coming. His hearing was as good then as now. It was light enough to see a train, but couldn’t see it from
Dr. Thorndyke, the physician who amputated his arm, testified to the extent of his injury and the necessity for amputation; that the injury to the arm would not affect the hearing; did not know that plaintiff’s hearing was better before.the accident than since.
Wedgewood for plaintiff testified: The train, that morning, was going west. Witness, then an employee of defendant, signaled it to go on. This signal he gave about three minutes before he heard plaintiff’s cry of distress. Saw plaintiff that morning coming across the bridge over Dear creek, before the accident. The train was then between the bridge and Hibbert’s mill. Did not consider he was in any danger. There was no obstruction to plaintiff’s view between the place where witness saw him, on the bridge, and the train. It was in fair view. He could have seen it, and was in plain and distinct hearing of it. He was forty or fifty feet from the train when he was crossing the bridge, and about forty feet from the main track of the Hannibal & St. Joseph Railroad, walking at, what witness called, a common jog. He further testified that plaintiff was deaf, and one had to talk to him very loud to be heard by him.
The testimony offered by plaintiff as to speed of train was conflicting, one witness fixing it at about fifteen miles another at about six miles an hour. The defendant’s evi-’ deh.ce tended to show the speed of the train to have been from six to eight miles an hour. The testimony for plaintiff was to the effect that neither the bell on the locomotive .was rung nor the whistle sounded; while the engineer and
For plaintiff the court gave the following instructions :
1. It was the duty of the defendant’s servants and agents, in the management of its locomotive and train under their charge, to exercise reasonable care and precaution to prevent injury to the person of plaintiff, and the failure on their part to exercise such reasonable care and precaution, would be such negligence as to make defendant liable for any injury resulting from such negligence.
2. In passing upon the question as to whether the ■servants and agents of the defendant were or were not guilty of negligence in the management of its locomotive and train, the jury 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 the jury should give to each fact and circumstance, and to the testimony of each witness, such weight only as the jury may deem such fact, circumstance ■or testimony entitled to, in connection with all the evidence in the cause.
3. Even if the jury should believe,|from the evidence, that the plaintiff was guilty of negligence or carelessness which contributed to the injury, yet if they further believe, from the evidence, that the agents or servants of defendant, managing the locomotive or machinery of the defendant with which the injury was inflicted, might have avoided the said injury by the use of ordinary care and caution, the jury will find for plaintiff.
4. It was the duty of the defendant to commence ringing the bell or blowing the whistle at a distance of eighty rods from the crossing of Main street and keep ringing the bell or sounding the whistle until the locomotive and train had crossed said Main street; and if it ap
5. If the jury find for the plaintiff, they will, in estimating the amount of damages, take into consideration the age and situation of the plaintiff, his bodily suffering and mental anguish resulting from the injury received,and the loss sustained by the want of the limb injured and destroyed, and the extent to which he is disabled from making a support for himself by reason of the injury received.
6. The jury are the sole judges of the credibility of the witnesses who have testified in the cause, and if they believe from the evidence, that any witness has willfully sworn falsely in regard to any material fact at issue in the cause, they are at liberty to disregard the entire testimony of such witness.
Of its own motion the court gave the following:
1. Unless the jury find, from the evidence in the ■cause, that the servants and agents of the defendant were careless or negligent in the management of the train, and unless the jury further find that the injury was caused by such carelessness or negligence, the verdict should be for defendant.
2. If the jury find, from the evidence, that the plaintiff neglected to use a reasonable degree of care and caution, under all the circumstances, to avoid the injury, and that such negligence .on his part contributed to produce the injury, they should find for the defendant, unless they further find that defendant’s servants and employees could, under all the circumstances, by the exercise of reasonable care and caution on their part, in the management of the train, have prevented the injury.
3. The question as to whether the employees of defendant or the plaintiff, did, under the circumstances, use a
The following asked by the defendant were refused :
1. It was the duty of the plaintiff when he arrived at the track of defendant’s railroad, at the crossing described in the petition, to stop and look and listen and ascertain whether any train was approaching before he stepped upon said track.
2. If the jury believe, from the evidence, that plaintiff’s hearing was impaired at the time of the injury in question, then it was improper for him to pass upon the track of the defendant’s railroad at the point described in the petition, without first stopping at said track and ascertaining whether any train was approaching; and if they further believe, from the evidence, that the plaintiff, after stepping upon said track, turned and was walking westerly thereon, then they will find for the defendant, notwithstanding they may further believe, from the evidence, that the bell was not ringing at the time the plaintiff was struck; and notwithstanding they may further believe, from the evidence, that the fireman of said train saw the plaintiff’ approaching the crossing described in the petition, from seventy-five to one hundred feet from the track, on the fireman’s side of the engine, and said engine was from one to two hundred feet east of said crossing at the time said fireman saw the plaintiff approaching said crossing; and notwithstanding they may further believe, from the evidence, that said train was running at a speed not exceeding fifteen miles per hour.
3. If the jury believe, from the evidence, that plaintiff resided in the city of Hannibal, on Main street, within 300 yards of the Hannibal & St. Joseph Railroad where it crosses said street, and that he was in the daily habit of traveling said street and crossing said railroad track for several years; that engines and trains were frequently pass
4. If the jury believe, from the evidence, that the plaintiff, when he approached the crossing described in the petition, neglected to stop and look and listen for an approaching train before passing on the track, of the defendant’s railroad, they will find for the defendant, notwithstanding they may further believe, from the evidence, that the employees in charge of the train in question neglected to sound the whistle for said crossing and also neglected to ring the bell as said train approached said crossing and to keep ringing it until said train had passed said crossing; and notwithstanding they may further believe that plaintiff was injured as alleged in his petition, provided the jury shall further believe, from the evidence, that the employees in charge of said train did not know that the plaintiff was hard of hearing, and did not know that the plaintiff was on the track at the time he got injured.
5. If the jury believe, from the evidence, that the plaintiff was deaf or that his hearing was impaired, then it was his duty before passing on the track of the defendant’s railroad, at the point described in the plaintiff’s petition, to stop at said track and look both up and down said track so as to ascertain whether any train was approaching; and if the jury believe, from the evidence, that the plaintiff neglected to take this precaution before stepping upon said track, and after stepping upon said track he turned and
The questions presented for determination by this record, have been so often passed upon, that we can but express surprise at the utter disregard by trial courts of the law, as announced by this court in repeated adjudications.
The identical language of the court in that case, occurs in the opinion of the court in the case of Ernst v. Hudson River R. R. Co., 35 N. Y. 27, in which the facts fully justify the construction we have placed upon it. There is scarcely a point of resemblance between that and the case at bar. There, the injured party could neither see nor hear an approaching train. It is distinctly stated by the court, as one of the facts, that, “instead of his (plaintiff') having, from the hotel down, except opposite the station house, an open view of the northern track for a hundred rods, there was but one place in the whole distance where, even if he had been standing up and expecting a train, he could have seen it as far north as the ice bouse, which was within five hundred and ninety-four feet of the crossing.” But another controlling fact in that case was-, that the station at which the accident occurred was a flag station, “and it had long been the uniform practice of the company, known to and relied on by those who traveled the road, to give warning when a train was sufficiently near to make the crossing dangerous, by having a flagman in the middle of the track holding up a white flag if the train was to stop, and a red flag if it was to pass without stopping.” On that occasion these precautions were omitted by the company. We notice this case thus particularly, because urged upon our attention by counsel for respondent “as the ablest, fullest and most satisfactory discussion of the question here presented, to be found in the books.”
The doctrine contended for is that, although a traveler could have seen if he had looked, or heard if he had listened, for an approaching train, yet, without looking or listening, he may go upon the track and not be chargeable with contributory negligence if run against and injured by a train of ears passing over the road; that he may shut his eyes and close his ears, and walk, ride, or drive across or along a railroad track, and if the company fails to blow its whistle or ring its bell, as required by law, his negligence is canceled by that of the company, and ceases to be a proximate cause- of the injury, of which the negligence of the company is then to be regarded as the sole proximate cause.
Here, the plaintiff' had lived for six years within a few blocks of where he was injured ; was on and over the railroad every day; knew that the passage of a train over the road, at any hour, was not an improbability; could have seen the train from the bridge over Bear creek, and if he had not been deaf, could have heard it; could have seen it when he walked upon the track, if he had looked in the direction from which it was approaching; was in his right mind ; his visual organs were unimpaired, but he did not look in that direction, and there were but two directions in whiph he had to look to see an approaching train,, which could have injured him. He did not look or listen, but recklessly pursued his course upon the track of the railroad, between its rails, when there was ample space north of the track where he could have walked in safety; and yet it is urged that he was guilty of no negligence, but acted just as a prudent man would have acted under the circumstances. If, in such a case, a recovery can be had against a railroad company, the law might be declared in a very few words, that if any man crosses
In The R. R. Co. v. Houston, 95 U. S. 697, in an able opinion by Justice Field, the doctrine is very clearly stated as follows: “The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employees in these particulars was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into a
The same doctrine is maintained in The L. S. & M. S. R. R. Co. v. Hart, 87 Ill. 529, in which Fletcher v. The R. R. Co., 64 Mo. 484, and Harlan v. The R. R. Co., 64 Mo. 480, are cited and approved; and the following language of Judge Sheldon, who delivered the opinion of the court, is very pertinent here: “ This court has time and again decided that it was the duty of every person about to cross a railroad track to approach cautiously, and endeavor to ascertain if there is present danger in crossing, as all persons are hound to know that such an undertaking is dan.gerous, and that they must take all proper precaution to avoid accident in so doing, otherwise they could not recover for injury thereby received. With increased force •does the rule apply and a higher degree of vigilance is .required when, as in the present case, a party is not lawfully upon the track at a crossing or upon a public highway, but is walking along laterally upon the track, as a way of -convenience, where' it is exclusively the private right of way of the railroad company.”