Lamb v. Missouri Pacific Railroad

BURGESS, J. — This is an action by the plaintiff Mrs. Lamb (her husband Harvey Lamb joining in the suit with her), for $10,000 damages for personal injuries alleged to have been sustained by her being run against, knocked down and bruised about the face, head and limbs, and her left heel and the under portion of her left foot crushed by a tender, which was attached to one of defendant’s engines. The case was tried to a jury who rendered a verdict in favor of plaintiffs assessing the damages at $3,000, upon which judgment was rendered. Defendant appeals. The amended petition upon which the case was tried alleges that the injury occurred in the city of Pleasant Hill on the sixteenth day of June, 1893, under the following circireumstances. “That on said day plaintiff, Jessie Lamb, was walking on the public sidewalk on the west side of the public highway and street .called "Wyoming street, leading from the southern portion of said city in a northwesterly direction, being one of the principal streets in said city, and which crosses said railroad in a northwesterly direction from and about one hundred yards of the defendant’s depot in said city, and in the business portion thereof. While said plaintiff was in the act of crossing said defendant’s railroad track at Wyoming street aforesaid, about eight o’clock and thirty minutes, on the evening of said day, it being dark and cloudy at the time, the defendant by its agents, servants and employees, while operating a locomotive engine and tender on said road at said crossing, carelessly, negligently and recklessly ran said engine and tender backwards over and against plaintiff, — 177 — Jessie Lamb, and she was then and thereby struck by said tender and while on said crossing and track, and thrown down against the tires, the ties, the stones and the ground with great force and violence, the said tender and engine passing on and over plaintiff’s left foot, whereby and by reason whereof her heel and under portion of her left foot was mashed and mangled; that by reason of the striking and knocking her down as aforesaid, she was wounded and bruised about the head, face, chest, body and limbs, whereby and by reason whereof she was seriously and permanently injured. 'that the train causing the injury consisted of a locomotive engine and tender; that said train approached said crossing at great speed, to wit, at the rate of twenty miles per hour, running -with said tender in front of said engine, there being coal and other substances on said tender; the said train was run in such a way that the headlight of the locomotive engine was hid from plaintiff’s view by the said tender in front and the said coal and other substances on said tender. That defendant’s servants in charge of said engine and tender carelessly and negligently omitted to give any signal or warning by bell or whistle or otherwise before reaching said crossing as required by statute in such case made and provided. That by reason of the darkness of the night and of the light of the locomotive engine being obstructed by said tender and by the coal and other material as aforesaid, she was unable to see the approach of the engine and tender, and on account of the failure of the defendant’s servants and agents in charge of said engine and tender failing and neglecting to ring the bell or blow the whistle or give any warning or signal whatever, she was unable to hear the approach of said engine and tender until so near her that she was unable and could not make her escape and avoid the accident aforesaid.” The defenses were a general denial and contributory negligence. — 178 — Pleasant Hill is a city of something over two thousand inhabitants. The injury here sued for occurred in that city in the evening of June 16, 1893, where Wyoming street crosses defendant’s track. This track runs from the southeast in a northwesterly direction, and divides the business from the residence portion of the city. Mrs. Lamb lived on the north side of the track. She had lived in the city about twenty-six years, and was familiar with the streets, and their crossings with the railroad tracks. On the evening of the accident she had occasion to call at Rayborn’s grocery store on the south side of the track, and left there for home about 8:15 p. m. of that evening. It is about one hundred and seventy-five feet from this store to the first railroad track in the direction plaintiff had to go to get home. There are some five or six railroad tracks across the street, at this point, and a large number of trains were passing each way every day. When she got within four or five feet of the first track she stopped. She then heard the whistle of the passenger train from Kansas City which was about due, and waited for it to cross Wyoming street, to the east before crossing the track. This train was on the second track from the south, where Mrs. Lamb was standing waiting for it to cross the street. When it whistled it was about one fourth of a mile west of the crossing. When it had crossed the street, and the rear end of the hindmost car had about reached the east side of the street, Mrs. Lamb attempted to cross the railroad track, when an engine and tender passed over Wyoming street, running backwards west on the south track at a rate of speed variously estimated by the witnesses at from six to twenty miles per hour, ran over her, bruising her head, face and limb, crushing her left heel and the under part of her left foot, and rendering her a cripple for life. As to whether the bell on the engine to which the tender was attached was being rung at the time of the acci — 179 — dent the evidence was conflicting, but. no other signals were given. There were no lights upon the tender, and plaintiff could not see the lights on the engine. Nor was there any one in charge of the engine and tender at the time except the engineer. Mrs. Lamb testified in her examination in chief that she heard the passenger train whistle and waited for it to pull in, then looked to the west, then to the east, then back to the west, and attempted to cross the track, when the engine and tender struck her; that she heard a whistle and just about that time, almost instantly, it struck her. That no bell was being sounded on the engine when the tender struck her. On cross-examination she stated that when she first .stopped at the crossing of the railroad track she was looking toward the depot, and that there was nothing to obstruct her view of the depot, express office and water tank. That there was a dim light burning in the depot and also in the express office. That she looked west before the passenger train came down and saw some box cars standing there about fifty yards .away without any engine to them. That she could see those ■ears, but that it was lighter in the west than in the east. That she looked east after the passenger train had gone by her, and again west, before attempting to cross the track. That she could have seen the engine and tender fifty yards to the east when she looked in that direction but for the smoke and dust between her and the engine and tender, and that there was no other obstruction so far as she knew that would have prevented her from so doing, and the smoke came from the passenger train. She also testified that she had time enough to have crossed the track after she got to th¿ crossing before the passenger train arrived, but waited until it got by, for fear that she might be injured if she attempted to cross before. That when she last saw the passenger train, it was still mov — 180 — ing down, and that she did not know whether she could see the engine or not; that she saw the passenger lights. Mrs. Lamb testified upon a former trial of the cause as follows: “Q. This smoke you spoke of, came down to the track when the passenger engine first went by you?” A. “Yes, sir; when it first vrent by me, I suppose so; I suppose it went down just as the passenger train went by me.” Q. “Did you see where the smoke came from?” A. “Yes, sir; it came from the passenger train.” Q. “Was any wind blowing át the time?” A. “I do not remember.” Q. “Which direction did the smoke go from the engine, south, north, west or east?” A. “It settled in the direction in which I was.” Q. ■ “Right close to you, did it?” A. “Yes, sir.” Q. “Did it remain there clear up to the time you were hurt, the smoke?” A. “I do not remember whether it remained there all the time or not.” Q. “You did not pay any more attention to it after you first looked and saw it there, is that right?” A. “Yes, sir.” Her deposition was also taken on a former occasion in which she stated that she had gone “one step, one foot on the track before being struck.” There was evidence tending to show that at the time of the accident it was not quite dark, but dusky, light enough to see a person across the street. At the close of the evidence defendant asked an instruction in the nature of a demurrer to the evidence, which was refused, and defendant excepted. At the instance of plaintiff the court instructed the jury as follows: 1. The court instructs the jury that under the law in this State, it was the duty of the defendant’s servants and — 181 — agents, in running, conducting and managing defendant’s locomotive engine and tender when approaching any traveled public road or street, to ring its bell on such locomotive engine, at a distance of at least eighty rods from the place where its railroad crossed any public traveled street or road, and to keep the bell ringing until it crossed said street or road, and a failure on the part of the servants and employees of any railroad company running and managing its locomotive engine and tender, to ring such bell, as herein above described at such times and places as herein above specified, is negligence. 2. The jury are also instructed that if they believe from the evidence that the plaintiff, Jessie Lamb, was, on or about June 16, A. D. 1893, crippled and injured in consequence of being struck by defendant’s locomotive engine and tender in charge of and being run by defendant’s agents or employees, without any fault or negligence on her part contributing to said injury, at a point on defendant’s said railroad where the same- then crossed and» intersected a traveled public road and street then open to public use, at the place known as the Wyoming street crossing and the defendant’s servants and agents in charge of and running said locomotive engine and tender failed to ring the bell in the manner set forth in the instruction numbered 1, and that the injuring of said Jessie Lamb resulted from such failure of defendant’s servants to ring the bell in the manner so specified in instruction numbered 1, then the jury shall find the issues for the plaintiffs. 3. The jury are instructed that if they find from the evidence that the distance which the engine and tender went in going northwest and approaching the public traveled street where plaintiff was injured, to wit, Wyoming street, being the street where plaintiff alleges she was run upon and injured, was less than eighty rods from said street and crossing, it was the duty of the servants and agents of — 182 — defendant in charge of said engine and tender attached thereto, to ring the bell, at any time the engine was within, eighty rods of the crossing or street, and to continue to ring the bell until the said engine and tender had passed over the said street or crossing. 4. By the term “negligence,” as used in these instructions, is meant the want of ordinary care, and by the terms “ordinary care” is meant such care as persons of ordinary prudence and caution would exercise in the same situation, and under the same circumstances. 5. If, therefore, you believe from the evidence that the collision alleged in plaintiff’s petition occurred while the plaintiff was herself exercising that degree of care and prudence that an ordinarily careful and prudent person under like circumstances would have exercised, and that the collision was caused by the negligence of defendant, as the term negligence is explained in another instruction, number 4, then your verdict should be for the plaintiff. 6. The gourt further instructs the jury that if they find for the plaintiffs they will assess Jessie Lamb’s damages at such sum as they may believe from the evidence will compensate her, the said Jessie Lamb, for her injuries, including all bodily pain and mental anguish they may believe from the evidence she has suffered, and will necessarily and inevitably suffer, and any permanent injury or incapacity they may believe from the evidence she has sustained, and all damages, present and future, which from the evidence they believe to be the necessary result of the injury complained of, not exceeding the sum of $10,000. 7. The court instructs the jury that they are the sole judges of the credibility of the witnesses and the weight to bo given to their testimony, and if they believe from the evidence that any witness has willfully sworn falsely to any material fact in issue in this case, they are at liberty to dis — 183 — regard the whole or any part of the testimony of such witness. To the giving of all these instructions except the seventh and last defendant objected and excepted at the time. Defendant asked the court to instruct the jury as follows: 1. The court instructs the jury that the burden of proof in this cause devolves upon the plaintiffs. 2. It is the imperative duty of the jury to try this case and to decide it precisely as they would if it were a suit between two individuals. The fact that the plaintiffs are individuals and the defendant a corporation should make no difference with the jury. In considering and deciding this case, the jury should look solely to the evidence for the facts and to the instructions of the court for the law of the case, and find your verdict accordingly without any reference to who is plaintiff and who defendant. You are further instructed that each and all of the instructions must be taken and considered by the jury together as the instructions of the court, and as declaring the law by which you are to be g'overned in arriving at your verdict. 3. While the plaintiff, Jessie Lamb, is a competent witness to testify in her own behalf, yet the jury in determining what weight, if any, they will give her testimony, have a right to consider her interest in the result of this litigation, and what she has testified to against her interest, if anything, is to be taken as true, and what she has testified to in her own favor is to be given only such weight as the jury may believe from all the evidence in the case it is entitled to. 4. The jury are instructed that in determining the negligence of defendant and the contributory negligence of plaintiff, Jessie Lamb, they should take into consideration all the facts and circumstances detailed in evidence; the — 184 — 'interest, if any, of the witnesses'in the result of the litigation; the means and opportunities which they had for witnessing the transactions testified to by them, as well as the attention which such witnesses were paying to the transaction as they occurred. 5. If the jury believe from the evidence that plaintiff, Jessie Lamb, in attempting to cross defendant’s track, was guilty of any negligence which directly contributed in any degree to the injury complained of, then she is not entitled to recover herein and your verdict must be for defendant, notwithstanding you may believe from the evidence, that defendant, through its servants in charge of said engine were negligent in managing and operating it at the time of the accident. 6. If the jury believe that both plaintiff, Jessie Lamb, and defendant were guilty of negligence which contributed to said plaintiff’s injuries, then plaintiffs are not entitled to recover in this action, and your verdict should be for defendant. 7. The court instructs the jury that defendant was guilty of no negligence in running its engine and tender at the rate of speed shown by the testimony. Nor was defendant guilty of any negligence in running engine backward, with the tender in front, as shown by the testimony. 8.It was the duty of plaintiff, Jessie Lamb, to look in both ways and listen for the approach of trains on defendant’s track. And if, at any time before she came upon defendant’s track she could, either by looking or listening, have known of the approach of defendant’s engine, in time to have avoided the accident complained of, then she is not entitled to recover in this case, and your verdict should be for defendant. 9.Even if the jury should believe and find from the evidence that defendant failed to ring its bell before approaching the place where plaintiff, Jessie Lamb, was — 185 — injured, yet, if the jury find from the evidence that if such bell had been rung continuously for more than eighty rods before approaching the place where plaintiff was injured she could not have heard thesame byreasonof the noise,then plaintiff’s are not entitled to recover herein, and your verdict should be for defendant. 10. If the jury believe from the evidence that the bell on the engine which struck the plaintiff, Jessie Lamb, was rung continuously from the depot up to and across the crossing where she was injured, then your -verdict must be for defendant. 11. If the jury find from the evidence that the engine and tender which struck plaintiff, Jessie Lamb, was approaching the crossing where she stood before the passenger train came in, and that by the exercise of ordinary care on her part by looking, she could have discovered the approach of same from the east, then it was said plaintiff’s duty, when the passenger train came in, if her view was obstructed towards the east, by smoke or otherwise, to have waited before attempting to cross said track until said smoke or other obstruction had been removed, and a failure upon her part to so do, would constitute negligence which precludes her fight of recovery in this action. The court gave all the instructions asked by defendant except those numbered 9, 10 and 11, which were refused. Defendant excepted to the action of the court in refusing said instructions. The first point insisted upon by defendant for a reversal of the judgment, is that under plaintiff’s own admissions, the undisputed testimony, and the physical facts, this court should as a matter of law, declare that plaintiff was guilty of negligence directly contributing to her own injury, and is not entitled to recover. Upon this question it may be said that in no case where there is any substantial evidence adduced by a plaintiff in — 186 — support of his case, should a demurrer be sustained to the evidence, and it is only in the absence of such evidence that such ruling can be maintained. Negligence is always a question for the jury when the evidence upon material points is conflicting, and even when the facts are undisputed if they are of such a character that different minds might draw different conclusions from them, the case should be submitted to the jury. Nor can negligence be conclusively established, as a matter of law, upon a state of facts upon which fair minded men of ordinary intelligence might well differ as to the inference to be drawn from them; and when the question of negligence arises upon even a conceded state of facts from which reasonable men might arrive at different conclusions, or if the inference to be drawn from the evidence is not certain or uncontrovertable the question of negligence can not be passed upon by the court. [Gratiot v. Railroad, 116 Mo. 450; Tabler v. Railroad, 93 Mo. 79; Norton v. Ittner, 56 Mo. 351; Huhn v. Railroad, 92 Mo. 440; Mauerman v. Siemerts, 71 Mo. 101; Nagel v. Railroad, 75 Mo. 653; Keim v. Transit Co., 90 Mo. 314.] In considering this question every reasonable intendment in favor.of plaintiff is to be drawn from the evidence adduced, and to warrant us in reversing the finding (by the trial court) that she was not guilty of contributory negligence,“we must be satisfied that no other conclusion than that of plaintiff’s negligence in the premises is fairly deducible from the evidence,” giving her the benefit of every reasonable inference that may be drawn from it. [Kenney v. Railroad, 105 Mo. loc. cit. 285. See, also, Huhn v. Railroad, supra; and Mauerman v. Siemerts, supra.] While it was the duty of Mrs. Lamb when she approached the railroad track to look in both directions, and listen for approaching trains before attempting to cross, she testified that she not only looked and listened for approaching trains but that she also stopped, and could not see — 187 — or hear any. That it was growing dark, and immediately after the passenger train had crossed the street, she attempted to cross the track, when the tender was backed across the street by the engine to which it was attached at a rapid rate rate of speed without giving any signal or warning, ran over her and inflicted the injuries for which she sues. She also stated that she could not see or hear the engine and tender in time to prevent it from running against her, and that the bell on the engine was not ringing. It is true that she also testified that the smoke from the passenger train settled around her so as to interfere with her seeing the engine and tender, and that she made several contradictory statements as to the darkness of the evening and the circumstances surrounding her at the time of the accident with respect to which a number of other witnesses who testified in the case differed. But the weight of her evidence was for the consideration of the jury. Nor will her statement that she looked both ways east and west before attempting to cross the track, and did not see the tender and engine which struck her, justify the conclusion that she did not look down the first track upon which they were, for no other fair construction can be placed upon that statement than that she did look down that track to the east and also to the west. Upon all the material facts in issue except perhaps with respect to the smoke from the passenger train, the evidence was conflicting and whether the case be considered upon Mrs. Lamb’s evidence alone, or from all the evidence, the qiiestion as to whether or not she was guilty of contributory negligence was one upon which reasonable minds might very well differ, and was properly submitted to the jury. The defendant insists that error was committed in refusing the ninth instruction asked by it. It is asserted that the only charge of negligence, in respect to defendant, is that in regard to its failure to ring the bell, and from this — 188 — position it is argued that if defendant had performed its duty, and by reason of her conduct and surroundings, plaintiff would not have heard it, then defendant’s negligence could not have been the proximate cause of the injury, for the obvious reason that she would have been injured as she was, under such circumstances, had the bell been rung. This position we think untenable for the following reasons: Section 2608, Revised Statutes 1889, provides that “a bell shall be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad shall cross any traveled public road or street, and be kept ringing until-it shall have crossed such road or street.” And defendant was not absolved from this statutory duty because of a mere conjecture or possibility that plaintiff may not have heard the bell if it had been rung. Mrs. Lamb and several other witnesses testified that no bell was being rung on the engine at the time of the accident, and the mere conjecture that she could not have heard the bell had it been ringing on account of the noise and confusion, did not justify the giving of this instruction. A further contention is that the first and second instructions given on the part of plaintiff did not properly declare the law, for the reason that the law as declared by them is only applicable to railroad crossings in the country, and not between streets in a city, nor in railroad switch yards, and therefore, the tenth instruction asked by defendant and refused should have been given. It is of general knowledge that streets in cities are not as a general rule eighty rods apart, and to require a strict compliance with the terms of the statute by railroad companies in cities, and in their switch yards, as declared by plaintiffs’ instructions now under consideration, would be impracticable, indeed as a general thing quite impossible, and taken alone they imposed greater burdens upon the defendant than the law reasonably justified; but when they are — 189 — considered in connection with the third instruction given upon the part of plaintiffs by which the jury were told that if the distance which the engine and tender went in going northwest to the street, where the injury occurred was less than eighty rods from said street, it was the duty of the servants and agents of defendant in charge of said engine and tender to ring the bell at any- time the engine was within eighty rods of the crossing of the street, and to continue to ring it until said engine and tender passed over the said street crossing, they are relieved .of their objectionable features, and presented the law as we understand it. Railroad v. Rogers, 39 S. W. Rep. 1112, was an action for damages alleged to have been occasioned by the negligence of defendant’s servants in charge of the train on failing to give signals required by statute on approaching a crossing, and it was held that it was not error to refuse to instruct that if defendant gave the signals at less than the statutory distance from the crossing, and deceased could in the exercise of reasonable care and caution, have heard the warning, defendant was not liable, where the court instructed, at defendant’s request, that if defendant’s engine was started from a point within the statutory distance which was eighty rods, and gave proper signals on starting, defendant was not liable, and that plaintiff must show negligence by a preponderance of the evidence. While the instruction in that case presenting the 'question under discussion was given at the request of defendant, and in the case at bar at the instance of plaintiff, the principle is the same, and it makes no difference by which party presented. The verdict was not, we think, without substantial evidence to support it, and having met with the approval of the trial court we are not disposed to interfere. We accordingly affirm the judgment. Gantt, O. J., Brace and Williams, JJ., concur; Sherwood, Robinson and Marshall, JJ., dissent.