98 Mo. 272 | Mo. | 1889
— This is an action to recover five thousand dollars damages for the death of plaintiff’s wife, which was caused by one of defendant’s trains, whilst passing through the town of DeSoto, Missouri, and at a public crossing over the railroad tracks in said town.
Defendant has appealed from the verdict and judgment, for said sum, in favor of plaintiff. The answer contained, first, a general denial; second, contributory negligence, on part of the deceased ; the replication was a general denial to new matter.
Defendant offered no evidence in its own behalf, but at the close of the evidence for plaintiff, asked an instruction in the nature of a demurrer to the evidence, which the court refused, and the exception taken by defendant, in this behalf, is now urged in this court, as error, requiring a reversal of the judgment in the cause.
The evidence shows that there were some six or seven different tracks, being the main track on the west, and the several side tracks, comprising the switch-yards, extending from north to south through, or nearly through, the length of said town of DeSoto, and that the public crossing in question, over said tracks is ábout or near the middle of said yards, the tracks themselves being generally straight or without curves, except such as are necessary to join and connect the said tracks, and that the tracks have considerable down grade, from south to north at this point. The train, which was, it seems, an ordinary freight train, was at the time of the iniury, coming from the south, without the engine
The petition, we may observe in this behalf, was not based upon any alleged violation of any city or town ordinance, but alleged and charged defendant with negligence, in so detaching the engine from the train, and permitting the latter to be so run, without any means of warning, such as the bell or whistle of the engine would have afforded, and with negligence also, in crowding the cars upon the intermediate side or switch tracks, so as to obstruct the view of the deceased, as she approached from the east, the track on which the train from the south was moving at the time.
As to the conduct of Mrs. Butts, at the time of the injury, which is the controlling question in this behalf, the evidence shows we think in substance about this state of facts: She was about sixty-five years old at the time, as her husband, the plaintiff, states, and was passing over the crossing going west, that is, she was
Her attention, at the time, seems to have been wholly directed to, and occupied with, an engine, which at the time was moving, or backing, down to the north of said crossing, but, we have been unable to learn definitely from the evidence, which of these tracks said engine was on, at the time. The evidence shows that she did not look or turn her head to the south, in which direction the train was coming, and did not notice or observe the same. This is the statement in substance, in this behalf of Mr. Shafer, who was the principal witness for plaintiff, and who saw and observed Mrs. Butts as she approached, and entered upon the said track, where she was struck. Shafer, who was opposite the crossing and on the west side, and who was able, in his position, to see the train (the first or the main track to the west only, being between him and the moving train) became alarmed, and remarked, as he testified on his examination in chief, “ ‘that lady will
It also further appears, from the examination in chief, as well as cross-examination, that after he and others got over to where she was, and whilst they were lifting her up, she “ wanted to know who struck her,” but this exclamation or inquiry, so made, is perhaps of little value under the circumstances. The evidence further shows, as claimed by plaintiff, that cars, on the intermediate tracks' extended up to or about up to the crossing on the south, and that they pretty effectually obstructed the view of a party, walking over said crossing, and approaching the second track from the east, but the evidence is, we think, direct, clear and indisputable, that, after passing over the third track from the west, there was before entering upon the second track, an open space being the width between the tracks (less, perhaps, the extension of the car over the track), in which the deceased would have an unobstructed view of the approaching train from the south.
Dr. Suddrick having, in the first instance, testified as to the injury and-cause of death, upon being recalled by plaintiff to testify as to the condition of the tracks, as to cars, etc., upon cross-examination testifies, among other things, as follows :
“Q. You say, then, if Mrs. Butts, just as she was going from the third track over towards the scale track,
“Q. And avoid being struck by that train? A. Yes, sir; but it was only two steps, you may say ; two short steps.
“ Q. And if she had looked down she could have seen that train and avoided being struck ? Your answer to that is yes? A. Yes, sir ; of course that is the case; any one could not help but answer it that way.”
Mr. Shafer’s testimony is, as to this, substantially to the same effect, as we understand the same. For example, the following, among other things, occurs in the course of his examination:
“ Q. There was nothing to prevent her from seeing it, if she had looked down that way 3 A. Well, she was coming from the .east, this way (indicating), and here were some trains, then some standing box cars standing there, and so on, and the noise of the other engine, they both attracted her attention. It seemed to me, ‘it is a wonder she don’t look around.’
“Q. She didn’t look around? A. • No, sir.
“ Q. There was nothing to prevent her from seeing the train if she had looked around? A. If she had looked around she might have seen it.
“ Q. Was there anything to prevent her ? A. It was a very short time for her to see it, too ; it was moving up pretty rapidly.
“Q, Was there anything to prevent her from seeing the train if she had looked around. A. No, sir ; not as I know of ; if she had looked, walked up within a track or so, within the width of one track.
“Q. She could have looked down and seen the train coining up 3 A. ¥es, sir
Our attention is further directed to some other statements, in the evidence of this witness, supposed to be somewhat different, or to modify the force and effect of the evidence as above cited, but this evidence seems to be given in answer to questions, as to the opportunity and ability of Mrs. Butts to see the approaching train, as she approached, and when at or upon the third track, with reference to which position, he says he don’t know whether she could see, or that he don’t think she could. But we think he means to say, and does say, that after crossing the third track, she could have stopped in safety, in the space between these tracks, and by looking south, could have seen the train in time to avoid injury. This is, we think, manifestly the fact from the necessary open space between said tracks.
And further, we may observe, that the petition does not charge, that the employes and servants of defendant could have prevented the injury, after Mrs. Butts entered upon said track, but alleges, as before stated, that she was struck just as she was in the act of stopping upon the same. The entry of Mrs. Butts upon the railroad track, and the collision were simultaneous. The evidence of Mr. Shafer further is, that the conductor, who was about the middle of the train, did not see Mrs. Butts in time, but saw her when she was getting on the track, or just as she was hit, and seemed much alarmed and ran over the train, setting the brakes pretty fast. Such, then, being in effect and substance the evidence in plaintiff’s own behalf, it shows, we think, the existence of contributory negligence on the part of the deceased, which, notwithstanding the negligence of defendant in the said operation and management of said train, precludes a recovery on the part of the plaintiff. The case, so made, is governed and controlled, we
The judgment is, therefore,