Drake v. Chicago & Alton Railroad

51 Mo. App. 562 | Mo. Ct. App. | 1892

Gill, J.

From the facts of this case about which there can be no dispute, the plaintiff cannot, under the oft-repeated decisions in this state, be permitted to recover. It may be conceded, notwithstanding the great amount of evidence to the contrary, that defendant’s servants in operating the train failed to observe the law, and did not ring the bell or sound the whistle as the train approached the crossing, and, therefore, were guilty of negligence, yet it clearly appears that plaintiff himself was obviously at fault, in that he failed to look out for approaching trains when about to enter upon defendant’s tracks, and which if he had done he would have seen .the approaching train in ample time to have avoided the injuries of which he now complains. As said by the supreme court in the Lenix case, 76 Mo. 91, the duty of one who goes upon a railroad track at a public road crossing has been so often defined that its repetition has become monotonous. ■ ‘He must use his eyes and his ears; he must look and listen; and, if he fails to observe these most obvious dictates of prudence when approaching such dangerous machinery as a moving railroad train, he has no room for just complaint if he suffers injury solely because of his neglect to use such reasonable and prudent precautions, although the railway company has been remiss in its duty in respect to giving the customary signals.” “And it is the duty of the court,” says the same judge, “when the facts constituting direct contributory negligence are undisputed, to declare to the jury the inference which the- law draws from the facts, which inference bars the plaintiff of any recovery.”

That plaintiff heedlessly entered upon the open right of way of the defendant’s road, and carelessly drove his team rip and onto the tracks, and passed over a space of not less than one hundred feet, without looking to the east for approaching trains, is, under this testimony, subject to the demonstration of a mathematical certainty. And it is equally as true, that if he had, while passing over this space, cast his eyes to the east (whence he had reason to believe a train might be approaching) he would have discovered the coming train in abundant time to have escaped all possible danger. The evidence shows unquestionably, and beyond dispute, that .when plaintiff entered upon defendant’s right of way he was then about one hundred and seventy-five feet from the track of the railroad; it shows, too, that from this time on until the tracks were crossed the plaintiff had an unobstructed view of the railroad east to the distance of fifteen hundred to nineteen hundred feet. He testified that he was then driving at the slow rate of two to two and one-half miles per hour, and it is admitted that the train was not running to exceed thirty miles per hour. So then when the locomotive and cars were down east of the crossing fifteen hundred feet plaintiff was moving slowly on the country road and towards the crossing at the distance of one hundred to one hundred and twenty-five feet therefrom. If then he had looked east at any time while passing over this one hundred to one hundred and twenty-five feet he could have easily seen the danger into which he was so slowly and so listlessly moving. True it is, that he says that at a point some five hundred feet east of the right of way he stopped, looked and listened and saw no train coming; and further on testifies that he looked and listened when about entering upon the right of way one hundred and fifty to one hundred and seventy-five feet probably from the crossing. But this was not enough. If he had given the matter any thought or attention the plaintiff must have known that at the speed he was traveling a train might after that come in sight and overtake him at the crossing. It was under the circumstances manifestly his duty, acting as a prudent and ordinarily cautious man would, to look out for trains just before placing himself in a position of danger. Whilst passing over that one hundred or one hundred and twenty-five feet he had to the east a most eligible point of observation; and if he neglected this opportunity, and carelessly and thoughtlessly put himself into a place of danger, he was clearly guilty of such contributory negligence as precludes a recovery in this action. 'The court below should have sustained a demurrer to the entire evidence and directed a verdict for the defendant.

Judgment reversed.

All concur.