105 Mo. App. 523 | Mo. Ct. App. | 1904
Main street in the town of Farber, Audrain county, Missouri, runs north'and south. ' The tracks of the defendant railroad company run east and west through said town and cross Main street at right angles. South of the track at-the crossing of Main street, and eight and one-half feet from the main track, is a side track. A sixteen foot crossing constructed of planks was laid over these tracks to form a crossing on
The answer was a general denial and a plea of contributory negligence.
The trial resulted in a verdict and judgment in plaintiff’s favor for fifteen hundred dollars. Defendant appealed.
At the close of plaintiff’s evidence and again at the close of all the evidence, defendant asked peremptory instructions to he given to the jury to find for it. The court refused to give these instructions. The ruling of the court on these instructions is the only error relied upon by defendant for a reversal of the judgment.
The contention is that plaintiff’s own admissions as a witness, as well as the whole evidence, show that plaintiff, as a matter of law, was guilty of negligence that directly contributed to his injury'and for this reason he can not recover. It is conceded that plaintiff’s view to
It is conceded that when the wagon came into view of the engineer, the engine was so close to the wagon that it was impossible to stop it in time to avoid the collision. The evidence on the part of plaintiff tends to show that defendant’s engineer was guilty of negligence in failing to sound the whistle or ring the bell of the engine in the manner required by statute (sec. 1102, R. S. 1899) as he approached the crossing. On account of this negligence, plaintiff was entitled to have his ease submitted to the jury, unless his admissions, or the whole of the evidence, show that he was, as a matter of law, guilty of negligence directly contributing to his injury.
It is insisted that the evidence of Tribue, White, Shotwell and Machem, witnesses for plaintiff, taken in connection with the evidence of plaintiff, shows conclusively that if plaintiff had stopped and listened, he could have heard the engine and tender as they were backing towards the crossing and that he could have seen the engine as he was driving from the crib to the street, if he had looked at that time. To correctly estimate the value of the testimony of these witnesses, their surroundings and their viewpoints, from which they made their observations of the movements of the engine and tender, must be taken into consideration. Just east of the crossing is a cut ending at a cattle guard four hundred feet east of the crossing, and a quarter of a mile or more east of the cattle guard is a coal chute and pond; on the south bank of the pond were growing willows which obstructed the view and prevented a person standing at or near the crib or in Main street east of
Several witnesses testified that as plaintiff’s team trotted out of the field his wagon made considerable noise. The street was a dirt road, comparatively smooth, and the evidence is that the wagon made but little noise after it reached the street. All the evidence in respect to the cornsheller, is that it made considerable noise.
Tribue was fifty feet east of Main .street and within a few feet of the railroad track. His position to see and hear the engine was, for this reason, greatly superior to plaintiff’s and the court is not warranted to conclude, because Tribue heard the engine, that plaintiff would have heard it, if he had stopped and listened. A jury on its own responsibility might arrive at such an. inference, but a court can not. "White was on the south side of the railroad track where there was nothing to obstruct his view', and the fact that he saw the engine from where he stood does not show or tend to show that plaintiff might have heard it, nor does it show that plaintiff recklessly drove upon the track in a trot. Machem saw the engine while at the crib, but after plaintiff had driven away. From this scrap of evidence it is contended that plaintiff could have seen the engine before he got out of the field and that it was his duty to look from that point. It is not affirmatively shown that he could have seen it had he looked before driving out of the field. But suppose he could have done so. Must he be convicted of contributory negligence for failing to look for a train when he had not
As the evidence is all one way that plaintiff could . not have seen the engine had he looked, on account of the obstructions, he can not be convicted of negligence for failing to look unless it was his duty, in the circumstances surrounding him, to have stopped his team, alighted from his wagon, and gone on foot to the crossing to a point where he could have looked to the east down the main track. It is clear if he had done this he would have seen the engine coming toward the crossing and would have avoided the injury by remaining south of the track until the engine had passed over the crossing. Was it his duty to take this extraordinary precaution before attempting to go over the crossing? If so, then plaintiff’s peremptory instruction should have been given. The plaintiff had a right to rely upon the company’s performance of its statutory duty to sound the whistle or ring the bell and thus to warn him of the approach of the engine. Donohue v. Railway, 91 Mo. 357; Weller v. Railway, 120 Mo. 635. And if he was in a position to have heard the whistle or bell, he was not required to exercise the extraordinary precaution-to stop, tie his team, and go forward on foot to a point where he could look and see the engine coming. Kelly
The case of Holwerson v. Railway, 157 Mo. 216, cited and relied upon by defendant, is not in point, for the reason the facts are variant from those in the case at bar. The next Missouri case cited and relied on by defendant is Hook v. Railway, 162 Mo. 569. There were two opinions in that case; one by Robinson, J., concurred in by Sherwood and Marshall, JJ., that the judgment should be reversed; the other opinion by Valliant, J., concurred in by Brace and Gantt, JJ,, held that the judgment should be affirmed. Burgess, J., voted to reverse the judgment and remand the cause. In order to dispose of the case, Robinson, Sherwood and Marshall, JJ.', voted with Burgess, J., that the judgment be reversed and the cause remanded for new trial. Nothing whatever was decided by a maj ority of the court, except that the judgment should be reversed and the cause remanded for new trial, and the case is not an authority on any of the controverted legal propositions discussed in either of the opposing opinions, and is not authority for the proposition that to clear his skirts of negligence as a matter of law, the plaintiff, in the circumstances detailed in this case, was required to get out of his wagon, tie his team and goi on foot to the railroad crossing to see whether or not a train was approaching before attempting to cross the tracks. Circumstances might arise where ordinary prudence would require such a precaution to be taken by one before attempting to cross a railroad track on a public highway, but we do not think the evidence in this case conclusively shows that the plaintiff should have taken this extraordinary precaution, in the circumstances that surrounded him at the time, and the trial court was not authorized to say as a matter of law that it was plaintiff’s duty to do so, but that it was a question of fact for the jury to pass on. We hold, therefore, that the