Hanselman v. St. Louis & Meramec River Railroad
88 Mo. App. 123
| Mo. Ct. App. | 1901
BONE, J.

The facts as detailed by the plaintiff are susceptible of only two constructions with reference to her conduct at the time she crossed the track whereon one of defendant’s cars was approaching the point of crossing. Either she wholly failed to look down the track which was level and straight for a quarter of a mile, and hence, did not see the incoming car; or if she looked at all, before making the crossing, the approaching car had gotten so close that it shut off her vision of the car on the parallel track, which she had just left, wherefore she mistook the coming for the departing car and so ventured upon its tracks. Upon -neither hypothesis can any negligence be imputed to the defendant unless it had been further shown that, after an opportunity to discover plaintiff’s *129peril, the servants of defendant had neglected to use all appliances provided for checking the speed of the car and stopping it before a collision could take place. As the record is entirely bare of any testimony tending to show that it was in the power of the persons in charge of defendant’s car to arrest its speed and stop the train, after they might, by reasonable diligence, have become aware of the perilous position of the plaintiff thus preventing a collision, we are constrained to hold that the accident, so far as defendant is concerned, was a mere mishap, free from negligence on its part, for which no cause of action could arise. And even if we take the most favorable view which the version of the occurrence, given by the plaintiff, affords in her behalf; that- is, that she did look or glance down the track before proceeding to enter upon it and that she observed a car which she supposed was the.one going west-, from which she had just disembarked, and hence, thought she might safely cross the other of the two tracks running alongside, still we are constrained to conclude, that this misadventure on her part, whether occasioned by a defeat of vision or otherwise, could not create a liability against defendant, under the facts shown in this record.

Our conclusion is that the judgment in this case must be reversed.

All concur.