124 Mo. 566 | Mo. | 1894
This is an action for damages for the death of plaintiff’s husband, who was struck and killed by one of defendant’s passenger trains, on a public road crossing about two miles west of Monroe City, about noon on the first day of September, 1891. The petition charges that his death was caused by the negli
At the close of the plaintiff’s evidence the defendant demurred to its sufficiency and the court overruled its demurrer. At the close of all the evidence the defendant again demurred to the evidence and the demurrer being sustained, the plaintiff took a nonsuit with leave to move to set the same aside, and the court having refused to set the same aside upon motion duly made thereafter, the plaintiff brings the case here by writ of error.
I. There was substantial evidence tending to prove a failure by defendant’s servants managing the train to give the statutory signals required on its approach to the crossing on which the plaintiff was killed, and the only theory upon which the court’s action in taking the case from the jury can be sustained, is that the evidence disclosed the fact that the deceased was guilty of negligence which contributed directly to his death.
It appears from the evidence that the deceased was a farmer aged about sixty-four years, somewhat hard of hearing, who lived about five miles southwest of the crossing, on which he was killed, and which was on the road he usually traveled from his home to Monroe City. At the crossing the railroad runs east and west, and
The railroad track from the crossing to Monroe City is on a straight line. At a point about one half' mile east of the crossing, the track passes over a sag or drain, towards which the' surface of the ground inclines from the east and west. A train in passing 1 west from Monroe City goes down grade to this point, and thence up grade toward the crossing until it reaches a point variously estimated by the witnesses to. be from one hundred feet to two hundred yards from the crossing, thence upon a level to the crossing. In the public road, and about the middle thereof, and south of the track about fifteen, twenty, twenty-five or thirty feet there was a mudhole in which, prior to the accident, a wagon loaded with wheat had broken down. On the east side of the public road, on the right of way, and extending from about six feet from the south rail of the track to the railroad fence'on the south side of the right of way, there was standing prairie grass about'seven feet high, extending eastwardly from the public road and parallel with the railroad track an indefinite distance; and immediately south of the right of way on which the grass on the east side of the public road was standing, was a corn field.
As the deceased with his team and load of wood traveled slowly toward the crossing his view of the railroad track and of any train that might have been running thereon east of him, from Monroe City, was
If, as he started up the slight grade to the crossing,
In order to answer this question, the first fact to be determined is the distance of the train from the crossing at the time that it thus became the imperative duty of the deceased to look for it. The engine must have struck about the front wheels of the wagon, as the deceased was almost instantly killed, and the body cast to the south side of the road. He must have been traveling about three or three and a half miles an hour. The train was traveling ten times as fast, so that when his eyes were fifteen, twenty, twenty-five or thirty feet south of the track, as the case may. have been, the train must have been within a distance of one hundred and fifty, to three hundred feet of the crossing. Could he then, by turning his eyes in that direction, have seen the train? The spring seat upon which he was sitting was from five feet and a half to six feet from the ground, his eyes must have been at least two feet higher, the surface of the high grass which then intervened between him and the train was seven feet. The train was either on a level or near it on the descending grade of the track, which could not have been appreciably greater than the descending grade, of the surface of the grass, towards the drain over which the track
It will thus be seen that it was a physical impossibility for the deceased to have failed to see the approaching train, if he had looked in that direction, as it was his duty to do, while yet in a place of safety, and before entering upon the line of danger. Had he done so, there can be no question that he could, and would, have stopped his team until the train passed, and then crossed over in safety. But for some unexplained reason he failed to do so. And thus it is, though 4he defendant may have been negligent in failing to give the signals for the crossing, and in permitting the high grass to be upon its right of way, yet the deceased having lost his life through his own negligence in failing to discharge the duty imposed upon him by law, in his situation, the plaintiff can not recover for his death. This conclusion we find to be irresistible after a very careful examination of all the evidence, in the consideration of which every reasonable inference in favor of the plaintiff has been made. Consequently we can not find that the trial court committed error in sustaining the demurrer to the evidence, and in refusing to set aside the nonsuit.
II. It is suggested in brief of counsel, for the first ' time in this court, that the answer is too general in failing to charge any particular act of contributory negligence. No objection to the answer was made in the court below, and it is too late to raise that objection here. Haynes v. Town of Trenton, 123 Mo. 326. The judgment of the circuit court is affirmed.