*1 APPEAL REPORTS, Ry. L. & S. F. Co. Maher v. St. That in- could not recover.
timе and under the issues properly refused, was the matter in- struction since correctly by the covered instruc- terstate commerce was given plaintiff. tion the instance of
The the effect second refused instruction was to injury by if was accident, received caused mis- negligence of chance or and without the misadventure, plaintiff plaintiff was not defendant, either entitled properly think, to recover. refused. we was That, third refused to the effect that The instruction plaintiff not that if a volunteer he could recover. properly .That was refused. fourth was as to the measure
The instruction by damages. correctly As that was covered the instruc- given plaintiff, properly tion at the instance of this refused.
Finding judg- no case, reversible error ment of so ordered. the Circuit is affirmed. It is Court Becker, J., P. and concur.
Allen, J., Respondent, MARY T. HOLTKAMP, v. CHICAGO & QUINCY BURLINGTON RAILROAD COM- Appellant. PANY, Appeals. Opinion 8,
St. Louis Court of Filed November 1921. Crossing Contributory Negligence: RAILROADS: Accident: Duty 1. person goes upon to Look and Rule Stated. Listen: A rail- who a ordinary safety road must exercise care for own ordinary prudence ap- act with ascertain whether a train is discharge proaching injury, duty a failure avoid negligence as a matter law. - n : - n : Abrogated by -: -: Not 2. Ordinance. engineer a train of defendant’s prescribed by city ordinance, rate of excess exercising duty ordinary absolve from the not deceased did safety prudence for his before undertook to cross own a rail- precaution track, failed to take the to look where road TERM,
OCTOBER & B. venturing upon duty tbe as before was bis and listen doing do, stopped when he could have seen the train so passed, until thе accident would have *2 his truck and been negligence contributory avoided, proximate his own held cause his death. -: to Look -: -: -: Failure and
3. Listen: Barring Recovery. Negligence duty of the deceased look performed by looking only approaching train was not for an point danger point, and' at which his from the 330 feet right obstructed; neither did he have the was somewhat view engineer obligation upon put to observe full reliance ordinary ordinance, speed care himself fail to exercise and look, safety, he either did not or if and for his own where attempted carelessly, looked, he saw and heeded not what contributory guilty across the he was the train to beat right precluding to recover. his Appeal Common Pleas of Hannibal Court of from the County. Ragland, Judge. T. William
Marion —Hon. Reversed. George Dulany A. Mahan Mahan Nelson,
H. J.
appellant.
(1)
have been
should
evidence
The demurrer
Holtkamp
Henry
deliberately drove
T.
because
sustained
upon
diagonally
the tracks of the
truck
his automobile
oncoming
immediately
company
in front of an
defendant
plaintiff’s
engine
evidence
when all of
train of cars
uninterrupted
an unobstructed
had
shows
direction
westward
,the
view of defendant’s tracks
for a distance
which
train was
from
from 800to
& Francisco
Laun v.
Louis San
1314feet.
St.
R.
Pacific R.
Co.,
Green v. Missouri
563;
R.
Mo.
R.
216
Pope
Mo.
R. R.
242
Co.,
v. Wabash
131;
192 Mo.
Co.,
contributory neg
guilty Plaintiff deceased was
232.
recovery
ligence
case. Col
bar his
that would
City,
Kansas
Kuhlman,
591; Reeves v.
243 Mo.
lett v.
Chicago
Al
as a
defense and exoneratés
liability.
defendant from
Burnett v. Railroad, 172 Mo.
App. 51; Keele v.
Mo.
Railroad,
78;
258
v.
Laun
Rail
road,
547; Watson v. Railroad,
overruled the trial court. Strauehon v. Met. Co., 232 Mo. v. 587; Lueders Railroad, 253 Mo.' 97; Powers v. 202 Railroad, Mo. 267; Riska v. 180 Mo. Railroad, Campbell 168; v. Railroad, 175 Mo. 161; Woodward v. App. 152 Railroad, App. Mo. Moore 469; v. Railroad, 157 Mo. App. 53; Jackson v. Murray 171 Mo. Railroad, 430; App. v. Transit Co., 108 Mо. v. 501; Heintz Transit Co., App. 115 Mo. 667; Yoakum Railroad, v. 199 S.' W. 263; Swigart App. v. Lusk, Receiver Railroad, 196 Mo. 471; App. Hanna v. Railroad, 178 Mo. 281; v. Underwood App. 182 Mo. Railroad, 252; Underwood v. Railroad, App. (2) 190 Mo. appellant by 407. It conceded is that at the the train struck deceased at the time cross ing, covering quite reaching a distance before said crossing, it was from 18 to 35 miles hour, 1921, TERM, 319
OCTOBER. Ry.Q& v. B. largely permitted which was in excess of the Hannibal, (a) City the ordinance These facts clearly negligence contributory jury made the issue question. App. Hanna v. 178 Mo. David Railroad, 281; App. son v. 164 Mo. v. 701; Rail Underwood Railroad, App. road, 182: Strauchon 252; Mo. v. 232 Mo. Railroad, supra 587; Authorities, Authorities under 1; infra, (b). (b) attempt under deceased cross emergency front the train was an act of which amount judgment contributory an ed most to error of not negligence Railway, as a v. matter law. Kleiber 107 Long Mo. Donohue v. 240; Railroad, 91 Mo. v. 357; Ry. App. Feeny Mo. Pac. Mo. Co., 115 v. 489; Wabash App. Depot Co., Railroad 420; 123 Mo. Ransom v. & Express App. Byars 142 Mo. v. Co’s., 361; Railroad, App. App. 161 Mo. 698; Railroad, Davidson v. 164 Mo. App. v. 701; Jackson Mo. Railroad, 430; 171 Hanna App. v. 178 Mo. Railroad, Underwood v. 281; Railroad, App. App. 182 Mo. v. 252; 190 Mo. Railroad, Underwood Swigart App. v. 407; Lusk, Railroad, Mo. Receiver (c) Contributory prevent negligence 471. which will recovery negligence be must such as to form the direct, casualty. producing and efficient There canse no such in the case at bar. v. Scar Howard ritt Est. 402; 267 Mo. Oates Mo. Co., Railroad, n v. Met. 232 Mo. 548; Co., Strauchon St. 587. April, day Henry the 3rd C.—On
BRUERE, *4 by T. deceased, was struck and killed defend- Holtkamp, crossing, public City a in ant’s at street of train, plaintiff, brought widow, Hannibal, Missouri; damages prоvisions of action to recover under the compensatory death act. plaintiff judgment in a for
The trial five resulted appealed’. thousand from which dollars defendant petition negligence charged running The in the is speed provided of train a rate in excess said at of by thirty city miles rate of ordinance, to-wit, the provides rate of hour, a six miles while the ordinance per hour. REPORTS, APPEAL grounds negligence changes but petition of other
The reason that for the here, not be considered these need they being by plaintiff, sub- casе were abandoned running negligence upon solely in defendant’s mitted speed. in excess of the ordinance its general denial the defendant a of The answer plea the deceased death of due further that the and a solely attempting negligence in carelessness to his looking or railroad track without to cross approach listening on said when of for the trains listening looking he could have by have seen or he could haye approach train in time to remained of said heard n safety. place away from said track in the defen- evidence case At of all the the close interposed the court to it which over- a demurrer dant ruled, exceptions
proper being time. taken appeal by question whether raised is sole The directed a verdict have the trial court should or not ground that de- defendant, on the in favor of the negligence precluding guilty contributory ceased was plaintiff’s right to recover. question necessitates a re consideration
The under given trial. The at the evidence1 view the running in excess of оr its train of the defendant the. evidence. established dinance prove following tended evidence further The bright day three- on accident occurred facts: The April thirty crossing 3, 1917, at the on afternoon o’clock, Maple,avenue track over railroad of defendant’s City The*defendant main- Missouri. Hannibal, in the city. These on Collier street said tains four tracks along Collier street. run on and east and west tracks twenty pass each trains said fifteen Prom Draper public day. Maple, Lemon and are Ledford, , city north and south and intеr- in said streets line of Ledford street tracks. east sect defendant’s west of the fourteen feet west hundred and is three eight hundred Lemon street line of avenue. Draper Maple. eighty-six west street is feet west *5 TERM, OCTOBER. 1921. twenty
Lemon and about thirteen hundred and feet from Maple avenue. Arch street is next street west Draper and Lindell street the next street of Arch. west Ledford street with Collier connects street at south angle thirty degrees, line of an Collier and at of about being the west line of Ledford street extended the west .Maple line of Collier strеet. avenue intersection its with Collier street not extend south of does Collier portion street. The traveled of Collier street is fifteen immediately feet wide and is located south of defend- parallel City ant’s track and The Bluff therewith. Shoe Company building is located on the southwest corner of Maple avenue Collier and street on the and fronts south side of Collier street. Car The Hannibal Wheel Com- pany Maple is located on the northwest comer avenue and Collier street. is mentioned in the There record sixty a shed. This shеd is located about feet west of line west of Ledford street about seven feei south of the continuation south line of Collier just street. There is shed -another located west of Lemon according plat street. shed, This to the introduced in high square. six evidence, is feet ten feet about straight The railroad track runs level from westwardly avenue to a west of Lemon street, distance of over nine hundred feet. driving at the deceased time of accident delivery Company truck for the Fletcher Tea Han- of. working capaсity
nibal. He for said concern in the delivery employed and had man, been so four just prior five months to his death. He was familiar with the railroad avenue, over as work every called him over the same about once two weeks. driving The truck which deceased was a Ford truck, body, glasses with a covered two with the rear glasses opposite on each the seat; side the chauffeur . seat was located on the left hand side. day
theOn of the accident north- the deceased drove east on Ledford street to the intersection of Collier and along Ledford streets and then drove east Collier paiallel and south of and with defendant’s railroad *6 APPEAL REPORTS,
Holtkamp O., v. B. & Co. thirty to distance of hundred and feet a three tracks, Maple and Collier street. He the intersection avenue of proceeded Maple then on avenue and turned north in or main front of drive an defendant’s south across oncoming passenger train on' said eastbound striking and killed. de- was struck After track, and consisting engine of .an and seven train, ceased the standing stopped slight- with east coach coaches, was ly crossing. of avenue west engineer, Smiley, a
B. F. a civil and witness for personal plaintiff, he testified that made observations premises point surrounding property at the way Ledford on the where street comes into traveled twenty feet south south rail of de- street, Collier point standing and that said he line, fendant’s main approaching from west see a train on said could feet; a of three and that as he track distance hundred rapidly got until track view increased closer Draper he street a distancе of over one thous- could see turned and feet. He further testified that after a traveler Ledford east on Collier street there from street was' nothing to obstruct the traveler’s view railroad Draper as far as street farther. tracks to west Mr. another witness testified Fletcher, for plaintiff, point a observations, he made the center that some Ledford street and on the south line Collier street point person a truck, and that that seated riding, similar to one in which the deceased could see from the west on defendant’s- The hundred feet. witness-' tracks a- distance of three further testified that seated point at the in- said truck an dicated he had unobstructed view looking just past point to a street. track west Lemon that the distance be- The witness stated estimated Lemon to be three hun- tween Ledford street and street map, according to feet. from the- distance, dred point fifty five indicated to hundred and Lemon street feet. Witness he-made similar observations after said turning--his car street that from east on Collier TERM,
OCTOBER Ry.Q. point uninterrupted an had view and could de- see through glass fendant’s track back truck a eight distance seven hundred or feet; hundred looking from a on Collier street in front of the City Factory Bluff past Shoe see could defendant’s tracks just
Lemon Arch Lemon; between lying ninety after the accident he found deceased about feet east of the avenue and about fifteen feet north of the main or south track a little south of the truck. *7 plaintiff, E. on
Charles Medcalf, behalf the testi- standing fied that the time of the accident he was about twenty-five Maple one hundred and crossing feet east of аvenue eight and about seven or feet north the of main talking track; that he was ato friend when he heard crossing whistle close to and turned the around and saw just coming up said truck turning, in the act of on the engine forty fifty when the was about or feet crossing; from the the train struck the hind wheel eighty ninety of the truck and hurled it or east; feet that the deceased was the thrown out of truck and roll- within, beyond twenty ed fifteen or the- truck and feet twenty-five standing; feet of where witness was twenty when first observed the train was twenty-five or hour. miles an plaintiff,
Malcolm Jackson, a witness for testified standing Maple that he was feet north of the east avenue about fifteen track.
south He further testified as follows: jury you
“Q. Tell the what saw? A. Well, started to was a train railroad, there whistled for foundry up the—at there, he run over the rail- crossing kindy up, got road there, slowed as he about why way crossing half of hit railroad train him “Q. Now how close the train down you crossing avenue when first it? A. saw It did not ways being but lack little there. many Twenty or.thirty,
“Q. About how .feet? A. something feet, like that. REPORTS, APPEAL MISSOURI Q. sir. Yes, A. it whistled?
"Q. Was it there when you A. that? Did hear it whistle before "Q. up crossing. other it whistled Yes,
Cross Examination up up the road "Q. About far the track how you first saw it? A. when automobile rather, up past factory getting there, about the shoe little well, gate gap fence. there, there to that or that say you that would be far in feet would How "Q. up crossing A. avenue? road from from the thirty judge I feet. about " forty you thirty or feet And train some you say A. sir. Yes, that? when saw Court: yon you first saw
"Q. Did see the when A. sir. Yes, automobile? you thirty the automobile feet
"Q. When saw Right crossing train? A. at the where was the foundry hit railroad cross there, time he wheel got way ing, the railroad time about half further testifiеd the train was down to him.” Witness *8 thirty-five running hour. that the train was an miles plaintiff,-was following Roach, Richard a witness for at time the accident. the an auto-truck the deceased northeastwardly on Led- Roach testified that he drove twenty thirty approached or feet ford- within and as he driving the he saw deceased Fletcher Collier street point on at a about one street, truck east Collier and fifty east of Ledford hundred and or two hundred feet just he where Led- street; that before the reached coming engine the ford he heard intersects Collier street approaching from the and west and saw the train looked fifty hundred feet west two hundred and or three about up on track; he drove east Collier back the that then tracks one hundred street railroad about and south the passed de- him; feet that time the when the train at Maple fifty one feet ave- ceased was hundred and from crossing; passed the train him drove nue that after TERM.
OCTOBER Holtkamp
“twenty-five Mr. that is when further and feet He it him.” further and struck run in of the train front just it before he heard the train whistle testified crossing. forty He feet west of the аbout hit truck twenty- twenty speed or of the estimated the hour. miles an five plaintiff, he was for the testified,
Mr. Robinson crossing yards first standing sixty southeast twenty from the feet it was fifteen the train when saw crossing right moving on when was saw the truck twenty tc. from the train was and that track; twenty-five miles an hour. eye-witnesses to the ac- no other
Plaintiff introduced plaintiff to for the as testified cident. Other witnesses speed, speed testimony as to the train, the ranged of the whose thirty-five twenty hour. miles to Campbell, part B. de- defendant, J. On train, charge engineer testified that of the fеndant’s passing “just lemon street I over about time was delivery I noticed avenue, I for whistled right coming hundred feet advance in about one truck (also street) Mungor Ledford called me come off street opposite got'right parallel this I and as down the semaphore Mungor blew the whis- located there I crossing avenue; tle whistle blew the road driving right me, ahead of man in truck the automobile just time, gaining him that as I on think I was little again, crossing got the road whistle I there I sounded might get thinking to track too over so close road be thought engine I never about far strike truck; his undertaking driving cross, as man down there and up got just he come to the I as him, closer thought machine, kindy I slacked forge going stop, ahead seemed machine forged again, just I the .moment that machine ahead grabbed gave long whistle, I one blast whistle *9 engine blowing I still when struck machine. was the directly engine right in front The struck his machine driving the across the back cater-corned wheel, was APPEAL REPORTS, diagonal east, Ms macMne a little across headed track, the track.” that de- The further testified when witness crossing ceased turn avenue started to make the at running forty his train the was feet from eighteen twenty or an hour. miles
Fred Kansteiner, defendant, the witness eye an to testified that witness the accident. He he was walking about west on Collier blocks oast of three and saw the train come into around avenue, view the curve street; at Arch continued west on Col- lier and an noticed come on to Collier automobile street from Ledford noticed the train and street; auto- they mobile and that it to him were seemed abreast; about he reached when Tenth strеet he speak turned his a friend, head and as he looked back he the air full of what saw debris and looked like a clothing coming bundle of down the which after- proved wards be deceased. speed estimated the of the truck
Witnesses at ten per According testimony truck, miles hour.' speed stopped when at driven said could inside of two be or three feet. City
The ordinance of Hannibal was intro- provides engine duced which that “no locomotive city place any train of cars shall run in this at a greater per than six miles hour.” foregoing summary testimony pre- fairly
The question contributory negligence. sents on the case speed pre- of the train in excess of the city negligence scribed ordinance amounted to part notwithstanding on of the defendant, se but question violation of the ordinance the whether the de- contributory negligence, guilty precluding ceased plaintiff's right to recover, still remains. light In the facts this case uncontradicted indulge presumption
we cannot in the that the deceased, accident, time of the exercise ordi- nary presumption only care. The in a case obtains where there is an absence of evidence as to the fact of due care; this is not a case. such *10 1921,
OCTOBER TERM, 327 C., Ry. Holtkamp B. Q. v. & Co.
It will seen from be the uncontradicted as facts, in shown this after case, deceased, that the from drove any Ledford street on Collier east could at time approach have seen the train from the west on defend- ant’s south a distance of over a feet thousand running upon straight a and unobstructed back, track. driving Maple
While east on Collier street to avenuе crossing, a distance three hundred and fourteen feet, parallel traveling deceased was with and close to running. track on which the train was theAll evidence precaution shows had taken to look towards yet place safety, the west, while in a and before driv- ing duty across the track, do, as was his he could oncoming have seen the train but a short distance from him. There was no obstruction whatever the view westwardly from avenue a distance of over thir- teen hundred feet.
The uncontradicted evidence is that when the deceas- ed reached the intersection of avenue and Collier street he then but a few feet from south approaching plainly track and the train then visible forty crossing; stoppnig feet from the without directly and drove north track turned across the in front rapidly moving killed.. prudence required dictates common de- driving crossing, before truck on railroad ceased, approach to look and listen a train. It is the person goes upon law of this a who a settled State ordinary care railroad must exercise for his prudеnce safety ordinary own and act with to ascertain injury a whether train is to avoid and discharge negligence duty is as a matter failure of law. the case Schmidt v. J., Railroad, Gantt,
Mo. l. c. the law follows: states as person who “It a settled law of this State goes upon proposes to it, a railroad track or cross must 208 MISSOURI APPEAL REPORTS, eyes injury. neg
use his and ears to avoid And while a regulations regard lect of to the of trains part railway amounts to company, on the law of the' pedestrians this does not absolve and others propose who cross tracks exercise or dinary years Every intelligent person *11 care. who has arrived at presumed is know that dan is discretion, gerous upon pas to be a railroad track when trains are sing to crossing expected fro, when one, is vigilant approach be watchful of the of the locomo vigilance tive. negligence The failure to exercise such is] " [Harlan se. v. 64 Railroad, Mo. 482 upon entering law that “The traveler, a before a railroad track, must observe some caution for his own safety, negligence and that failure a to do so will be such preclude recovery injury, as will in case of is as well settled in this State as is the law that a railroad company guilty negligence is a train with- observing precaution required out by the reasonable precaution or law ordinance. The measure of to be ob- depends by upon served a traveler often the circum- surroundings. general stances and The rule is that in knowingly approaching track of a railroad, must sight hearing use his sense of or to ascertain if there danger. be If the view so obstructed that he cannot carefully may see, he should listen. The circumstances require not that he both look and but listen, common prudence requires that he do either one or the other, and a negligence failure to do so renders act in law. contributory negligence changed The rule of is not abrogated by imposing reason of a statute or ordinance duty injury the resulted. on account violation which the
[Weller
653.]
v. Railroad, 120 Mo.
The stat-
persons
public
ute does not absolve
rail-
way prudence
exercising
from
common
to аvoid
danger, nor
responsibility
shift the
to another should
injury
[Kenney
ensue from the failure to exercise it.
284]”
v.
105 Mo.
Railroad,
[See, also, Alexander v. St.
Ry.
Louis-San
Co.,
Francisco
233 S. W.
Illi-
48; Evans v.
1921,
TERM,
OCTOBER
329
Ry.Q.
v.
Cent. R.
233 S.
Co.,
nois
Morrow v.
233
399;
Hines,
W.
S.
W.
Laun v.
494;
Railroad,
ning pre- train at a rate of excess city scribed ordinance did not absolve the deceased duty exercising ordinary prudence for his own *12 safety before undertook to the track. If the cross precaution deceased had taken the to listen, and duty look, upon venturing before do, the as was his to stopped he could the have seen train and truck until his passed, the train and this accident have would been contributory negligence avoided. His own the was proximate of his cause death.
Respondent, pre- however, contends “that the law that when the sumes deceased reaсhed the line of inter- being section between streets, Ledford and Collier then point on the south line of Collier he at that looked train on track; west that at and from point coming that he could have a train seen from the west only a distance three hundred or three hundred fifty having feet; that not seen the train at point, right rely presumption the the deceased had to on the any might coming if train, one be from the west at a where distance it, could not see would not violate speed the ordinance; under this situation the de- right ceasеd had the to assume, assume, and doubtless did proceed safety pass he could to the REPORTS, APPEAL Ry.Q. any over the same before train conld reach said cross- ’’ ing. any There no evidence that looked at deceased point presume for the train. Nor can that he we looked point at the counsel, indicated for the reason said point away dang’er was far zone. from the assuming point,
But that deceased looked at said duty per- to his look for train not only point by looking formed from a on Ledford street, thirty danger pоint, three hundred and feet from the and which his was somewhat view obstructed. right put upon He did not have the to full reliance obligation speed engineer observe ordinance, ordinary and himself fail to care for exercise his own safety. eyes blindly He not close could his and ears and looking, venture the track across without and then shift consequence .neglect own on the his defendant. duty The deceased was not relieved of all look and lis- approach ten for the of the train because of the existence limiting of thе the rate of ordinance train to six miles hour. testimony
It clear from the this case that the deceased did- look either not or if looked he heeded carelessly attempted not he saw what beat the guilty track; across the either event he contrib- utory right precluding to recover. conclusion, is that court therefore,
Our should interposed by demurrer, have sustained defend- ant, evidence. judgment
The commissioner recomménds that Hannibal Court of Common Pleas be reversed. *13 opinion PER of Bruere, CURIAM:—The adopted opinion as the of the court. judgment the' Hannibal Court of Common accordingly Pleas is reversed. J., P.
Allen, not J., and Becker, J., Daues, concur. sitting.