88 Mo. 534 | Mo. | 1885
This action was brought by plaintiff to recover damages for killing a horse and injuring a mule and harness and wagon by defendant’s cars at the crossing of Lydia avenue, over the railroad of defendant, in Kansas City, Missouri. The negligence charged in the petition was a failure to ring the bell within eighty rods of the crossing, and running the train at a speed in excess of six miles per hour, contrary to the city ordinance. The answer was a general denial and a plea of contributory negligence.
Evidence offered by plaintiff for the alleged purpose ■of showing the connection between the failure to ring the bell, and the injury to the wagon and team, and opinions of the witnesses in that behalf were excluded by the court. The court also permitted defendant’s brakeman to testify over plaintiff’s objection to a conversation which he had with the driver of the plaintiff after the accident had happened and the train stopped, to the effect that he was not looking, noticing or thinking about the train. At the close of the plaintiff’s evidence the court refused a demurrer thereto. Under the instructions given and the evidence in the cause the jury found a verdict for defendant, on which judgment was entered, and plaintiff has appealed therefrom to this -court. .
We will first give some of the facts which we understand to be undisputed, and others as to wliich there is a conflict, more or less marked, in the evidence.
There is a-marked conflict in the evidence as to whether the bell was ringing or not, but it is undisputed and conceded that, the speed of the train at the time was in excess of six miles per hour, which was the maximum allowed in the city limits by the city ordinance, the esti
It is also conceded that after passing the first track some one hundred and sixty or one hundred and eighty feet from main track, driver did not stop the team before entering upon the main track and that he did not see the train until the engine struck or was about to strike the team. The evidence also varies somewhat as to whether the team lyas struck by the pilot, or cow catcher, commonly so called, or some portion of the side of the engine. There is evidence to show that if the driver had stopped and listened he could have heard the train a good distance off, which indeed is, we think, an obvious and necessary inference, where there is no evidence that the wind is blowing so as to interfere, and nothing othervvise appeal’s in the circumstances and locality to obstruct the sound. It is also undisputed that plaintiff’s driver and his team were familiar with the crossing, having passed it several times every day for some time in hauling rock, and that he frequently on other occasions stopped the team at and between ■ the various tracks to see if trains were coming, and to allow them to pass, as was also generally and often done by others as occasion required. Having proceeded thus far in the statement of the general facts and features of the case as shown by the evidence, we deem it important and necessary to give a summary of what the witnesses say as to the conduct of the driver as he approached the track, and at the time of the collision and injury to the wagon and team. This involves, we are aware, some repetition and prolixity, perhaps, but this is unavoidable'.
As bearing upon this question, we quote from the
Oliver Coleman, plaintiff’s driver, testified:
‘£ I. was driving a load of rock on Lydia avenue, and drove up to the crossing to come across. I stopped for the switch engine to go across. Lydia avenue is a pretty rough street, considerably travelled. ' I was going north towards the river. * * * The cars on this switch obstructed my view of the train coming in- at that time, and I heard no bell ringing. I was looking ahead when I came along there. I looked up and down the track to see if a train was on the track and couldn ’t see no train. The box cars in front of me prevented me from seeing any.”
On cross examination Coleman testified:
* * * “ i had a rock wagon with no bed on. I was sitting in front on the right hand side, going north. There was a man on the wagon with me. He was on the back end of the wagon. We were not talking. I had a heavy load of rock and was headed right towards the river, but the wagon did not make very much noise. The road is rather rocky and rough and I would have to watch out pretty well. A train on the Narrow Graiige road from Kansas City passed along and I was watching that train, and as soon as the last car got beyond the street I drove right on the Chicago & Alton track. The horse got his front feet over on the first rail when he was struck. It was the beam that struck him as well as I can remember.”
Q. “Now you say five or ten feet before you got to the track, you could see down the track for a half mile about?”
A. “Five or ten feet I could see.”
Q. “By the time you got up within fifteen feet you could see half a mile ? ”
A. “Yes sir.”
Q. “You say the moment the fore feet of the horse
A. “I couldn’t know. I didn’t see until it struck.”
Q. ‘ ‘ But from a point twenty or twenty-five feet you could see up the track for a half a mile ?.”
A. “I could see, but I didn’t see.”
Pepperd, who was a letter carrier, on his duty in that behalf, in that part of the city, was asked, if in the position the driver was he could see the train coming in, and answered, if it had not been for the cars on the side track he could have seen out without any trouble. On crossr examination, he said that when he first saw the drivej? he was about twenty-five or thirty feet from the main track. Another man sat behind him, but he was not close enough to tell whether they were talking. The driver was facing to the northwest and that he did hot notice him change his position ; that at the distance of ten or fifteen feet from the main track he could have seen it some distance, and that he thought the driver was noticing the Narrow Grange train more than anything else.
Sullivan, who was at the west cut on Lydia avenue, testified in part as follows:
Q. “Bo you recollect how he was sitting on the wagon?”
A. “Toward the Chicago & Alton track as it came from the east.”
.Q. “Watchingthe team?”
A. “I see him have the lines in his hands and looking straight ahead of him.”
Q. ‘£ Bid he change his position after crossing the switch until he got on the main track ? ” - A. “I didn’t see him change.” ,
A. “Yes.”
Q. “About how far could he see ? ”
A. “I don’t know.”
Q. “ Could he see one hundred and fifty yards ? ”
A. “I don.’t think he could see over a hundred yards.”
Q.. “Up toward the clearance post a man driving along Lydia avenue at a distance of fifteen or twenty feet from the main line of the Chicago & Alton track, ■could he see about one hundred yards ? ”
A. “Just about.”
On re-examination, the witness thought the cars would not cease to be an obstruction to the view until the*driver was very close to the main track. There is little circumstantial variety in the statements of the other witnesses of the transaction introduced by the plaintiff. Mrs. Sullivan, who was on the hill above the elevator, and Mr. Wood, who was north of all the tracks arid on the side next the river, testified that 'they saw the men on the wagon, that they were not close enough to tell whether they were talking with each other, that as soon as the Narrow Gfauge train passed, the driver of the team drove onto the main track of defendant without stopping, that he was seated on the front end of the Avagon with the lines in his hands, that he was looking straight ahead,- or looking north, and that they did not notice him change his position. . •
The defendant introduced a number of witnesses who saw the transaction, and among them Mrs. Sells, who came from McEvoy’s grocery store beyond and north of the tracks, and saw defendant’s train coming in, and also saw the wagon and team coming towards the track. She says the colored men were laughing and talking and not looking out for the cars; that when she got to the Narrow G-auge track she motioned to them and “hoi
The witness, Cameron, designated where he was by pointing out on the map, and we are, therefore, not able to give his exact position. But he was somewhere between the frog, which is about eighty feet east of the crossing, and the elevator, and was going west towards the wigon. The men were on the front of the wagon facing towards the horse and their backs toward him and partly towards the train as it was coming. He heard the cars coming. He thought they 'would stop. They seemed to be very busy talking, and he stood and watched them. They drove right up to the track. The cars had then got pretty near on them and he then hallooed three or four times. He says he heard Mrs. Sells halloo to them, but don’t think they heard either of them, and that they neither of them changed their positions. That after shouting at them to stop he ran a few steps towards them and the team was then struck, as he thought, by some part of the side of the engine.
Mr. Porrd, also employed at the elevator, testified he -was about four hundred feet'from Lydia avenue crossing, and his attention was attracted by hearing Cameron calling to the men ; that he heard the train coming in, and saw the team which was close, and he judged only four or five feet from the track, and that the train was then very near. He described the driver as sitting on the west side of the wagon between the front and rear wheels with feet projecting over. That his back was towards him and the train, and his face turned northward and towards the city, that he never stopped, and that the team was struck by some portion of the side of the engine.
So far as the men in charge of the train are concerned, the evidence shows that the engineer was seated
The brakeman, Moires, testified that he was on the platform leaning out and that he saw the man just as he drove up to the track, that he didn ’ t think the team got on the track but were struck by the cross-bar or cylinder ; and when he first saw him the engine was about thirty feet distant. This is a statement somewhat extended of the testimony in the case in this behalf, the effect of which we will now proceed to consider.
There is little if anything in the evidence of Mr. or Mrs. Sullivan, or W ood, that Coleman, as he drove towards the track in his wagon loaded with rock, was either looking or listening for the train. When they saw him he was driving along with the lines in his hand, and looking ahead, looking north and towards the river, and they all say they did not see him change his position. In this position) as thus described by them, he could not well see the train until it was well in front or near the crossing. Pepperd, who was the letter carrier, described his attitude and appearance much the same way, except that he says the driver ’ s face was towards the northwest, in which position his back would be partly turned towards the train as it was coming,' and he fur
His statements in this behalf are, we think, inconsistent, and perhaps irreconcilable with other direct and unequivocal statements made on cross-examination. Among other things, he was asked upon cross-examination if at a point twenty-five or thirty feet from the main track he could not see up the track for a half mile, and he answered, ‘ ‘ I could see, but I didn ’ t see. ’' B ut waiving this and other variances in his testimony, and conceding these were matters going to his credibility, and were for the jury, the question is whether as a matter of law we are not bound to deny a right of recovery to the plaintiff in this case. The driver, Coleman, testifies that as he came along between the tracks he looked up and down the track to see if a-train was coming and could see no train. But he also testifies that he could not see out, that the box cars on the side track prevented him from seeing. When he thus says in such connection, that he' looked up and down the track, he manifestly means, we think, that he looked in the direction he knew or sup- „ posed the track to run in that locality, for if he could-not see the train on account of such obstruction he could not see the track for the same reason. The question then is, what did the law require of him in that behalf under such circumstances.
Manifestly, it then devolves on him the duty of lis
It is, we think, somewhat remarkable that this driver and man with him on the wagon should have been the only ones in that locality at the time, who. did not either see or hear the train until it was in the act of striking the team. They were the-only ones desiring and intending to cross the track at that time, and the only ones whose safety was involved and who, we would naturally suppose, would, therefore, be the most vigilant and observant, and most likely to see and hear a train .on the track they were thus intending to cross. They not only failed to either see or hear the train, but they also failed to observe the motions or hear the calls to stop made by the witness, Mrs. Sells. She was north of the track directly in front of them and called to them from the Narrow Gauge track which is only eighteen or twenty feet north of the main track of the defendant, and they were at a distance from the main track which she estimates less than the width or length of the court room. They .also failed to hear the witness, Cameron, when he called to them several times to stop. His shouts attracted the attention of the witness, Porrd, who seems to have been about as far off as the driver and team, and Cameron testified that he heard Mrs. Sells, who was on the opposite side of the team and tracks, so that these men on the wagon, though called on from both ■sides by these parties, nevertheless failed to hear either of them. Other witnesses .for plaintiff say, as he does, that they did not hear the bell, and. that it was not rung, but they all heard the train 'and what else was there to prevent his doing so, if he was listening therefor, unless it was the noise of his wagon whilst going along? We do not understand the law to be, nor do we so hold, that
The evidence offered to show the connection between the failure to ring the bell and the injury to the' wagon and team was properly excluded for the reason that under our later decisions upon this question, such evidence in this class of cases is irrelevant and unnecessary. 82 Mo. 196 ; 81 Mo. 521; 78 Mo. 578 ; 76 Mo. 494 and 498; 83 Mo. 386.
The evidence admitted as to the conversation between the brakeiunn and plaintiff’s'driver was, we think, incompetent under the principle and rule declared by this court in the case of Adams v. Railroad, 74 Mo. 553. But notwithstanding this was error, as we are of opinion that upon all the evidence offered exclusive of the objectionable evidence, the plaintiff was not as a matter of Jaw, entitled to recover, the j udgment was, we think, for the right party and ought not to be disturbed.
For these reasons the judgment of the circuit court
In view of the foregoing opinion may I be permitted to inquire what has become of the rule announced in Petty’ s case, ante, p. 806 ?