| Mo. | Apr 15, 1891
Lead Opinion
All the counts of -the petition may be treated together, as the substantial issues arising upon each, are the same.
I. It is claimed by defendant that plaintiff was guilty of such contributory negligence in the circumstances as required the trial court to instruct the jury to find for the defendant.
The statute requiring a certain signal of bell or whistle, by an engine approaching a crossing of any public road, declares that, in event of failure to give such signal, the railway corporation shall be liable “for all damages which any person may hereafter sustain at such crossing when such bell shall not be rung or such whistle sounded as required by this section; 'provided, however, that nothing herein contained shall preclude the corporation sued from showing that the failure to ring such bell or sound such whistle was not the cause of such injury.” R. S. 1889, sec. 2608; Sess. Acts, 1881, p. 79.
This section shifts the burden of proof to the defendant as to the cause of such injuries as those here shown, sustained at public crossings, when no statutory signal has been given. But it does not change the established rule that if the plaintiff’s proof, in any case of this nature, discloses that the damages, for which redress is sought, resulted from another cause than the negligence of defendant in omitting the required danger signal (for example from plaintiff’s own want of ordinary care), there can be no recovery.
• The statute does not absolve persons approaching a public railway crossing, from exercising common prudence to avoid danger nor shift the responsibility to another,'should injury ensue from a failure to exercise it.
In determining the issue of contributory negligence there is no inflexible formula to apply to all cases.
The case before us, in its present form, calls for an expression of opinion whether the plaintiff’s conduct in approaching and crossing the track was negligent as a matter of law. To warrant us in reversing the finding (by the trial court) that he was not, we must be satisfied that no other conclusion than that of plaintiff’s negligence in the premises is fairly deducible from the evidence, giving him the benefit .of every reasonable inference that may be drawn from it. Huhn v. Railroad (1877), 92 Mo. 440" court="Mo." date_filed="1887-04-15" href="https://app.midpage.ai/document/huhn-v-missouri-pacific-railway-co-8009047?utm_source=webapp" opinion_id="8009047">92 Mo. 440; Mauerman v. Siemerts (1879), 71 Mo. 101" court="Mo." date_filed="1879-10-15" href="https://app.midpage.ai/document/mauerman-v-siemerts-8006399?utm_source=webapp" opinion_id="8006399">71 Mo. 101.
The particulars of plaintiff’s action and the appearance of the vicinity are fully set forth in the foregoing statement of the case, and need not be repeated.
It will be noted that the plaintiff stopped twice to listen for a' train; first, at a distance of one hundred and twenty feet, and, afterwards, at ninety feet from the track. He heard nothing. Assuming the truth of his evidence (as the present status of the litigation requires ), it is obvious that, had the signal been given by defendant, he would have been warned of the coming train in time to escape harm. His course, after his second stop, lay along a line which did not permit a view of a train until very near the track; according to his personal evidence until within a few feet of it, and, according to other evidence on his behalf, until twenty-one feet from it. When he, seated in the buggy, drawn by a double team, was at that distance, the horses necessarily were much closer to (probably within ten feet of) the rails, and moving forward at a brisk walk. He turned toward the west looking for a train, and, seeing none, turned eastward and discovered the engine close upon him. His horses were then nearly
He was under no legal obligation to shape his action on the theory that the defendant would disregard the-plain requirements of law respecting a signal of its coming train. He was confronted with peculiar conditions, shown by the topography of the crossing, and was bound to use such care as would ordinarily be-exercised by an intelligent man amid such surroundings. Whether he did so or not, was a question of fact on the case here made. Johnson v. Railroad (1883), 77 Mo. 546" court="Mo." date_filed="1883-04-15" href="https://app.midpage.ai/document/johnson-v-chicago-rock-island--pacific-railway-co-8007355?utm_source=webapp" opinion_id="8007355">77 Mo. 546 ; Kellogg v. Railroad (1879), 79 N.Y. 72" court="NY" date_filed="1879-11-25" href="https://app.midpage.ai/document/kellogg-v-new-york-central--hudson-river-railroad-5478653?utm_source=webapp" opinion_id="5478653">79 N. Y. 72; Greany v. Railroad (1886), 101 N.Y. 419" court="NY" date_filed="1886-03-02" href="https://app.midpage.ai/document/greany-v--long-island-railroad-co-3613150?utm_source=webapp" opinion_id="3613150">101 N. Y. 419; Davis v. New York Cent., etc., Co. (1872), 47 N.Y. 400" court="NY" date_filed="1872-01-30" href="https://app.midpage.ai/document/davis-v--nyc-and-hrrr-co-3581462?utm_source=webapp" opinion_id="3581462">47 N. Y. 400 ; Randall v. Railroad (1882), 132 Mass. 269" court="Mass." date_filed="1882-03-02" href="https://app.midpage.ai/document/randall-v-connecticut-river-railroad-6420532?utm_source=webapp" opinion_id="6420532">132 Mass. 269 ; Tyler v. Railroad (1884), 137 Mass. 238" court="Mass." date_filed="1884-05-10" href="https://app.midpage.ai/document/tyler-v-new-york--new-england-railroad-6421332?utm_source=webapp" opinion_id="6421332">137 Mass. 238. The trial court did not err in refusing to give an instruction that plaintiff could not recover.
II. By one of the instructions (number 1) given for plaintiff, against defendant’s exception, the court declared the law to be that if the jury found the engine-bell was not duly rung (as required by the statute), “and that the steam-whistle attached to said engine was not sounded eighty rods from said crossing,” etc., then
It is claimed that this is erroneous as requiring the whistle to be sounded exactly eighty rods from the crossing whereas the statute reads, “at least eighty rods from the place where the railroad shall cross,” etc. Sess. Acts, 1881, p. 79.
The giving of warning by either bell or whistle will answer the demand of the law. Van Note v. Railroad ( 1879), 70 Mo. 641" court="Mo." date_filed="1879-10-15" href="https://app.midpage.ai/document/van-note-v-hannibal--st-joseph-railroad-8006365?utm_source=webapp" opinion_id="8006365">70 Mo. 641. If there was evidence before us of a compliance with the statute, in regard to whistling, we should be obliged to consider the point above noted. But there is not. Defendant’s locomotive engineer testified that he sounded the whistle “about eighty rods east of the crossing,” and others on the same side corroborated him ; but neither he nor any witness for defendant asserted that the whistle had been thereafter sounded at intervals until reaching the crossing. On that point there is a complete blank in the evidence.
On plaintiff’s part there was considerable testimony that no signal of bell or whistle was given. On the other hand there is abundant evidence for defendant, showing the proper ringing of the bell. On that point the instruction mentioned is not challenged. But defendant’s own testimony has no tendency to show that the whistle was sounded as prescribed, and, therefore, the instruction, in the particular mentioned, cannot furnish a ground for reversal, having regard to the statutes which direct us to disregard irregularities in the proceedings “which shall not affect the substantial rights of the adverse party” (R. S. 1889, sec. 2100), and not to reverse a judgment for any error unless we believe it is one “materially affecting the merits of the action.” R. S. 1889, sec. 2303.
III. Defendant complains of the refusal of the trial court to instruct as asked in the refused requests, numbered 4 and 8 (copied in the statement). These declarations are framed with the evident purpose of
The true legal rule is that one approaching a railway crossing must exercise reasonable and ordinary prudence to avoid the danger necessarily to be apprehended there. It may often be that a failure to look and listen for a coming train will be such obvious negligence as to warrant a court in so declaring, but circumstances may exist in which the failure to look and listen cannot justly be so regarded. No procrustean standard of negligence, predicated on a failure to look and listen, exists.
For example, the refused instruction, numbered 4, seeks to declare it conclusive negligence, if plaintiff, in passing over the ninety feet between his last stop and the track, neglected to look and listen for a train, whereas his evidence was that “you cannot see a train from the point where I last stopped, nor until you get near the track.”
The refused instruction, numbered 8, is faulty in several particulars, chiefly in calling for findings, which there was no evidence to support, of plaintiff’s mental impressions in approaching the crossing. It need not be further discussed.
IV. The modification made in defendant’s request, numbered 12¾ (given by the court as instruction B), consisted merely in the elimination of the word “ constantly” as applied to plaintiff’s duty to use his eyes and ears in approaching the track. Plaintiff
The foregoing remarks dispose of all the assignments of error which appear to merit notice.
The judgment is affirmed;
Rehearing
ON REHEARING IN BANC.
This cause has been thoroughly reargued before the court in banc, and the conclusion we have reached will be announced in a few words.
Defendant’s chief point now is that the case should not have been submitted to the jury, the plaintiff’s conduct being claimed as negligent as a matter of law.
A majority of the court in banc adhere to the conclusion reached and the views expressed in the opinion of division number 1 on this point. To what was then said we may add that the testimony of defendant’s engineer (in charge of the locomotive that struck plaintiff’s buggy) appears to corroborate plaintiff’s witnesses in their statement of the difficulty of observing a coming train from plaintiff’s position.
The engineer said: “When we got almost to the road crossing, I saw a team coming right on the rails, the horses’ forefeet just inside the north rail. The horses shied off to one side. I saw a man stick his head out of the buggy, look up, and then struck his horses with the lines, or may be a whip. The engine caught the buggy. When I first saw them we were about thirty feet from crossing, and were running about twenty-five miles per hour.” And, on cross-examination, he added: “I was looking forward, out of my cab window, on the
Prom this statement of the engineer, whose position in the cab placed him considerably above the level of plaintiff ’ s buggy, it is evident that the surroundings of the point of crossing are very unfavorable to a view of the track or of the highway from each other. If the engineer, on the lookout, could not observe plaintiff’s buggy till the engine was within thirty feet of the crossing, it is a mere matter of easy calculation to show that plaintiff’s team must then have been within seven or eight feet of the rails. He was moving at four or five miles an hour. At the higher rate, he would cover a little less than seven and one-half feet each second, while the engine (at the rate of twenty-five miles an hour) would pass over the thirty intervening feet in five-sixths of a second. So, when first seen by the engineer, plaintiff’s team must have been just clearing the cut referred to particularly by the plaintiff’s witness, who said that “he would not get clear of the obstruction made by the cut until within six or eight feet of the railroad crossing.”
The engineer was at his post, on the side of the cab from which plaintiff was approaching, and, if he could not see the buggy until five-sixths of a second before reaching the point of crossing, it is measurably clear that the man in the buggy could not have seen the engine much sooner. We mention the above, with the facts previously stated, merely to furnish another view of this crossing, whose peculiarities have an important bearing on the merits of the case. We are of opinion that the question of plaintiff’s alleged contributory negligence, in view of all the surroundings, was fairly one of fact
II. Defendant next contends that, as the negligence charged is predicated on a breach of the duty imposed by section 2608 (R. S. 1889), which declares a liability “ for all damages which any person may hereafter sustain at such crossing, when such bell shall not be rung or such whistle sounded, as required by this section,’’ there should be no recovery of the $5,000 (mentioned in section 4425) for the death of plaintiff ’ s wife ; and that plaintiff ’ s damages in such case should be compensatory only.
The answer to this contention is that section 4425 is especially intended to reach cases where death ensues by reason of the facts therein described, and, among them, cases where such death is caused by any sort of negligence whilst running any locomotive or train of cars.
Negligence, under that section, may consist either in a violation of some duty imposed by the general municipal law of the land, or of some duty imposed by some more definite enactment (for example, by section 2608). The term “damages,” in section 2608, includes damages accruing under section 4425 (R. S. 1889) where death results, in the circumstances described in the latter, from negligence consisting of the failure to give the signals mentioned in the former.
This was expressly ruled by this court in the very recent case of Crumpley v. Railroad (1889), 98 Mo. 34" court="Mo." date_filed="1888-10-15" href="https://app.midpage.ai/document/crumpley-v-hannibal--st-joseph-railroad-8009532?utm_source=webapp" opinion_id="8009532">98 Mo. 34. We, therefore, do not now consider it necessary to do more than restate the conclusion then announced on this point.
III. Regarding the rulings upon the instructions and other details of exception at the trial, we coincide with the former opinion delivered in this cause, and agree to overrule the motion for rehearing and to affirm the judgment.