Lang v. Missouri Pacific Railway Co.

115 Mo. App. 489 | Mo. Ct. App. | 1906

JOHNSON, J.

— This is an action to recover damages for persona] injuries sustained by plaintiff at the crossing of a public street and defendant’s railroad tracks in the city of Boonville. Plaintiff had judgment in the sum of three thousand dollars and defendant appealed.

The facts disclosed by. the evidence introduced by plaintiff are as follows: Plaintiff, a farmer living six or seven miles west of Boonville, while on his way. home, was driving a team attached to an ordinary farm wagon and at the time of the occurrence in question was standing near the front end of the wagonbed. His position placed him some fifteen feet distant from the end of the tongue. In driving westward on Spring street, it was necessary for him to cross three tracks of defendant’s road. These tracks ran north and south and intersected the street at right angle. East of the east track and on the south side of the street was a grain elevator, and directly across on the north side of the street was another elevator. The east track ran close to both elevators and served as a loading track for them. A box car was standing on this track at the northwest corner of the south-side elevator and extended some six or eight feet into the street. The street declined from the east to the crossing. East of the elevator, there was an open space which afforded a view to one approaching from the east of the tracks extending to the south except the portion of them obscured by the elevator building. When he reached this point of view, plaintiff looked to the south and saw the smoke from an engine several hundred yards away and from his observation rightly concluded that the engine was not approaching the crossing. He continued on slowly and cautiously, looked both to the right and left, and listened for the approach of trains or cars. His wagon was almost new and made but little noise. Just before the crossing was reached, he checked his team, but did not come to a full stop. He saw and heard nothing to warn him of approaching danger and proceeded looking towards the south. The center and main track was twelve feet distant from the east track and it is asserted that plaintiff, because of the interference of the elevator and box car, could not include it within his range of vision until hepassed from behind the car. Consequently, although he was looking towards the south, he did not become aware of the approach of the car that ran him down until his horses ’■ front feet had entered upon the main track. At that moment, he saw coming from the south on the main track an open coal car, which was running at the rate of five or six miles per hour. It was unattached and unaccompanied by any servant of defendant and had been set in„ motion, in the process of switching, several hundred yards south of the street, and permitted by defendant’s servants to run uncontrolled. No servant of defendant was stationed at the crossing to give warning of its approach. When plaintiff caught sight of the car, he vigorously whipped his horses with the lines in an effort to escape by going across and then, moved by fear of a collision, ran to the back end of the wagonbed with the intent of jumping to the ground. As he started to jump, the car struck the rear end of the wagon and plaintiff was thrown out and fell to the ground to the east of the track, far enough to miss the passing car. The wagon was pushed around to the west, but the violence of the impact was sufficient to demolish it and tear it loose from the team. Plaintiff was severely injured, but, as no point is made that the verdict is excessive, it is unnecessary to state his injuries.

On the part of the defendant, the evidence goes to show that plaintiff could have seen and did see the approaching car before he reached a place of danger and attempted to “run” the crossing; that the car was not “kicked” or “shunted,” that is, was not set in motion by the engine and then detached to travel forward, but was given “slack”to start it and then gained headway by force of gravity, the track being down grade towards the crossing.

In the view we take of the case, notwithstanding the allegation in the petition that the car .was “kicked” or “shunted,” it is immaterial whether it was given headway by that operation or was started in the manner claimed by defendant. The means of propulsion used do not enter into the question of negligence. The determinative fact is that the servants of defendant, by any process, started the car in motion, and sent it over the crossing without warning and without any means of control. This fact is admitted by defendant and its negligence thereby confessed. It is so well settled in this State that it is negligence per se to move cars in this manner over public crossings that it is not required of us to discuss the subject. [Pinney v. Railway, 71 Mo. App. 577; O’Connor v. Railway, 94 Mo. 150; Baker v. Railroad, 122 Mo. 533; Baker v. Railroad, 147 Mo. 140; Stevens v. Railway, 67 Mo. App. 356.] This disposes of the criticism that the court, in one of the instructions given on behalf of plaintiff, assumed, as proven, the fact of the negligence of defendant.

Defendant asked for an instruction in the nature of a demurrer tó the evidence and complains of the action of the trial court in refusing it, assigning two grounds in support of its position-: first, a total failure of proof of the allegations of the petition; and, second, that the contributory uegligence of plaintiff should be assumed as a matter of law.

As to the first, the petition alleges that “by the force of the collision of the said car with his said wagon, plaintiff was thrown several feet into the air and fell with great force and violence, head foremost, to the ground, etc.” It is insisted that plaintiff himself admits he was not thrown from the wagon by the impact, but jumped before it occurred and in anticipation of it, from which defendant argues that there is a complete departure from the constitutive fact alleged and that proven. This contention may be fully answered by saying that the record abounds with evidence that plaintiff was intercepted by the collision before he could leap and was thrown out by the force of the blow. Plaintiff, because of his foreign training, is unskilled in the use of the English language, and some of his isolated expressions appear to lend color to defendant’s interpretation, but, considering his testimony as a whole, we do not understand that he intended to convey the impression that he jumped before the collision occurred. Other witnesses negatived this idea — among them, one introduced by defendant, an eyewitness, who quite emphatically declared plaintiff did not jump, but was projected by the impact. Defendant urges upon us the physical impossibility of plaintiff falling where he did had he been thrown by the collision. It is true the team and front end of the wagon had passed over the track and the rear end of the wagon alone was struck, but we are not prepared to declare as a matter of law that plaintiff could not have fallen eastwardly a sufficient distance to clear the oncoming car. Just what direction would be given his flight through the air by the meeting of the force of the impact coming from the south and that of his own inertia eastward, acquired by his hasty effort to leave the wagon, is a problem in physics, beyond the pale of judicial cognizance. It probably would be influenced by the weight and rate of speed respectively of man, car, and wagon. So frequently do unlooked for results attend the meeting of interacting forces that courts, in such cases, should not indulge in arbitrary deductions from physical law and fact except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other. AYe conclude that the proof sustained the facts alleged.

Relative to the second point, we are urged to declare that in law plaintiff, under his own evidence, was guilty of negligence directly contributing to his injury and therefore was not entitled to have the issue involving the degree of care exercised by him submitted to the jury as one of fact. The presence of a railroad crossing is, of itself, a danger signal, both to persons using the public highway and those operating trains upon the railroad. Each class of persons is bound to anticipate the presence of the other at the crossing at any time. Those operating trains must give Avarning of their approach and those using the highway must be alert in the use of their senses to guard their crossing from danger. The failure of either to' observe these precautions is negligence. We have found .that defendant was negligent in sending the car over the crossing without warning, so that our whole concern is with the classification of plaintiff’s conduct, for, if he was negligent in his manner of approaching the crossing, he cannot recover, however culpable defendant may have been. [Jones v. Barnard, 63 Mo. App. 501; Butts v. Railroad, 98 Mo. 272; Drake v. Railroad, 51 Mo. App. 562; Tanner v. Railroad, 161 Mo. 497.] Although plaintiff was bound to be attentive to use his eyes and ears to learn of approaching danger, he was not required to anticipate that defendant would operate its engine and cars in a negligent manner. He had a right to assume that defendant would not turn loose a car to run wild and that it would give warning of the approach of any of its trains or cars. [Baker v. Railroad, 147 Mo. 140; Elliott v. Railroad, 105 Mo. App. 523; Weller v. Railway, 120 Mo. 635.] Therefore, the degree of care required of him was that which a reasonably careful and prudent person would have exercised to avoid the dangers incident to a proper operation of trains and cars upon the tracks. [Pinney v. Railway, supra.]

Where obstructions exclude a vieAV of the tracks, a person approaching the crossing is not necessarily compelled, in order to satisfy the requirements of reasonable? care, to leave his vehicle and go forward to the track to convince himself by visual inspection that no danger is approaching. If he is in a position to hear the signals which he has the right to expect will be given, and, listening, hears none and advances slowly and attentively, for the court to hold him blameworthy for not going forward on foot and looking from where the tracks may be seen, would be imposing upon him the duty to observe extraordinary care, that is, to take precautions not deemed necessary by ordinarily prudent persons. [Donohue v. Railway, 91 Mo. 357; Baker v. Bailroad, 122 Mo. 533.] There are cases that call for such conduct as an act of reasonable care. When a person, in driving to a crossing, is surrounded by obstacles and conditions that prevent him from either seeing an approaching train or car, or from hearing signals, then he must do all that is necessary to inform himself of the situation, even to the point of walking to the track that he may see if his way is threatened.

Tested by these principles, the characterization of plaintiff’s conduct was a question of fact for the jury. After leaving the open space east of the elevator, he could not see the track until his team entered into the sphere of danger, but, according to his evidence, he could have heard signals or warnings and was listening for them. After he passed beyond the obstruction to his sight caused by the presence of the elevator, he could have seen over the top of the stationary box car, before he entered into danger, the top of an engine or box cars moving on the main track, and he was looking in that direction. He could neither see nor hear the stealthy approach of the coal car. It was wrongfully there through defendant’s negligence, and to charge him with constructive knowledge of its presence would be a gross injustice.

It has been suggested that, as plaintiff was not himself in danger when he first observed the car, it was negligence for him to attempt to whip his team over the crossing; that the safer course would have been to back the team out of danger. The horses had their front feet on the track and therefore were in danger, not only from a collision, but from fright. It cannot be assumed that plaintiff himself was not then in imminent danger. With the car only ten or fifteen feet away and bearing down on the team at the rate of five or six miles per hour, and the team then in forward motion, he could not well foresee the consequences likely to follow an attempt to stop and back them. Any course he might pursue seemed fraught with danger to him. Moreover, the sudden surprise that brought to him a realization of danger naturally would serve to confuse him and cause him to act by impluse rather than from reason. The law imposes no rules of conduct upon one, who is forced to escape as he may from impending danger, that threatens him with great bodily harm. The instinct of self-preservation in such cases often destroys judgment and impels men, who ordinarily are careful and prudent, to conduct themselves with extraordinary recklessness. Plaintiff, evidently, was laboring under great excitement and, if we felt constrained to say (which we do not) that he acted unwisely in attempting to cross, we would not hold him at fault in law for what he did under stress of truculent danger. [Donohue v. Railway, supra, l. c. 364.] We think it was proper to let the jury pass upon his entire conduct and that no error was committed in overruling the demurrer to the evidence. [Pinney v. Railway, supra; Stevens v. Railway, supra.]

The views expressed answer the questions raised relative to the giving and refusing of instructions. The law was correctly declared in those given. Instruction number eleven asked by defendant contained a declaration of law embodied in other instructions given on behalf of defendant and, therefore, was properly refused. The case was fairly tried and submitted, and the judgment is affirmed.

All concur.