55 Mo. App. 585 | Mo. Ct. App. | 1894
The plaintiff sued the defendant for damages for negligently running one of its trains over-
The court’s action in admitting certain evidence as to contributory negligence not pleaded and thereafter allowing defendant to amend its answer so as to cover the objectionable evidence, we deem it unimportant to notice, since at all events we think the court erred in taking the case from the jury.
As already stated, the defense was two fold — a denial pf negligence, coupled with a pleaof contributory negligence, in that plaintiff carelessly and negligently drove his team onto the defendant’s track without looking and listening for an approaching train. There was abundant testimony tending to prove the alleged negligence in running the train, in that the bell was not rung nor whistle sounded as the train approached the crossing. But the trial court seems to have sustained the demurrer to the evidence on the alleged ground that plaintiff was himself guilty of negligently driving onto the track of the railroad without looking and listening for passing trains.
The testimony is not at all clear in some respects, but from the abstract we understand the circumstances to have been about as follows: At Norborne the, course of defendant’s road is east and west, crossing this public road running north and south at right angles.
On cross-examination plaintiff was asked this question:
U‘Q. When'you turned south — we will assume that you were within twenty or twenty-five feet of the railroad — did you look up the track to see if the train was approaching? A. Don’t suppose that I did.
“Q. When you started south with your team across the track did you look up that railroad track? A. No, sir; I don’t suppose I did; I heard nothing to .attract my attention.
“Q. Wasn’t the road perfectly straight here for two miles? A. Yes, sir.”
The witness further testified: “Had some conversation with Mr. Hess before I left the mill door. I asked him how soon there would be another train, and he said the next would be a passenger on the Wabash, but that it wasn’t due for some little time yet and I would have plenty of time to get out. There is a grain house west of this mill, that extends out towards the Wabash railroad. I looked up the track as far as the building would permit me seeing and there was nothing in sight and I heard nothing. When I got to the southwest corner of the mill I could see only a short distance up the track, and when I got to that point I did not hear any noise like the ringing of a bell or the blowing of a whistle.”
“Q. After McNown emerged from the mill, was there anything to prevent him from seeing up the track? A. I think there was some small building in the way on the north side of the track.”
On this state of the evidence the trial court forced plaintiff to a nonsuit on the ground that his loss was the direct result of his own negligence, and, therefore, that he was in no condition to complain of the defendant’s negligence. The announcement of the principles of law controlling this character of cases is often easier than their application to a given state of facts. The omission to do a thing in the time or manner as commanded by positive statute is negligence per se. Hence the defendant, when it failed to ring the bell or sound the whistle as the train approached the crossing in question, violated the statute and was guilty of negligence. On the other hand, if when the plaintiff approached the railroad crossing he failed to exercise that degree of care which an ordinarily prudent person would observe under the same or similar circumstances, then plaintiff will be deemed to have been likewise negligent, and for damages occasioned thereby he cannot recover.
Admitting now that defendant’s train men were in the flagrant violation of the statute (which the testimony tends to prove); that they were running the train across this public highway without giving the statutory signals, then the plaintiff ought to recover for the killing of his mare, unless he, too, was negligent. This contributory negligence charged on the plaintiff is matter of defense that must be made out by the defendant, the onus rests on it. Such negligence, too, is ordinarily for the determination of the jury under
“When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence cannot be determined until one or the other of these conclusions has been determined by the jury. The inference to be drawn from the evidence must either be certain and incontrovertible or they cannot be decided upon by the court. Negligence cannot be conclusively established by a state of facts upon which fair minded men may well differ.” Voelker v. Railroad, 129 Ill. 552. In order to justify the court in taking the case from the jury and declare the plaintiff negligent, as matter of law, it should clearly and incontrovertibly appear that no other conclusion than that of the plaintiff’s negligence is fairly deducible from the evidence, giving him the benefit of every reasonable inference that may be drawn from it. Kenney v. Railroad, 105 Mo. 270, and cases cited.
Now, while the evidence here may tend to prove the plaintiff wanting in that degree of care which he ought to have exercised in approaching the crossing, we yet fail to see in his conduct that clear case of contributory negligence which would justify the court in so declaring as matter of law.
This is not a case where the plaintiff failed altogether to observe the precaution of looking and listening as he was approaching the point of danger. He ■seems to have been on the alert, but owing to the location of the grain house or other small structures extending out towards the railroad was unable to see any great distance up the track until he got within twenty or twenty-five feet thereof. And within this
The circumstances, too, are to. be considered along with the plaintiff’s conduct in order to determine whether he was conducting himself as an ordinarily prudent person would. He left the mill on the north
The judgment, therefore, will be reversed and the cause remanded.