122 Mo. App. 50 | Mo. Ct. App. | 1906
Action to recover damages for personal injuries received by plaintiff at the crossing of a public street and defendant’s railroad tracks in the city of Joplin. The judgment was for plaintiff in the sum of |3,000 and plaintiff appealed.
Plaintiff lived in Chitwood a few miles distant from Joplin. On January 9, 1905, he accompanied a Mr.
From the evidence of plaintiff it appears that Hotchkiss drove in a moderate trot until they reached a point about thirty feet from the east track when he reduced speed to a walk. There was some snow on the ground, the weather was moderately cold and a light wind was blowing from the northwest. The two men had their ears uncovered and were both looking and listening for the approach of trains. The buggy made no noise and had the engine, with which they afterwards collided, given any warning signals of its approach, both were in condition to hear such signals in time to have stopped the horse before reaching the east track. This track was filled with standing freight cars, with the exception of an opening about twenty-five feet wide left at the crossing for the passage of vehicles. These cars extended southward the whole length' of the side-track, a distance of six hundred feet or more. The space between
The evidence of plaintiff is to the effect that the train in approaching the crossing was running at a speed of tAventy or tAventy-five miles per hour. The bell was not rung at any time nor was the whistle sounded until the moment of the collision. Plaintiff pleaded and introduced in evidence an ordinance of the city of Joplin forbidding the running of railroad trains, within the corporate limits of the city, at. a greater speed than twelve miles per hour. The negligence alleged in the petition includes the acts of running at a higher rate of speed than that permitted by the ordinance and' in failing to “ring the bell at a distance of eighty rods from said crossing and to sound said whistle at intervals until said locomotive had crossed said highAvav.”
The answer contains a general denial and a plea of contributory negligence. Defendant’s evidence tended
Our chief concern is with the questions arising under defendant’s insistence that its instruction in the nature of a demurrer to the evidence should have been given. The acceptance of the facts adduced by plaintiff indisputably leads to the conclusion that defendant was negligent in the respects alleged in the operation of its train Avhile approaching the crossing. Assuming that the crossing was within the corporate limits of Joplin, the provisions of section 1102, Revised Statutes 1899, required defendant to begin ringing the bell eighty rods therefrom and to continue ringing until the crossing had been passed. The alternative of ringing the bell or sounding the whistle applies to crossings in the country. [Van Note v. Railroad, 70 Mo. 641; Turner v. Railroad, 78 Mo. 578; Terry v. Railroad, 89 Mo. 586.] But not to crossings of public streets in cities. [Kennayde v. Railroad, 45 Mo. 255; Weller v. Railroad, 164 Mo. 180.] Defendant neither sounded the whistle nor rang the bell and therefore Avas negligent whether the crossing was situated within the corporate limits of the city or was in the country.
In this connection Ave will notice the point, made by defendant, that the evidence fails to show the crossing was in the city. The proof of this' fact is somewhat meager doubtless for the reason that throughout the trial its existence Avas not disputed and from the questions propounded to witnesses by counsel on both sides appears to have been assumed. One witness Avas asked the direct question. “Where is this crossing with reference to the
Defendant further was guilty of negligence in running its trains at a greater rate of speed than that prescribed by the ordinance. [Schmidt v. Railway Co., 191 Mo. 215, 90 S. W. 136.]
Under the hypothesis that defendant was negligent in these particulars, the questions of first importance suggested by the facts and circumstances disclosed, as Avell as by the argument of counsel, are these: Were the negligent acts of defendant or any of them the producing cause of the injury? And was plaintiff in law guilty of contributory negligence? Both plaintiff and Hotchkiss were required to exercise due care for their own safety which means that in approaching so dangerous a place as a railroad crossing, ordinary prudence made it their imperative duty to look and listen for an approaching train. But they had the right to assume that defendant Avould obey the laAv in the operation of its trains over the crossing and therefore would give the necessary signals and would not run a train at a greater
Defendant argues that as the intervening space between the two tracks was fifty-five feet by actual measurement and immediately after crossing the side track the occupants of the buggy could see down the main track six hundred feet or more one of two conclusions is irresistible. If the driver did not lose control over the horse but attempted to “run the crossing” as some of defendant's witnesses say he did, plaintiff was negligent in law and on the other hand if the horse ran away it was the vice of the animal and not the negligent acts of defendant that furnished the proximate cause of the injury. In support of the last conclusion defendant endeavors to illustrate its argument with this example. Suppose the horse had become frightened several blocks away from the crossing and had bolted, could the fortuitous fact that he reached the crossing just in time to produce a collision between the engine and the buggy appear otherwise than as purely accidental and could the acts of defendant in running its train at an unlawful rate of speed or in failing to signal for the crossing by any logical reasoning be included in the line of direct causation? The supposed facts differ so widely in essential features from the real.facts that they fail to illuminate any question of practical importance in the case. The horse was under complete control until
In disposing of the demurrer to the evidence it is not necessary to consider the questions arising under the hypothesis that the driver with knowledge that the train was approaching deliberately attempted to cross the track ahead of it. That theory is rejected because it is
What we have said answers most of the objections made to the rulings of the trial judge in the giving and refusing of instructions asked. The others have been considered and found to be without merit. No prejudicial error was committed in the trial of the case and the judgment is affirmed.