152 Mo. App. 167 | Mo. Ct. App. | 1910
Plaintiff, the widow of D. W. Newton, deceased, brought this action under section 2864, Revised Statutes 1899,'as amended, Laws 1905, p. 136, section (5425, Revised Statutes 1909), to recover damages for the death of her husband which she alleges w'as caused by the negligence of defendant. She prevailed in the trial court where she recovered judgment for five thousand dollars, and the cause is before us on the appeal of defendant.
Mr. Newton was killed about 8:30 p. m., April 29, 1900, at the crossing of Coates street, a public thoroughfare in Moberly, and tracks in defendant’s railroad yard. Coates street was paved and was one of the principal thoroughfares between the east and west portions of the city. It crossed eight tracks running north and south and Newton was killed on the fourth track from the east. He was.going west and stepped in front of a switch engine backing north at speed estimated by the witnesses at from five to ten miles per hour. He was struck by the tender and received injuries from which he died an hour later. Plaintiff does not base her cause of action on any breach of defendant’s duty under the “humanitarian doctrine” but alleges the death of her husband was caused by the negligence of defendant in running the engine over, the crossing backward with no headlight at the end of
The evidence of plaintiff tends to prove the following facts: Newton was fifty years old and in full possession of his senses of sight and hearing. As he neared the crossing there was nothing to prevent his seeing the approaching switch engine except darkness and the fact that the engine carried no lights on the rear end. It was equipped with headlights at both ends, but, for some cause, only the one in front was burning. The bell was not rung nor was any warning given. The engine made the rattling noise usually emitted by switch engines while running, but this crossing was in a busy part of the city and in a busy part of defendant’s yards and there were other noises to distract attention. Evidently Newton neither saw nor heard the engine until it was upon him and he could not escape. The facts that the rear headlight was not burning and that the bell was not ringing are disputed by defendant’s witnesses, but for the purposes of the demurrer to the evidence, we accept them as proved since we find them supported by substantial evidence. They convict defendant of negligence which clearly appears as a proximate cause of the death of the unfortunate man. To back an engine over a busy street crossing on a dark night without carrying tail lights, ringing the bell or giving any kind of warning, was gross negligence and we would say that plaintiff had a cause of action but for the fact of contributory negligence.
The rules of law relating to the issue of contributory negligence are well settled and easily understood, but the proper application of those rules to the particular facts of a given case often is found to be a difficult question. Where, as here, the evidence discloses negligence of the defendant as a proximate
A railroad track is a place of danger and of itself is a warning signal. “It has always been the law
To be in the exercise of reasonable care, a person in crossing a railroad track must look and listen before entering the sphere of danger if by so doing he can see and hear the coming train. It is true he has the right to presume the railroad eoinpany will observe reasonable care in the operation of the train, but he has no right to rely exclusively on that presumption, since no man of ordinary prudence will trust his own safety entirely to the care of another when he can, protect himself by the proper use of his own senses.
Guided by these rules, we find the evidence ■ of plaintiff, after making all due inferences and allowances in favor of the man who lost his life, still accuses him of negligence in law. His sight and hearing were. unimpaired and there was nothing to prevent his seeing the engine had he looked in that direction before entering the sphere of danger. There is no evidence that it was too dark for him to see the engine. It is true there is evidence to the effect that the arc light at that crossing was out that night, but the one a block west was burning and there were lights shining from the depot two hundred yards away in the background and from nearer buildings.
The most that can be said of plaintiff’s evidence is that the place was in partial but not complete darkness. There was a number of eye-witnesses introduced by both plaintiff and defendant and all of them could and did see the engine. Two boys, witnesses for plaintiff, who were walking fifteen or twenty feet behind Mr. Newton, saw him struck by the engine and afterward saw him crawl out to the side of the track. A son-in-law of Mr. .Newton, who -hastened to the
It follows that the judgment must be reversed.