251 Mo. 169 | Mo. | 1913
Plaintiff sues as the administrator of Margaret Cozby to recovery statutory damages resulting from the death. It is alleged that Mrs. Cozby was killed, in the city of Oak Grove, Jackson county, Missouri, on December 23, 1905, by a lessee of defendant, while said lessee was negligently operating a railroad train over defendant’s road through said city.
Plaintiff alleges in his petition that defendant’s lessee negligently caused the death of Mrs. Cozby by (1) running its train in excess of twelve miles per hour, as prohibited by an ordinance of said city of Oak Grove; (2) by running its train through said city at an excessive, high and dangerous rate of speed, to-wit, thirty-five miles or more per hour; and (3) by neglecting to- observe the perilous position of said Margaret Cozby while she was on or near defendant’s track, and by neglecting to slacken the speed of said train after she was observed, so as to avoid running over, striking and killing her.
This action is based upon section 5425, Revised Statutes 1909, as amended in 1905, and appellant challenges the constitutionality of that statute. Since this appeal was lodged here the constitutionality of that law has been confirmed by this court in the case of Young v. Railroad, 227 Mo. 307, but as the appeal was properly granted to this court when taken, it is our duty to retain jurisdiction and dispose of the case upon its merits. [Dickey v. Holmes, 208 Mo. 664.]
The answer of defendant pleads contributory negligence on the part of deceased, and many other alleged defenses, but the conclusions we have reached render it only necessary to deal with the plea of contributory negligence.
At the time Mrs. Cozby was killed Oak Grove was a city of the fourth class, containing about 800 inhabitants. Said city has one principal street — Broadway— which runs north and south. The defendant owns a railroad track which passes through said city from
The deceased was a widow without minor children or other dependents. She was seventy-two years of age, and her hearing and eyesight somewhat defective. However, it was her custom to go unattended about the streets of Oak Grove, in which city she had resided two years next before her death.
The lessee of defendant on December 23,1905, ran a passenger train through said city of Oak Grove on defendant’s track at a speed of from thirty-five to fifty miles an hour. Said train was known as the “Red Flyer” and had been running from west to east on defendant’s track through said city of Oak Grove at about the same rate of speed during many weeks. Its regular time for passing Oak Grove was eleven o’clock in the morning, but it did not stop at that city. It was running on time December 23d, when it struck and killed Mrs. Cozby.
The plaintiff introduced G. W. Gillespie and wife who testified that they were driving south on said Broadway street in a buggy, intending to cross defendant’s track. Mrs. Cozby was walking in the same direction and was a short distance behind the Gillespies. When Mr. and Mrs. Gillespie were about forty feet from defendant’s railroad they heard an engine whistle and stopped and waited for the train to pass, but Mrs. Cozby passed their buggy and walked on southward. When she was within six or eight feet of deféndant’s track she looked westward towards the approaching train; she then pulled up her dress skirts and walked more rapidly onto, defendant’s track and
Mr. and Mrs. Gillespie, as well as other witnesses, testified that the train made quite a lot of noise, and that it was in plain view for about 1500 feet before it struck Mrs. Cozby, but that they only beard it whistle ■once. These witnesses did not bear tbe train ring its bell, nor see anything to indicate that its speed was slackened before it struck Mrs. Cozby.
One of plaintiff’s witnesses (a merchant) testified that be could bear the roar of the train when it was a half a mile away from the crossing. Walter Gibson, a seventeen-year-old boy, testifying for defendant, stated that be ran across defendant’s track just ahead of Mrs. Cozby, and that be told ber that the train was coming and advised ber not to attempt to cross in front of the train. However, be was not sure that Mrs. Cozby beard what be told ber about waiting for the train to pass.
After carefully considering the evidence of those who saw the train strike Mrs. Cozby, we find that the respondent has given a correct synopsis of that evidence in the following extract from bis brief:
“Mrs. Cozby approached the tracks of the defendant and when she got within four to six feet of these tracks she looked westward in the direction of the coming train and then proceeded across the tracks.”
Just bow close tbe train was to Mrs. Cozby when she started to cross defendant’s track is somewhat a matter of conjecture; no one could determine such an Issue with absolute accuracy. It is a certainty’ that tbe train was so close that she did not have time to pass rapidly across tbe track before tbe train struck her.
Tbe train was equipped with air-brakes, and art expert witness, testifying for plaintiff, stated that tbe train could have been stopped within a space of four hundred feet, and that its speed could have been slackened one-balf in a space of two hundred feet. Tbe preponderance of tbe evidence shows that tbe air-
OPINION.
Under the facts before stated, what was the proximate cause of Mrs. Cozby’s death? Was she guilty of such contributory negligence as will bar a recovery by her administrator in this case?
The train which struck and killed her was running at a speed far in excess of that permitted by the ordinance of Oak Grove, but as Mrs. Cozby had lived near that railroad for two years she is presumed to have known of the speed at which this train was usually operated. Because the train was running at a dangerous rate of speed did not justify her in stepping onto the track when she knew that the train was approaching at its usual rapid rate of speed.
The evidence for plaintiff proves almost conclusively that Mrs. Cozby did know the train was approaching. The plaintiff admits that fact, but endeavors to escape the force of that evidence by asserting that deceased had a right to suppose that defendant would obey the ordinance of Oak Grove and not run its train through that city in e&cess of twelve miles an hour.
The operation of the train at a rate of speed in excess of the ordinance of Oak Grove might have justified the imposition of a fine upon the employees of defendant’s lessee, provided the ordinance is valid (a point upon which we express no opinion here), but even if said ordinance is valid, we do not think its existence justified Mrs. Cozby in supposing that the engineer on the train would on that particular day do the unusual thing of reducing the speed of his train to twelve miles an hour. It is a well-known fact that people expect usual and customary things to happen, and do not expect unusual conditions to arise or extraordinary
Under the facts in this case we hold that Mrs. Cozby was guilty of such gross contributory negligence in stepping upon defendant’s track in front of a rapidly moving engine and train of cars as to bar a recovery for her death by the administrator.
The authorities are not in entire accord on this point, but the following well-considered cases seem to settle the law adversely to the contention of plaintiff and bar a recovery by him on the facts in this case: Pope v. Wabash Railroad Co., 242 Mo. 232; Laun v. St. Louis & San Francisco Railroad Co., 216 Mo. 563; and Green v. Missouri Pacific Railroad Co., 192 Mo. 131.
Respondent, however, insists that notwithstanding Mrs. Cozby saw or might have seen the train which caused her death before she stepped upon defendant’s track, the defendant is, nevertheless, liable because the engineer failed to discover her perilous position and stop his train or slacken the speed thereof.
This is not a case where the humanitarian doctrine can be applied, because the deceased was aware
In this case Mrs. Cozby was an adult, and as she looked towards the approaching train the engineer was fully warranted in supposing that she saw it and would exercise the ordinary intelligence of an adult and keep out of its way. It is not contended that the engineer had knowledge of any defect in the eyesight or hearing of Mrs. Cozby, or. that he knew of her extreme age.
This case is, in many respects, like the case of Pope v. Wabash Railroad Company, 242 Mo. 232, where the party killed was walking on the track and knew of the approaching train but failed to leave the track in time to escape injury. In that case we held that neither the non-observance of a speed ordinance nor the failure to stop the train were proximate causes of the death. Upon the authority of that case, and others before ■cited, the judgment of this case should be reversed. It is so ordered.
