*1 sink appropriate portion city could not sanitation that as- right to sewers; had the it system holes of its storm part as a filled, eventually be sume, will have, must sink holes as it that such respective through owners either natural or causes properties. will find falling lot respondents’ if But be true that no water question, that no benefits way follow sewers in it does not into the If through lands property
will their construction. accrue such immediately adjoining effects of drained, the beneficial are property. way defendants’ drainage appreciable will in innure an compre- in a possibly No. 1 unit Storm Water SeAverDistrict is but city city; plan adopted drainage and the hensive the entire a valid reason council in exercise of its discretion had no doubt including in property rather than defendants’ this district some other. foregoing
From brief summarization it manifest AA7holly city action, evidence is to shoiA7 council’s insufficient that the including respondents’ property question, in the sewer district fraudulent, arbitrary, any Avas or or or basis, devoid of reasonable palpable power. abuse Indeed nor allege, the answer does not so allege any does it facts from Avhieh such an inference is neces sary Schulte, supra.] judgment deduction. v. [Hernán annulling setting trial effect, legislative court aside, city action of the council support is therefore without of either allegation proof. judgment reversed and remanded cause Avithdirections to the circuit court judgment prayed petition. enter in the All concur.
Nellie M. Smith, Administratrix of A. Estate of James Smith, Burlington Chicago, Company, Appellant. Quincy & Railroad (2d) W. 794. One, February 1,
Division 1929. *2 Houts Hale Burns, Henry Luther Conrad, L. B. Durham appellant. *3 respondent. Pross T. Cross and Cross for Gerald ELLISON, plaintiff’s O. The husband, deceased intestate, Q. foreman on main line of C., section the defendant B. & Rail- Clay village Chandler through Company, running road leasing arrange- Under a commerce. used in interstate County, and While line. are run over this Railroad Rock Island trains of the ment o’clock about three near Chandler working at a on the track curve and killed deceased was struck afternoon June plaintiff brought passenger'train. The by Rock Island a southbound County under the Federal Court of Caldwell the Circuit this suit application the venue was On Liability Act. defendant’s Employers’ in a verdict for County, trial resulted changed where a to De Kalb being against weight by as aside the court which was set plaintiff, $8000. trial the verdict was for the second evidence. On appealed. defendant has judgment that verdict the on From the charge negli- case on respondent submitted her injuries by running caused gence, viz., that intestate’s fatal were her sounding whistle, in viola- curve without train around the operating rule No. 920. The appellant railroad’s sole as- tion of the by appellant is that its demurrer to evi- signment of error (1) ap- sustained because: the rule dence should have been (2) case; plicable under the facts of acts were proximate injuries. his rule follows: the sole cause passing must be sounded before around whistle “Road obscured, between the hours of 6:30 a. m. view is curves p. 6:30 m.” counting crew, in the There were five men section deceased. They filling raising distance north a short of a yards highway crossing few above the hundred station at railroad long southerly At the railroad runs Chandler. curve veering According engi- west. civil begins crossing, curve “about 400 feet” north neer the but a map print blue drawn to scale this same and introduced shows evidence the north of the curve *4 crossing, and take this feet above the we latter distance as correct purposes for the the demurrer. The curve south of continues of the crossing feet, at 1100 as map least which is far as the shows. for more North of the north end of the curve than 1000 feet the track straight semaphores. where runs to a there are two Following the of the main track course and about nine feet east which switch track clear thereof extends around the curve and highway A further north. little even above the the roadbed through a side, cut. The vegetation runs embankments- on each with thereon, high growing as much as fifteen were at the highest point. along There right way. were also some trees the sides of the evidence show the visibility The does not as to conditions south accident, except, depot course, on the west side of the tracks. just at hotly issues of fact the trial below were as to
The contested working how far struck, when the deceased was the men were place, from that and what the deceased was the train could be seen passing weight doing If we were on the of the evidence at the1time. open testimony question would be to> be on both sides some contradictory and for prior cause of statements other reasons. But rarely since the determination of such matters comes within our province law, jury passed has twice cases at on the issues appellant rightly in its brief fact, concedes must we take the testimony purposes at its face value for the demurrer. we So main, setting ourselves, shall limit out the substance of the evidence. only eyewitnesses casualty
The were the four section men. appellant and respondent. Three of these testified for one for The appellant struck evidence for was that the train the deceased at a main highway on the track feet north of crossing. respondent’s Kurfman The witness fixed seventy-five at distance eighty feet, or and was in this testimony corroborated of a Archer, went immediately farmer named who said he to the scene lying and that after accident intestate was within 75 feet crossing; and one of witnesses admitted the de- just ceased hit, fell about where he i. e., that the train did not carry him forward. just section three men who testified all said that passed
before the train sitting deceased was on the west rail of is, passing facing track facing west—that the'main track where the men at work. His resting head- was bowed over on his arms they lay knees, across his as if dozing. he were The three men heard the train road, whistle station, for the nearly up a mile going and as it forty drew near fifty per or they miles hour stepped aside. apparently But the deceased was not approach aware close, jumped until it was up when he in confusion and ran toward Then, the main realizing track. he heading directly danger into attempted turn, late; he but it was too pilot beam of the loco- motive struck him. respondent’s agreed witness Kurfman the deceased had been sitting passing rail, on the track as stated witnesses, other but at both trials declared he before train came the deceased arose position from that and went over to main track where he was sighting down a rail with his back to the north when the locomotive per bore down on him behind'going fifty sixty miles hour. At the first trial his was that the stepped had over to came; the main about minute befoi-e the train at second trial he said he rumbling heard the of the train and looked *5 around and saw standing the deceased on the east rail of the main got about time jumped way, out of tbe line, I and “and as deceased). (the train Smith” the hit regular train that intestate was The train which struck the late. running was about five minutes stop It not at Chandler. did years about five and was appellant deceased had worked for the The The en- train schedules. rules, presumably familiar with its track, near the but neither he nor the gineer saw the section crew they Kansas been hit until reached fireman knew deceased had the testimony therefore, of little in direct ex- City. was, Their value by appellant was the planation casualty. It admitted of the affirmatively curve, the custom did not whistle for the shown but train crew all said the station whistle was so; not to do a mile back and that the train whistled for cross- sounded about ing. whistling crossing up by post semaphores, for the The begun crossing than where the would have if closer as directed in the rule. whistle had been sounded the curve But and several other the three section men witnesses denied the it; crossing they at least did sounded, whistle was and the hear hear latter witnesses did not the station whistle. how specific much, far, issue as to how or
On a view of the curve, conflicting. train was obscured the evidence was appellant conceded view did not extend from of the end other, testimony curve to the but four it was witnesses nearly feet, up shown train could be seen for 1500' clear semaphores, points sixty-six from on main track or more north feet highway crossing respondent it will be con- recalled the —and seventy-five crossing tended the deceased was feet north of the when According range struck. respondent view was much One question shorter. of her two witnesses on the said person standing that to a seventy-five main feet north of the a southbound train be would hid from view until feet; within 675 and the other witness fixed the at 500 distance 600 feet. This maximum view shortest of 500 feet would therefore north crossing, forty-five extended feet north of feet the north which curve, was 530 feet north cross- ing; and if the of the curve was 400 feet north of the crossing, appellant’s estimated, the view would reach 175 beyond it. eight introduced photographs respondent and the two; but none of the photographs looking north were taken from main track. In all of them the camera was set at points designated north or east of the place by respondent as the accident, consequence and in they commanded a better view the track around the shoulder curve. In addition some of them early were taken spring vegetation before the had grown up. respondent’s One of pictures was taken spot
966 enlarged says kodak but it was an hit,
where slie deceased was all clear. picture objects deep background are not at and the altering issue nothing pictures substantially There is by testimony oral of the witnesses. correctly appellant's proposition I. If we understand first it is that under all the evidence the curve was not one where the view meaning 920, was obscured within the of rule and for that reason required. premised was not The contention is by on the `~clear track doctrine" often announced this obliged court that section men are to look out for their safety engine right own and as to them an crew have a to 271 Lusk v. expect Ellison, a clear track. ex rel. [State 463, 468, Mo. 1088, argued 196 that S. W. From this it is 1089.] when permits any point a curve section men at to see protect themselves, operating apply, time to rule does though even the view does not extend from end of the curve to one other; feet, by and it is distance of insisted the 500 shown respondent evidence favorable range most to to have been the view, intestate’s was as a matter of law sufficient for the section protection. men’s why approve theory. There are several reasons we cannot place In the first there is no evidence that at cenlI on the curve
the section men could have seen the train for 500 feet. All the testi- mony exclusively question dealt with the as to how far the train (accord- could have been seen ing the deceased from where he was litigant) just for each before the accident-and showing points thence northward. There was no as to the view from along the track south of the of the accident-or at least south point sixty-six highway crossing, being of a feet north of the the southernmost mentioned in this connection. It is appellant’s true print blue shows the track described a uni- form curve, but it does not follow that the view be would the same all way around. It was embankments on the west side with vegetation growing thereon, the buildings, etc., trees, and their proximity to the track, that obstructed view; and what the con- respect ditions with things to these 1100 along the feet or more of curved track south highway crossing, the record does not disclose. Another objection valid appellant’s contention is that have we right say
no as a matter law a maximum view of 500 feet was protect sufficient to the trackmen. respondent’s say witnesses going the train fifty sixty per miles hour in this instance. That 73?, would be eighty-eight second, per feet allowed six or seven seconds for get the men out way, assuming they saw the train very instant it came into view. In Dixon v. C. &
967 employee 412, 416, W. 19 413, 428, 109 Mo. S. Ry. Co., A. evidence safeguarded similar to operating an rule and for for a distance here, he could see the train Co., Q.& Railroad C., B. seconds; Hunt space thirty and in 485, for 481, 483, a distance 259 W. 122, Mo. engine crew were yet it was held feet; cases both these rule. with the whistle in accordance bound to sound contrary it is position tenable because is not Again, *7 supra (109 Mo. c. Co., & l. Ry. A. ruling in Dixon v. C. banc, en the court 413) which was decided 415, 19 l. S. W. c. cannot train at one end is in which a “an curve one that obscure was the that such end;” and it is conceded be seen from the other pro must this Strictly be admitted speaking, in fact this case. opinion proper, part a the case was not Dixon nouncement separate which was in the statement facts appeared because it theory opinion proceeded on that opinion, yet the the since regard controlling. decision as we basis, must ofight accepted as an suggests Dixon case not to be Appellant required authority rule under consideration because the there here case at whistling “at curves” whereas the rule bar all obscure It a specifies “where the view is obscured.” is said there curves is an curve and one where the view is between obscure ob- difference expression a a ; the former to curve as whole where- scured that refers visibility particular conditions applies to at as the latter We cannot a places curve. draw such distinction. clause on the rule obscured” in the instant refers the whole “where the view is to other; adjective just “obscure” and both des- curve as did the must ignate the curves for which the whistle be sounded. distinguish
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tions, determine in advance whether necessary. Such uniformity lack of in operating practice would tend to confuse the trackmen rather than to assist them. II. It is next contended even though should yet
have'whistled, deceased to the benefit of the entitled rule, and his representative, respondent, cannot invoke a breach it, straight up because see could according north feet of the curve forty- appellant’s witness, and for at least own'showing. contention, by respondent’s likewise, five This has further basis doctrine heretofore mentioned and is in the clear-track Ry. S. 224 Mo. Degonia L., Co., like v. St. I. M. & founded on cases right 564, 807, 123 W. which a section man has hold no *8 signals giving statutory crossing is rely to the because he on the of signals people intended bound to for himself and the are look out argument in since other is made that the deceased situations. straight working he was under the clear-track could see the by analogy count on the doctrine and therefore could not curve signals. by working straight man on
If a be struck .a while section required, may he curve is be true track close to a though rule, might of complain could of a breach the he have not sounded; way signal if got so, had been if he also, out of the as all barely curve, where, to intents and view purposes, on his good go along with equally possible as-far would be as —to questions attempting arguendo without decide we mention these to certainly that he protection is not is denied the them-—-but it true part straight track,. merely because can see some the rule he however small. may operating salutory regulation of this
Whatever be effect imagined, evident, that can we think it and in situations be other signal ought for which the to be hold, when curve is one compliance may rely upon engaged a with the given, there trackmen curve, substantially is obstructed or obscured if view their rule though thought, in with wholly so. This we conceive be line Ry. supra; v. & A. Co., C. underlying decisions. .earlier [Dixon Q. supra, 303 259 124, R. Mo. l. c. W. l. c. Co., Hunt v. & R. C., B. S. Ry., 309 486; Hughes 560, 581, M. R. & B. T. Mo. S. W. 710; C., Ry. Co., 1, 32, Kidd v. R. I. & P. Mo. 274 W. finding It is supported needless to add that a tbe evidence
1089.] respondent under law as declared. here III. The by appellant third is that the acts deceased proximate were the sole injuries. cause of his fatal This assignment as elaborated largely grounds in the brief is based on here engine
tofore discussed: that the crew were under no whistle, or duty tract; to discover on sjnee they actually him, injuries and did not see his and charged going staying be to his own death must acts to and on already disposed propositions the track. We have of the on which argument predicated. negligent contention is that even if further failing yet for the curve the deceased in to whistle the acts of suddenly going safety place switch on the track to danger track, remaining on the main and there with his back to consequences engine, engineer’s negligence were not such of the reasonably anticipate, as latter bound in- but were the dependent intervening proximate sole cause of the accident. and appears suggestion. There to be no merit whatever in this Consider- ing object signals purpose warning and was it not at least jury question gone whether the deceased would have front the train at all if the whistle had been sounded ? A number of cases they are cited the brief but are so dissimilar in their facts that it good will no do to refer to them. pass If duty it were our credibility witnesses weight of the evidence there would some questions be serious case, judgment but on record and under the law the should Lindsay Seddon, CO.,
be and is affirmed. concur. opinion PER foregoing CURIAM: The Ellison, C., adopted opinion judges Frank, All concur, except of the court. sitting. J., not *9 Company City Appellants, v. Kansas et al., Investment
Bellerive (2d) al. 13 S. 628. W. et February One, Division 1929.