150 Mo. App. 1 | Mo. Ct. App. | 1910
Plaintiff and a companion were traveling in a buggy drawn by two mules. They came up to the railroad right of way of defendant from the south, then drove east along the south side of this right of way to the public crossing for a distance estimated by plaintiff’s witnesses, at from seventy-five to two hundred yards west of the crossing of the public road, or, as testified to by defendant’s witnesses, a measured distance of exactly four hundred and fifty feet west of the crossing, then turned south along the public road and drove up a rather steep incline to the top of the dump upon which rested the track. It appears that the railroad at the point designated was on an embankment, or dump, as it is called, some six or seven feet above the surrounding land. The dirt road along which plaintiff was driving, before it turned to cross the railroad track and as it neared the crossing, was over an old sawmill site, where there was old decaying and decayed sawdust, so that, as it is claimed, the buggy and the mules made but little noise in going over this part of it along the side of the railroad right of way. The team was being driven in a walk, not trotting. The testimony is to the effect that the railroad track, west of the crossing, runs straight and over a level country for about half a mile, being built along this stretch on the dump referred to above. There was testimony to the effect that the view of the plaintiff and his companion to the east of the crossing was unobstructed. Their view toward the west or back of them, and toward the track, according to testimony on the part of plaintiff, was obstructed by a thick growth of weeds from six to ten feet high and by willows growing upon and along the right of Avay of defendant, between the dirt road and the track, so that, according to the testimony of plaintiff and of his companion, the two men in the buggy could not and did not see above their tops or through them. To quote plaintiff, he testified that he was “just driving along and the right of way was all growed up
The engine was coming from the west; that is, coming from the direction in which plaintiff and Ms companion had themselves come. When the mules reached the top of the dump and were on the track, they stopped. Plaintiff, seeing the danger, endeavored to drive the mules across, but the mules balked. Plaintiff and his companion jumped out of the buggy and escaped injury but the engine struck the hind legs of the mules and injured them and the mules were killed. In addition to the testimony of the plaintiff and that of his companion, there was that of two or more of his witnesses, to the effect that there was no sound from the approaching engine, no whistle blown, no bell rung, until immediately before the engine struck the mules, when two or more blasts of the whistle were sounded. The testimony on the part of the plaintiff further tends to prove that on the day the accident occurred and at the time, it was perfectly quiet, no noise made by the vehicle in which plaintiff was riding, to prevent them from hearing a bell or whistle or even any noise of the approaching engine. Both plaintiff and his companion testified that their sight and hearing were perfect. There was testimony tending to show that the weeds and undergrowth were close to the south of the county road and extended over the right of way to the dump. There was testimony on the part of the defendant, from the conductor and engineer of the engine, and from others, that the whistle had been sounded at the proper distance, where the whistling board was located for this crossing; that the engineer had wMstled there for the crossing and that the bell, which is operated by an air bell ringer, was sounded. „ The engineer testified that he had seen plaintiff coming across the bottom and before he turned to the south at the crossing, when he, the engineer, was quite a way down the road, and that he slowed up the engine to give plaintiff ample time to cross or stop, and
The defendant’s answer, after admitting the incorporation and the operation of the road by it, charges that the damage sustained by the plaintiff in the loss of his mules was caused by his own negligence, directly contributing thereto, in that when approaching the public crossing he did not stop and look and listen for the approach of any train upon the defendant’s railway but carelessly and negligently drove, or caused to be
At the conclusion of the testimony for the plaintiff, and again at the close of the testimony in the case, defendant asked an instruction that the jury, under the pleadings and evidence, and upon the whole case, should find for the defendant. These were refused and exception duly saved. The court gave all the instructions asked by plaintiff as also all asked by the defendant with the exception of the instructions for a verdict in its favor. The jury returned a verdict for plaintiff, assessing his damage at $375. A motion for new trial was duly filed, and overruled, exceptions saved, and the case duly appealed by the defendant to this court.
The assignments of error relied upon are that the court erred in’ overruling defendant’s demurrers to the evidence, offered at the close of plaintiff’s case and at the close of the whole case, and in overruling defendant’s motion for new trial. We have read the entire testimony and were greatly aided to an understanding of the facts by the able and clear arguments1 at bar by counsel for appellant and respondent. The proposition relied on by the learned counsel for appellant is, in a nutshell, that the evidence in the case demanded that the trial court declare, and that we, as an appellate court should now hold, as a matter of law, that plaintiff, by his own carelessness, brought on the accident, and is’ not and was not entitled to recover. These cases are cited in support of that proposition: Stepp v. Railroad, 85 Mo.