Spiller v. St. Louis, Memphis & Southern Railway Co.

112 Mo. App. 491 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the facts). — Defendant makes two points in support-of its motion for a com-pulsory nonsuit: First, that in the circumstances it was not required to ring the bell or blow the whistle; second, that Jones was guilty of contributory negligence as shown by all the evidence.

The case of Stillson v. Railroad, 67 Mo. 671, is cited and. relied on as sustaining the first point. In the Still-son case, the crossing which plaintiff approached was entirely obstructed by a train of cars standing across it. Several feet from the line of the street there was an opening’ about ten inches wide, through which plaintiff attempted to pass and was caught by a backward movement of the train. Whether this movement was caused by an impulse of'the locomotive or on account of an incline in the track was not shown. On this state of facts the court, at page 677, said: “But here there was no street crossing. ... It does not appear that any officer or servant of the road was aware that the plaintiff, or anyone else, was proposing or attempting to cross at the point where the injury to plaintiff occurred. It does not appear that any bell was rung or whistle sounded; but this is only required when approaching a crossing. The train was about to leave unobstructed the street crossing, over which several of its cars extended.” The case in hand presents an altogether different state of facts. The crossing over which Jones attempted to pass was not obstructed by cars standing across it, nor was there any indication, according to his evidence, that a train was approaching anywhere near, therefore, there was nothing to deter him from attempting to cross or to indicate to him the presence of danger, and we are wholly unable, from Jones’ evidence, to see wherein he was careless. But from the examination of the witnesses on the trial and the argument of plaintiff’s learned counsel in his brief, we draw the inference that, for the reason the train started to back from a point less than eighty rods from the crossing, the trainmen were not required to observe section 1102, Eevised Statutes 1899, by ringing the hill or sounding the whistle at least eighty rods from the crossing. Such a construction of the statute would be extremely technical and very literal and clearly against the plain intent of the statute, to-wit, to give warning to the traveling public of the approach of a train at a public road crossing. Not only the statute but ordinary prudence would require, irrespective of the nearness of a standing train to an unobstructed public crossing, that when the train starts to move in the direction of the crossing with the purpose of crossing over it, the statutory warning should be given of its approach. We think plaintiff’s evidence tends to show that the defendant’s servants failed to discharge that duty, and both of defendant’s points should be ruled against it.

There is a very sharp and marked conflict in the evidence, that for plaintiff makes a clear case entitling him to recover, that for defendant convicts Jones of the grossest negligence, and of such character as would defeat plaintiff’s right of recovery. The conflict was a proper matter for settlement by the jury. They have settled it by their verdict, which is conclusive on us.

The judgment is affirmed.

All concur.