171 Mo. 338 | Mo. Ct. App. | 1902
Plaintiff’s husband was killed at a railroad crossing in a public street in Kansas City, through the negligence, as plaintiff alleges, of the servants of defendant in handling a freight train.
Plaintiff’s evidence tended to show the following facts: Hickory street runs north and south, Union avenue crosses it at right angles. Defendant owns two railway tracks crossing Hickory street diagonally from southwest to northeast, near the intersection of Union avenue. The space between these two tracks is eight feet. South of and parallel to defendant’s tracks are two other railway tracks, between which is alike space of eight feet, belonging to the Wabash Railroad Company. The space between the tracks of the defendant and those of the Wabash is twelve and a half feet. The following diagram represents the location of the tracks .and the scene of the accident:
There were some buildings along the north line of Union avenue nearly up to the point where the south Wabash track crosses that line, which is about 150 feet east of the east line of Hickory street. After passing those buildings there was nothing to' prevent one going as deceased was, from seeing the defendant’s tracks as far east as the train in question was, and, after he reached Hickory street, he had a clear view of defendant’s tracks as far east as the next street, Mulberry. This train, just before the accident, had crossed Hickory street going east, the last car in the train clearing the east line of Hickory street about 120 feet, then the work of kicking the cars back into the switch began. This was done by backing the train, during which the coupling pin was drawn to detach the car to be kicked, a shove by the engine was given, and the detached car. was let to go into the switch by the force thus imparted and the rest of the train was pulled forward again for another such flying switch. One car of this train had thus been switched across the street and the crew were in the act of switching the next car when the accident occurred. There was no brakeman on the detached car.
There were two witnesses for the plaintiff, who
The plaintiff’s other witness to the scene viewed it from a point in the space between the tracks of the defendant and those of the Wabash near the west side of Hickory street in its intersection with Union avenue. This witness was walking north aiming to reach a place two squares north of the railroads. He saw the train pull east, it was a freight train of ten or twelve cars, then he saw it shoved back and this car cut loose, kicked back and let to run down by itself; it was cut loose from the train about two car-lengths, or seventy-two feet, east of Hickory street. The witness seeing that the crew were thus engaged in switching cars across the street, when he reached the point' above designated (between the tracks of defendant and those of the Wabash), perceiving that he could not get across the tracks before the car would be upon him, stopped to let it pass. While he stopped the plaintiff’s husband drove by him going in a jog trot about four miles an hour looking-straight ahead, but just as he passed witness he turned and glanced to the west, and drove on until the car
The testimony on the part of the defendant tended to show as follows: 'When the deceased, coming west on Union avenue, reached Hickory street, he turned south and drove about two squares to the place of business of one of defendant’s witnesses, then turned north and drove on to the place of the accident. If he took that course he had an opportunity to see the crossing and the movements of the cars before he reached the south intersecting line of Union avenue. The switching of cars at the point was almost a continuous operation every day, with sometimes an intermission of a half hour, and frequently no intermission at all during the whole day. About fifty trains in a day usually passed that point, some passing over and some switching. The deceased lived in that vicinity, and was accustomed to passing over that crossing. There were two flagmen stationed there, who saw the danger into which the deceased was moving, and both of them tried to call his attention and stop him; they both holloed to him, one waved his flag, and the other held a stick across in front of the horse.
The switchman who had cut the car loose and who was on the ground near it, also saw the peril, and ran towards the deceased calling him to look out. Another man, the one who was talking to the plaintiff’s witness on the north side of the tracks, saw the danger into which the deceased was moving, and waived his arms and shouted to him. But neither the situation itself nor the efforts of these persons had the effect to attract his attention.
At the close of the plaintiff’s evidence, and again at the close of all the evidence, the defendant asked an instruction to the effect that under the pleadings and evidence the plaintiff was not entitled to recover, which the court refused. The cause was submitted to the
That it was negligence in defendant to make a flying switch across a public street without having a brakeman on the car to control its movement is not questioned. But conceding the defendant’s negligence, can the plaintiff recover in the face of this evidence? The tendency of the evidence on the part of the defendant in the above statement is mentioned, only to show that it did not strengthen the plaintiff’s case. The ruling of the trial court in refusing the instruction in the nature of a demurrer to the evidence will, therefore, be considered in the light of the plaintiff’s evidence alone.
The learned counsel for plaintiff state their case thus: “The evidence fairly shows that the deceased saw the train going east, and that he naturally supposed it would continue in that direction; and the evidence also fairly shows that the flagmen negligently failed to see deceased until he had crossed the 'Wabash tracks, and that they gave the signal to the foreman to have the car kicked while deceased was attempting to make the crossing; and that while the deceased was in that perilous position the car was suddenly kicked with great force and hurled upon him.”
That defendant’s employees handling the train had as fair an opportunity to see the movements of the deceased as he had to see those of the train, is true, and if they had been on the lookout, as they should have been, and could reasonably have anticipated that he would act as he did, it would have been their duty to have made reasonable effort by use of the means at hand to avert the danger, and failing so to do the defendant would have been liable. That is to say, if they saw the deceased going headlong into danger with every indication that he was either oblivious to the situation or reckless of the consequences, the duty devolved on them to malm an effort to avert the catastrophe. But in this case, what reason had the defendant’s servants to suppose that this man would act as he did? Could they
The learned counsel infer from the evidence that the deceased saw this train cross the street going east and concluded that it would continue in that direction and so gave no further thought to it, and turned his eyes to the west. But the plaintiff’s own witnesses show that the train was backing when the deceased was at least as far away as the Wabash tracks, when he was in plain view, when every one else there saw what was doing and when he would have seen.if he had used his
We are of the opinion that the plaintiff’s own evidence shows that the deceased was guilty of negligence which contributed to the accident and that the circumstances were not such as would render the defendant liable notwithstanding the negligence of the deceased. Therefore, the instruction in the nature of a demurrer to the evidence should have been given. The judgment is reversed.