Butts v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 10 June 1889
• Parties: Butts v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

11 S.W. 754

98 Mo. 272

Butts v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

June 10, 1889

Appeal from Jefferson Circuit Court. -- Hon. John L. Thomas, Judge.

Reversed.

Thos J. Portis and Geo. H. Benton for appellant.

(1) The petition fails to state facts sufficient to constitute a cause of action. State ex rel. v. Carroll, 63 Mo 156; Field v. Railroad, 76 Mo. 614; Price v Railroad, 72 Mo. 414.

Dinning & Byrns for appellant.

(1) The petition states a cause of action. (2) The court did right in overruling defendant's demurrer to plaintiff's testimony. O'Connor v. Railroad, 94 Mo. 150; Buesching v. Gas Light Co., 73 Mo. 219; Step v. Railroad, 85 Mo. 229; Petty v. Railroad, 88 Mo. 320; Zimmerman v. Railroad, 71 Mo. 476; Shearman & Redf. on Neg. (3 Ed.) sec. 31; Brown v. Railroad, 32 N.Y. 597; Kay v. Railroad, 65 Pa. St. 269; Butler v. Railroad, 28 Wis. 487; Railroad v. Sweeney, 52 Ill. 325.

Ray, C J. Sherwood and Black, JJ., concurring. Brace, J., absent and Barclay, J., dissents.

OPINION

Ray, C. J.

This is an action to recover five thousand dollars damages for the death of plaintiff's wife, which was caused by one of defendant's trains, whilst passing through the town of DeSoto, Missouri, and at a public crossing over the railroad tracks in said town.

Defendant has appealed from the verdict and judgment, for said sum, in favor of plaintiff. The answer contained, first, a general denial; second, contributory negligence, on part of the deceased; the replication was a general denial to new matter.

Defendant offered no evidence in its own behalf, but at the close of the evidence for plaintiff, asked an instruction in the nature of a demurrer to the evidence, which the court refused, and the exception taken by defendant, in this behalf, is now urged in this court, as error, requiring a reversal of the judgment in the cause.

The evidence shows that there were some six or seven different tracks, being the main track on the west, and the several side tracks, comprising the switch-yards, extending from north to south through, or nearly through, the length of said town of DeSoto, and that the public crossing in question, over said tracks is about or near the middle of said yards, the tracks themselves being generally straight or without curves, except such as are necessary to join and connect the said tracks, and that the tracks have considerable down grade, from south to north at this point. The train, which was, it seems, an ordinary freight train, was at the time of the injury, coming from the south, without the engine attached, the same having been, as the evidence shows, "cut off," or detached several hundred yards, perhaps, south of the said crossing. After thus cutting the train in two, the employes switched an engine in on the first track coming from the east, whilst the train was switched onto the "scale track," or second track from the west, leaving four remaining tracks, between the track, on which the engine passed and the one on which the train ran. These intermediate tracks were filled, or blocked, with cars up to the crossing, or nearly so, and these cars on the intermediate tracks, which were both box and flat cars, largely obstructed the view of the approaching trains, from the south at least, so far as parties approaching from the east were concerned. No bell was rung or whistle sounded, the engine having been detached as aforesaid. The evidence further shows, that the train in running on the down grade of this track, with its own momentum (the track being smooth), made less noise, than was ordinarily incident to moving trains of this sort.

The petition, we may observe in this behalf, was not based upon any alleged violation of any city or town ordinance, but alleged and charged defendant with negligence, in so detaching the engine from the train, and permitting the latter to be so run, without any means of warning, such as the bell or whistle of the engine would have afforded, and with negligence also, in crowding the cars upon the intermediate side or switch tracks, so as to obstruct the view of the deceased, as she approached from the east, the track on which the train from the south was moving at the time.

As to the conduct of Mrs. Butts, at the time of the injury, which is the controlling question in this behalf, the evidence shows we think in substance about this state of facts: She was about sixty-five years old at the time, as her husband, the plaintiff, states, and was passing over the crossing going west, that is, she was going over the crossing, from the east to the west side of the railroad tracks, whilst, as we have before seen, the train detached from the engine, was moving from the south to the north on what is designated in the evidence, as the "scale track," or the second track from the west. She had on a bonnet, it seems the ordinary sun-bonnet, which covered her head and ears, and extended forward somewhat, over her face, and was carrying a basket in her left hand or on her left arm. As she passed over the third track, from the west, her face was turned to the north, in which direction she continued to look until she passed over the distance between the third and second track, which is given at seven and a half feet and some inches, and she so continued to look to the north until she stepped upon the second track, when, as the petition charges, and the evidence shows, she was immediately struck by the said train, so coming from the south.

Her attention, at the time, seems to have been wholly directed to, and occupied with, an engine, which at the time was moving, or backing, down to the north of said crossing, but we have been unable to learn definitely from the evidence, which of these tracks said engine was on, at the time. The evidence shows that she did not look or turn her head to the south, in which direction the train was coming, and did not notice or observe the same. This is the statement in substance, in this behalf of Mr. Shafer, who was the principal witness for plaintiff, and who saw and observed Mrs. Butts as she approached, and entered upon the said track, where she was struck. Shafer, who was opposite the crossing and on the west side, and who was able, in his position, to see the train (the first or the main track to the west only, being between him and the moving train) became alarmed, and remarked, as he testified on his examination in chief, "'that lady will be catched sure, now she is looking up there, all the time watching that engine,' and sure enough she walked right across, and the front end of the train struck her." Similar statements are made by...