Turner v. St. Louis & Hannibal Railway Company
| Decision Date | 15 December 1908 |
| Parties | TURNER, Appellant, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Pike Circuit Court.--Hon. David H. Eby, Judge.
Reversed and remanded.
I. C Dempsey and Tapley & Fitzgerrell for appellant.
Appellant's instructions numbers seven and eight should have been given. Under section 1102, Revised Statutes 1899, actual collision is not necessary to create liability as under section 1105 of said statute. The statutory signal not being given, appellant was induced to approach the crossing and was injured by his horse taking fright at the train, respondent became liable. Norton v. Railroad, 113 Mass. 366; Prescott v Railroad, 113 Mass. 370; Shaw v. Railroad, 8 Gray 45; Pollock v. Railroad, 124 Mass. 158; Railroad v. Barnett, 59 Pa. 259; Railroad v Stinger, 78 Pa. 218; Hudson v. Railroad, 14 Bush 303; Hart v. Railroad, 7 N.W. 9; Lawrence v. Railroad, 87 Iowa 755; Voak v. Railroad, 75 N.Y. 320; Bell v. Railroad, 72 Mo. 50; Melton v. Railroad, 99 Mo.App. 282; Golden v. Railroad, 84 Mo.App. 59; Oates v. Railroad, 168 Mo. 585.
Action for damages for a personal injury. The accident occurred May 4, 1906, in the city of Bowling Green. Plaintiff, who had resided in said city for about two years, was driving along Centennial avenue, an east and west thoroughfare, intersected by defendant's railway running from northwest to southeast. The hour was 1:30 p.m. Plaintiff was in an uncovered buggy drawn by a single horse. He testified he pulled the horse almost to a stop when he reached the intersection of Centennial avenue and the north and south street nearest the railway crossing, which street was some two hundred feet or more from the latter point. He said he looked and listened for an approaching train, but could neither see nor hear one; that he then moved forward from the crossing of the two streets in a walk, continuing to listen for a train; his view was obstructed by houses and trees along the north side of the street; he was driving toward the east and as he drew near the crossing a mixed freight and passenger train came along from the northwest going toward the southeast; the bell was not rung nor the whistle sounded and he heard nothing of the train until it was almost on him; it was emitting steam and the steam or the train itself, or both, frightened his horse, causing it to wheel around and throw him out of the buggy, thereby seriously injuring him. The petition alleges that when plaintiff was within fifteen feet of the crossing a locomotive engine hauling a train, suddenly passed over the crossing, and in so passing frightened his horse, which became unmanageable, turned suddenly and threw him out of the buggy. The acts of negligence alleged are omitting to ring the bell continuously from a point eighty rods from the crossing, until the locomotive had passed, and to sound a whistle continuously over the same distance, and disregard of an ordinance of the municipality, prohibiting trains and locomotives from running through the city at a higher speed than five miles an hour. It is averred that because of the failure of defendant's servants to ring the bell or sound the whistle of the engine, and because plaintiff was relying on such warnings being given if a train approached, he drove nearer the crossing than he otherwise would, and by reason of the fright of his horse, occasioned by the acts of negligence of defendant's servants aforesaid, lost control of the horse; that the servants in charge of the engine saw the horse was frightened and about to run away, yet they carelessly permitted steam to escape from the engine, thereby increasing the fright of the horse; that these acts of negligence were the direct and proximate cause of the accident which caused the injuries aforesaid. The answer admits various statements of the petition; among others that plaintiff drove so close to the railway crossing (carelessly, it is averred) that the passing train frightened the horse, and whatever injuries plaintiff sustained by reason of the horse becoming frightened and overturning the vehicle, were due to his own carelessness. The answer then charges plaintiff with negligence in approaching near the train without looking out for it, when he had ample opportunity to observe it before he drove in proximity to the crossing and the moving train; that he was well acquainted with the surroundings and if he had exercised ordinary care, and kept a reasonable distance from the crossing, the accident would not have occurred; that the accident was caused and contributed to by plaintiff's own carelessness in the respects stated. Those allegations of the petition not expressly admitted were denied. A replication was filed which amounted to a general denial of the charge of contributory negligence preferred in the answer, a verdict was returned for defendant, and this appeal was taken by plaintiff, who assigns for errors certain rulings on the instructions and the refusal to permit him to introduce in evidence the municipal ordinance regulating the speed of trains. As to the ordinance it may be said that though the petition pleads it, it does not count on the excessive speed of the train as the cause of the accident, and, indeed, there is no evidence tending to prove it was a cause. The proof goes to show the horse took fright at the proximity and appearance of the train as it passed over the crossing with steam escaping. Moreover, the ordinance, if relevant at all, was part of plaintiff's case in chief, but was offered in rebuttal, though it had no tendency to rebut any fact the defendant had proved. Its rejection was not erroneous.
We know of no Missouri decision holding a railway company responsible in damages for omitting to give the crossing signals when an accident occurs in consequence of the omission, but the injury is not due to a collision with the train. It has been said by the Supreme Court the statute providing for the signals, was enacted for the benefit of persons at railway crossings or approaching them. [Bell v. Railroad, 72 Mo. 50, 58.] This question came before the Supreme Judicial Court of Massachusetts on facts quite similar to those before us, in the case of Morton v Railroad, 113 Mass. 366, wherein it appeared the plaintiff, because of the neglect of the railroad company's servants to sound a signal at a highway crossing and have a flagman there to warn persons of the approach of the train, drove nearer the crossing than he otherwise would, in consequence of which his horse took fright and threw him out of the vehicle, inflicting injuries. It was contended in said cause the statute of Massachusetts requiring a bell or whistle of a locomotive to be rung or sounded, was intended only to protect passengers at highway crossings from actual collisions; or, at most, from taking positions where there was imminent danger of a collision with a train; and not to protect them from the danger of horses taking fright at the noise of trains when such noises were those usually incident to the movement of trains or the escape of steam. It is conceded in...
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