Newton v. Wabash R. Co.

• Citation: 152 Mo. App. 167,132 S.W. 1195
• Parties: NEWTON v. WABASH R. CO.
• Decision Date: 05 December 1910
• Court: Court of Appeal of Missouri (US)

132 S.W. 1195

152 Mo. App. 167

NEWTON v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

December 5, 1910.

Rehearing Denied January 2, 1911.

1. TRIAL (§ 156)—DEMURRER TO EVIDENCE— DETERMINATION.

The court for the purposes of a demurrer, interposed by defendant to the evidence of plaintiff, will accept as facts those proved by substantial evidence.

2. RAILROADS (§ 312) — OPERATION — STREET CROSSING—NEGLIGENCE.

A railway company backing an engine over a busy street crossing, on a dark night without lights, and without ringing the bell or giving any warning, is guilty of gross negligence, and is liable for injuries caused to one free from contributory negligence.

3. DEATH (§ 58) — ACTION FOR NEGLIGENT DEATH—EVIDENCE—PRESUMPTIONS.

Where in an action for negligent death, the evidence disclosed negligence of defendant as a proximate cause of the accident, the law must presume that decedent was in the exercise of reasonable care, and the burden was on defendant of pleading and proving contributory negligence.

4. NEGLIGENCE (§ 98)—CONTRIBUTORY NEGLIGENCE—COMPARATIVE NEGLIGENCE.

The contributory negligence of decedent is established as a matter of law precluding recovery for his death, where his negligence, however slight, was a link in the chain of direct causal events, notwithstanding the gross negligence of defendant.

5. RAILROADS (§ 346)—CROSSING ACCIDENT— PRESUMPTIONS—EVIDENCE.

One in attempting to cross a railroad track, where he was struck by an engine and killed, will be presumed to have been in the exercise of proper care, but where there is direct evidence to the contrary, the issue must be solved in the light of the evidence.

6. RAILROADS (§ 330)—CROSSINGS—CONTRIBUTORY NEGLIGENCE.

A person in crossing a railroad track must look and listen before entering the sphere of danger, if, by so doing, he can see and hear an approaching train, and, while he may presume that the company will observe reasonable care in the operation of the train, he may not rely exclusively on that presumption.

7. RAILROADS (§ 327)—CROSSINGS—CONTRIBUTORY NEGLIGENCE.

A person with sight and hearing unimpaired was struck and killed by an engine on a street crossing. The engine was backed at night without lights and without giving any kind of warning, but it was not too dark for decedent to see the engine. An arc light a block away was burning and there were lights shining from a depot 200 yards away and from nearer buildings. When decedent entered on the track, the engine could not have been more than 10 or 15 feet away, and he could have seen it had he looked. Held, that he was guilty of contributory negligence as a matter of law precluding a recovery, notwithstanding the negligence in the operation of the engine.

Appeal from Circuit Court, Randolph County; W. H. Martin, Judge.

Action by Bertha Newton against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. L. Minnis and Robertson & Robertson, for appellant. A. P. Terrill and Willard P. Cave, for respondent.

JOHNSON, J.

Plaintiff, the widow of D. W. Newton, deceased, brought this action under section 2864, Rev. St. 1899, as amended by Laws 1905, p. 136 (page 1637, Ann. St. 1906; section 5425, Rev. St. 1909), to recover damages for the death of her husband which she alleges was caused by the negligence of defendant. She prevailed in the trial court, where she recovered judgment for $5,000, and the cause is before us on the appeal of defendant.

Mr. Newton was killed about 8:30 p. m. April 29, 1906, at the crossing of Coates street, a public thoroughfare in Moberly, and tracks in defendant's railroad yard. Coates street was paved and was one of the principal thoroughfares between the east and west portions of the city. It crossed eight tracks running north and south, and Newton was killed on the fourth track from the east. He was going west and stepped in front of a switch engine backing north at speed estimated by the witnesses at from five to ten miles per hour. He was struck by the tender and received injuries from which he died an hour later. Plaintiff does not base her cause of action on any breach of defendant's duty under the "humanitarian doctrine," but alleges the death of her husband was caused by the negligence of defendant in running the engine over the crossing backward with no headlight at the end of the tender, without ringing the bell, and without giving any signal or warning of its approach. The answer is a general denial and a plea of contributory negligence.

The evidence of plaintiff tends to prove the following facts: Newton was 50 years old,...