19 S.W. 820 (Mo. 1892), Crumpley v. Hannibal & St. J.R. Co.
|Citation:||19 S.W. 820, 111 Mo. 152|
|Opinion Judge:||Thomas, J.|
|Party Name:||Crumpley v. The Hannibal & St. Joseph Railroad Company, Appellant|
|Attorney:||C. A. Mosman for appellant. James W. Boyd for respondent.|
|Case Date:||May 31, 1892|
|Court:||Supreme Court of Missouri|
Appeal from Nodaway Circuit Court. -- Hon. C. A. Anthony, Judge.
(1) The demurrer to the evidence under the first count should have been sustained. It was the duty of Samuel Crumpley in approaching the crossing to exercise the degree of care commensurate with the danger to be apprehended there, and he should have approached the crossing under the apprehension that a train might be expected at any moment. He was familiar with the wagon road crossing, and he knew that the regular train was due and had not gone by. If the view of the train from the highway was obstructed, this should only have increased his vigilance. Stepp v. Railroad, 85 Mo. 235; Fletcher v. Railroad, 64 Mo. 490; Railroad v. Huston, 95 U.S. 697; Dlauhi v. Railroad, 105 Mo. 654; Seefeld v. Railroad, 70 Wis. 276. (2) It clearly appears, without any conflict in the evidence, from the plaintiff's own witnesses, that Mr. Crumpley was guilty of negligence proximately contributing to the injury. Hixon v. Railroad, 80 Mo. 340; Boyd v. Railroad, 105 Mo. 371; Harlan v. Railroad, 64 Mo. 480; Butts v. Railroad, 93 Mo. 437; Turner v. Railroad, 74 Mo. 602; Kelley v. Railroad, 88 Mo. 546; Railroad v. Lee, 68 Ill. 576; Coneley v. Railroad, 88 N.Y. 336; Railroad v. Richter, 42 N. J. L. 180; Bloomfield v. Railroad, 74 Iowa 608; Shafert v. Railroad, 17 N.W. 894; Matti v. Railroad, 37 N.W. 54; Haas v. Railroad, 47 Mich. 401; Pence v. Railroad, 19 N.W. 785. (3) The giving of plaintiff's first and second instructions was error. The first was in the nature of an abstract proposition of law and was misleading. The second was an attempt to apply that abstract proposition to the facts in the case. Neither of these instructions correctly declared the law. Terry v. Railroad, 89 Mo. 85; Van Note v. Railroad, 70 Mo. 642; Halfarty's case, 82 Mo. 90; Turner v. Railroad, 78 Mo. 578. The error committed in the first instruction was strongly emphasized in the second, and repeated in the seventh. The jury must have been impressed with the erroneous idea conveyed in their minds by the language of these instructions. Scovill v. Glasner, 79 Mo. 457; Gay v. Gilliland, 92 Mo. 258; Frederick v. Allgaier, 88 Mo. 603; Staples v. Canton, 69 Mo. 594; State v. Herrell, 97 Mo. 110; Stone v. Hunt, 94 Mo. 481. (4) It was error for the court to give to the jury plaintiff's seventh instruction. If there is any case where such a presumption as mentioned in said instruction could arise, it would only be in a case where the defendant failed and neglected to both sound its whistle and ring its bell. The law raises no presumption from the simple failure of the defendant to give one of these signals. Terry v. Railroad, 89 Mo. 587. See cases cited above on this point.
(1) The demurrer to the evidence should not have been given. It was not error to refuse it. First. The deceased probably stopped, looked and listened before going onto the crossing. The evidence does not show that he did not, but if he had done so he could have heard the train in the absence of the proper signals. The train was running at the rate of thirty miles per hour. The presumption is that he was in the exercise of ordinary care and diligence at all times in the discharge of his duties, until the contrary be shown, and it devolves upon the defendant to show the want of proper care on the part of the deceased, and there is no evidence showing any want of proper care on his part. Parsons v. Railroad, 94 Mo. 286; Buesching v. Gaslight Co., 73 Mo. 219; O'Connor v. Railroad, 94 Mo. 150; Johnson v. Railroad, 77 Mo. 546; Thompson v. Railroad, 51 Mo. 190; Petty v. Railroad, 88 Mo. 306; Donohue v. Railroad, 91 Mo. 357-363. Second. Even if the defendant had shown that the plaintiff did not look or listen, still...
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