Gratiot v. Missouri Pac. Ry. Co.

• Decision Date: 20 March 1893
• Parties: GRATIOT v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

21 S.W. 1094

116 Mo. 450

GRATIOT v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

March 20, 1893.

RAILROAD COMPANIES — ACCIDENT AT CROSSING — CONTRIBUTORY NEGLIGENCE — EVIDENCE — INSTRUCTIONS — EXCESSIVE DAMAGES.

1. In an action against a railroad company for injuries at a railroad crossing in a city, it appeared that plaintiff, on driving within 7 or 8 feet of the track, stopped his horse, and stood up in his buggy, where he had a perfect view of the tracks for a distance of 1,200 or 1,400 feet; that he knew it was about the time for a certain mail train to pass; that he saw an engine about 800 yards away, which he supposed was a switch engine at certain smelting works; that he heard a whistle, which he took to be at a station 1,200 yards away; that he then sat down, and started across the tracks, when his horse was struck by the engine seen by him, which

was attached to such mail train; and that the train was running at a rate of speed eight or ten times faster than was permitted by the ordinances of such city. The evidence as to whether the whistle was sounded and the bell rung for the crossing was conflicting. Held, that the question of plaintiff's contributory negligence was for the jury, and instructions asked by defendant in the nature of a demurrer to the evidence were properly refused. 16 S. W. Rep. 384, and 19 S. W. Rep. 31, affirmed.

2. In such action the court charged that it was plaintiff's duty to exercise that degree of care that an ordinarily careful and prudent person, under like circumstances, would have exercised, and a failure to exercise such degree of care would render him guilty of contributory negligence; and that, if he approached the crossing without paying any attention to his own safety, but trusted to the obligations of defendant to warn him of an approaching train, and was injured by reason thereof, they should find for defendant. Held, that such instructions fairly submitted the issue as to plaintiff's contributory negligence to the jury, and instructions asked requiring a higher degree of care were properly refused. 16 S. W. Rep. 384, affirmed.

3. A city has the power, as a police regulation, to limit the speed of railroad trains within its limits by ordinance, so long as the same is not unreasonable; and an ordinance limiting the speed of such trains to six miles per hour is both reasonable and humane. 16 S. W. Rep. 384, affirmed.

4. In such action it appeared that plaintiff was a physician, 60 years old, and earned about $2,500 a year; that his nose and three ribs were broken, and his spine and hip were injured; that he is permanently paralyzed on one side; that some of his teeth were broken and knocked out; and that he is an invalid for life, so that his earnings are much reduced. Held, that a verdict for $10,175 was not excessive. Black, C. J., and Gantt, J., dissenting. 16 S. W. Rep. 384, affirmed.

Sherwood, J., dissenting.

In banc. Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by Charles B. Gratiot against the Missouri Pacific Railway Company to recover damages for injuries received at a railroad crossing. A judgment entered on the verdict of a jury in favor of plaintiff was affirmed in department 2 on appeal, (16 S. W. Rep. 384,) and on rehearing, (19 S. W. Rep. 31.) Subsequently a motion to set aside the order overruling the motion for a rehearing was sustained, and a rehearing granted, and the case transferred to the court in banc. Original judgment affirmed.

The other facts fully appear in the following statement by BURGESS, J.:

The plaintiff, a physician, aged 60 years, brought this action in the circuit court for the city of St. Louis, to recover damages on account of injuries sustained in a collision with a passenger train on defendant's railway, at a point where it is crossed by a highway commonly known as "Campbell's Road." The accident occurred within the limits of the city of St. Louis, at a point distant from the Union Depot a little over 5½ miles. From the Union Depot along the defendant's railway to the western boundary of the city limits is about 8 miles. By his petition, the respondent relied upon the three following grounds for a recovery: First. The failure to ring the bell of the engine 80 rods before reaching the crossing, as required by statute. Second. Moving the train at a speed exceeding 6 miles per hour, the limitation imposed by ordinance of the city of St. Louis, Third. A failure to constantly sound the bell, as required by ordinance, when trains are moving. The answer was a general denial, with the plea of contributory negligence on the part of plaintiff.

With respect of the details of the respondent's conduct immediately preceding and at the time of the casualty he is the only witness. The prominent points of reference in the testimony are "the bridge," Howard's station, the smelting works, Cheltenham, and Campbell's road. From the Union Depot to Cheltenham it is 5¼ miles; Campbell's road crossing is about 150 yards west of Cheltenham; Howard's station is ½ mile east of Cheltenham; the bridge is 200 or 300 yards east of Howard's; and the smelting works are a little west of Howard's, and between Howard's and Cheltenham. The defendant's railway is a double track between the Union Depot and Kirkwood, a suburban town, 14 miles distant; and the trains, both freight and passenger, upon it, are frequent in both directions. The north track, regarding it as running east and west, is used by the west-bound trains, and the south track by the east-bound.

Dr. Gratiot had lived and practiced medicine at Cheltenham for 45 years, was perfectly familiar with the locality and its surroundings, and with the schedules of time of defendant's trains, and knew from daily observation the rate of speed at which the train that occasioned the injury ran over that part of the road passing through Cheltenham and vicinity. He was struck by the through express train, which leaves the Union Depot at 9 o'clock in the morning, and which, he says, was due at Cheltenham at about 9:10; that on the morning he received his injuries, and before venturing across the railroad track at Campbell's road, at the time he was hurt, he had gone quite up to the crossing, and, because he was unadvised whether the express train had passed along, he would not venture over, although he at that time saw no evidence of an approaching train from a perfect view of the tracks in both directions. Instead, however, of crossing at that time, he went to the house of a lady friend for the purpose of ascertaining the exact time of the day, so that he might know positively whether the express train had passed along or not. He ascertained the time, and, after waiting a little while, proceeded down to the crossing, along the Manchester road, which runs, in that vicinity, parallel with and just north of the defendant's railway for a mile and a half, until he got within 7 or 8 feet of the railroad track, where he stopped, having a perfect view of the tracks in both directions, and especially to the east, for a distance of 1,200 or 1,400 yards, as far as the bridge immediately east of Howard's; raised himself up in his buggy and looked to the east, where he saw an engine facing in his direction. He also heard a whistle, which he took to be a whistle at the bridge for Howard's station. He then immediately resumed his seat, turned his horse to effect a crossing, saw a waver on his glasses, attempted to pull his horse, whose front feet were then nearly on the north rail of the north track, back; was immediately struck and injured. After seeing the engine, as he supposes, at a distance of 800 or 1,000 yards, and after hearing the whistle, he took no further notice, but immediately attempted a crossing, as he said, supposing that the engine which he saw was a switch engine at the smelting works, and the whistle which he heard was a whistle at the bridge east of the smelting works. He gave no expression of opinion whether the glimpse or slight view which he had of the engine, supposed by him to be a switch engine at the smelting works, enabled him to judge whether the engine was moving or standing still. It is conceded that the train by which plaintiff was injured was moving at a speed of 35 or 40 miles an hour, though some of the witnesses for the plaintiff gave it as their opinion that the train was moving much faster.

At the close of the plaintiff's evidence, as well as all of the evidence, the defendant prayed instructions in the nature of a demurrer to the evidence, which were refused. It further prayed the following instructions, which the court refused, and defendant excepted: "(3) The court instructs the jury that if they believe from the evidence that the plaintiff could have avoided the collision which resulted in his injury by stopping his horse and buggy to look and listen carefully and constantly for an engine or train, both up and down defendant's track, before attempting to drive over the said track, and failed to do so, they must find a verdict for the defendant. (4) If the jury believe from the evidence in this case that plaintiff attempted to drive his horse and buggy onto defendant's tracks at the crossing on Campbell's road without first having stopped said horse and buggy to look and listen carefully and constantly, both up and down said track, for an approaching engine and train, and was thereby injured, they must find a verdict for the defendant, even though they find from the evidence that defendant's servants in charge of the engine were also at the same time guilty of negligence. (5) The court instructs the jury that it was the duty of the plaintiff, at the time and place in question, while he was approaching on Campbell's road to the tracks of defendant's railroad crossing said road, to stop his horse and buggy, and to look and listen carefully and constantly, both up and down said tracks, for an approaching engine or train, before attempting to...