28 S.W. 74 (Mo. 1894), Hayden v. The Missouri, Kansas & Texas Railway Company

Citation:28 S.W. 74, 124 Mo. 566
Opinion Judge:Brace, J.
Party Name:Hayden, Plaintiff in Error, v. The Missouri, Kansas & Texas Railway Company
Attorney:R. B. Bristow for plaintiff in error. Jackson & Montgomery for defendant in error.
Case Date:November 12, 1894
Court:Supreme Court of Missouri
 
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Page 74

28 S.W. 74 (Mo. 1894)

124 Mo. 566

Hayden, Plaintiff in Error,

v.

The Missouri, Kansas & Texas Railway Company

Supreme Court of Missouri, First Division

November 12, 1894

Appeal from Monroe Circuit Court. -- Hon. T. H. Bacon, Judge.

Affirmed.

R. B. Bristow for plaintiff in error.

(1) The traveler had the same right upon the crossing as the train had, and it was as much the duty of the train men to keep a lookout as the traveler, enhanced by the greater danger from the machinery used by the defendant. Eswin v. Railroad, 96 Mo. 290; White v. Railroad, 34 Mo.App. 57. (2) The defendant was negligent in permitting a mudhole in the roadway on its crossing, and to permit a broken wagon to remain in the roadway that compelled the traveler to go around it, which not only impeded his passage but forced him in a position where the view was more obstructed. Tetherow v. Railroad, 98 Mo. 74. (3) The defendant was negligent in approaching this crossing in not sounding whistle or bell, and on that the plaintiff was entitled to go to the jury. Murray v. Railroad, 101 Mo. 236; Hanlon v. Railroad, 104 Mo. 388. (4) The defendant was guilty of the grossest kind of negligence to allow prairie grass seven feet high to grow on its right of way close up to the roadbed and up to and adjoining the fence of the public road, so shutting out the view that a traveler on the highway could not see the approaching train until he was up on the roadbed, too late to avoid the fatal collision. Petty v. Railroad, 88 Mo. 306; Kelly v. Railroad, 88 Mo. 534. (5) If a company permits brush, etc., to grow on its right of way and fails to give signals, it is guilty of negligence. 80 Ill. 339; 87 Ill. 78; 70 N.Y. 119.

Jackson & Montgomery for defendant in error.

(1) The plaintiff's husband was guilty of contributory negligence in failing to look and listen before he attempted to cross the railroad track, and his failure to do so being a proximate cause of his death, his widow can not recover. Harlan v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Turner v. Railroad, 74 Mo. 602; Stepp v. Railroad, 85 Mo. 229; Fox v. Railroad, 85 Mo. 679; Taylor v. Railroad, 86 Mo. 458; Boyd v. Railroad, 105 Mo. 371. (2) If deceased only looked and listened at a place where he could not discover a train, he was guilty of contributory negligence which prevented a recovery. He should have put himself in a position where he could have discovered the approaching train. Turner v. Railroad, 74 Mo. 602; Hixon v. Railroad, 80 Mo. 336; Moberly v. Railroad, 98 Mo. 183. (3) The men running the train had the right to presume that a traveler would use ordinary care, would heed the usual signals, and would not pass upon the track in front of an approaching train. Bell v. Railroad, 72 Mo. 50. (4) It was the deceased's duty to look and listen notwithstanding a failure to give proper signals. Henze v. Railroad,...

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