Hayden v. Missouri, K. & T. Ry. Co.

Decision Date12 November 1894
Citation124 Mo. 566,28 S.W. 74
CourtMissouri Supreme Court
PartiesHAYDEN v. MISSOURI, K. & T. RY. CO.

In an action against a railroad company for the death of plaintiff's husband at a crossing, it appeared that prairie grass 6 or 7 feet tall grew on defendant's right of way to within 6 feet of the track, and the approach to the track began in a mudhole, in which there was a wagon wreck, making it necessary for deceased to drive nearer the tall grass than ordinarily, and upon lower ground. Deceased, who was hard of hearing, was elevated some 5½ feet by his wagon box and seat, and the train, approaching on a level track, was distant 150 feet from the crossing at the time deceased was at the point to which he must have driven to pass the wagon wreck, which was 15 or 20 feet from the crossing. He was driving about 3 miles an hour, and the train was approaching at a speed of 30 miles an hour. Held, that the evidence showed deceased negligent in not looking for an approaching train over the grass.

Error to circuit court, Monroe county; Thomas H. Bacon, Judge.

Action by Nancy Hayden against the Missouri, Kansas & Texas Railway Company to recover damages for the death of her husband. Defendant had judgment, and plaintiff brings error. Affirmed.

R. B. Bristow, for plaintiff in error. Jackson & Montgomery, for defendant in error.

BRACE, J.

This is an action for damages for the death of plaintiff's husband, who was struck and killed by one of defendant's passenger trains, on a public-road crossing about two miles west of Monroe City, about noon on the 1st day of September, 1891. The petition charges that his death was caused by the negligence of the defendant in allowing prairie grass and weeds to grow upon its right of way around and near said crossing, so as to obstruct the view of its tracks and trains; in permitting said crossing to become and remain obstructed with holes and ruts, and the wreck of broken wagons and vehicles, so as to delay and impede the quick and safe passage of persons and vehicles over its tracks at said crossing; and in failing to sound the whistle or ring the bell on the approach of its train to said crossing, as required by law. The answer was a general denial, and a plea of contributory negligence, upon which issue was joined by reply. At the close of the plaintiff's evidence the defendant demurred to its sufficiency, and the court overruled its demurrer. At the close of all the evidence the defendant again demurred to the evidence, and, the demurrer being sustained, the plaintiff took a nonsuit, with leave to move to set same aside, and, the court having refused to set the same aside upon motion duly made thereafter, the plaintiff brings the case here by writ of error.

1. There was substantial evidence tending to prove a failure by defendant's servants managing the train to give the statutory signals required on its approach to the crossing on which the plaintiff was killed, and the only theory upon which the court's action in taking the case from the jury can be sustained, is that the evidence disclosed the fact that the deceased was guilty of negligence which contributed directly to his death. It appears from the evidence that the deceased was a farmer, aged about 64 years, somewhat hard of hearing, who lived about five miles southwest of the crossing on which he was killed, and which was on the road he usually traveled from his home to Monroe City. At the crossing the railroad runs east and west, and the public road north and south. He was struck by the locomotive of one of defendant's passenger trains going west from Monroe City, a few minutes behind time, at the rate of about 30 or 35 miles an hour, while he was in the act of crossing the track from the south, driving a two-horse team, hauling a common farm wagon, loaded with wood. He was seated on a spring seat elevated about 5½ or 6 feet from the ground. The railroad track from the crossing to Monroe City is on a straight line. At a point about one-half mile east of the crossing the track passes over a sag...

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