Lane v. The Missouri Pacific Railway Co.
| Decision Date | 23 December 1895 |
| Citation | 33 S.W. 645,132 Mo. 4 |
| Parties | Lane v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.
Reversed.
Elijah Robinson for appellant.
(1) The demurrer to the evidence should have been sustained. It was the duty of plaintiff's husband, when approaching the railroad crossing, to use every reasonable precaution to avoid the accident. He was bound to look and listen for an approaching train. If there were difficulties in the way of either seeing or hearing, he was on account thereof required to exercise the greater care. Beach on Con. Neg. [2 Ed.] sec. 180; Fletcher v. Railroad, 64 Mo. 484; Harlan v. Railroad, 64 Mo. 480; Henze v Railroad, 71 Mo. 636; Zimmerman v. Railroad, 71 Mo. 476; Purl v. Railroad, 72 Mo. 168; Turner v Railroad, 74 Mo. 602; Kelley v. Railroad, 75 Mo. 138; Lenix v. Railroad, 76 Mo. 86; Hixson v. Railroad, 80 Mo. 340; Stepp v. Railroad, 85 Mo. 229; Kelley v. Railroad, 88 Mo. 534; Butts v. Railroad, 98 Mo. 272; Hanlan v. Railroad, 104 Mo. 381; Dlauhi v. Railroad, 105 Mo. 645; Boyd v. Railroad, 105 Mo. 371; Weller v. Railroad, 120 Mo. 636; Fleming v. Railroad, 49 Cal. 253; Chase v. Railroad, 78 Me. 346; Merkle v. Railroad, 49 N. J. L. 473; Seefeld v. Railroad, 70 Wis. 216; Mynning v. Railroad, 64 Mich. 93; Mantel v. Railroad, 33 Minn. 62; Haines v. Railroad, 41 Iowa 227; Mahlen v. Railroad, 49 Mich. 585; Benton v. Railroad, 42 Iowa 192; Railroad v. Holmes, 3 Wash. 202; McCrary v. Railroad, 31 F. 531; Tucker v. Duncan, 9 F. 867; McCall v. Railroad, 54 N.Y. 642; Hayes v. Railroad, 47 Mich. 401; Schaefert v. Railroad, 62 Iowa 624. The undisputed evidence, introduced by plaintiff, in the case shows that if the deceased had either looked or listened he could have discovered the approach of the train in time to have avoided the accident. (2) The court committed error in excluding evidence offered by defendant to show that deceased had been in the habit of becoming intoxicated. This evidence had an important bearing on the question of contributory negligence. If the deceased was intoxicated at the time of the accident, he was not in a condition to exercise that degree of care which the law required of him. The fact as to whether he had been, for sometime immediately preceding the accident, in the habit of becoming intoxicated, tended directly to explain his condition on the night of the accident and was, therefore, admissible. Ins. Co. v. Weide, 11 Wall. 438; Belden v. Lamb, 17 Conn. 441; Trull v. True, 33 Me. 367; 3 Wait, Law & Pr., 272; Budd v. Hoffheimer, 52 Mo. 297; Caughlin v. Haeusler, 50 Mo. 126; McKenney v. Dingsley, 4 Greenleaf, 172; Allison v. Matthieu, 3 John. 234; Hall v. Naylor, 18 N.Y. 588; Butler v. Watkins, 13 Wall. 456; Stolp v. Blair, 68 Ill. 541; Smith v. Montgomery, 5 Mon. 502; Dwight v. Brown, 8 Conn. 83; Bush v. Guion, 6 La. Ann. 798; Maggi v. Cutts, 123 Mass. 535; Chamberlain v. Enfield, 43 N.H. 356; Whitney v. Leominster, 136 Mass. 25. (3) The court committed error in giving plaintiff's instruction number 1. The statute required the defendant railway company either to ring the bell or sound the whistle; but did not require both. Section 2608, Revised Statutes, 1889. By this instruction the jury was told that if plaintiff's husband was struck and killed by an engine on defendant's road on account of failure of defendant's agents and servants, either to ring the bell or sound the whistle, then the verdict should be for plaintiff. Terry v. Railroad, 78 Mo. 587; VanNote v. Railroad, 70 Mo. 642. Said instruction also told the jury that contributory negligence on the part of plaintiff must be proven by the defendant, thus practically excluding from consideration the evidence introduced by the plaintiff tending to show contributory negligence. Plaintiff's instruction number 2 is subject to the same criticism. The fact that instructions were given on the part of defendant which correctly declared the law on this subject, did not cure the error. Where the instructions are conflicting, the jury may have taken the erroneous instruction for their guide. State v. Herrell, 97 Mo. 105; Spillane v. Railroad, 111 Mo. 555; Wilmot v. Railroad, 106 Mo. 535; Bank v. Hatch, 98 Mo. 377; Price v. Railroad, 77 Mo. 508; Stevenson v. Hancock, 72 Mo. 612. (4) The defendant did in point of fact file its bill of exceptions in time; and did in point of fact except to the action of the court in giving plaintiff's instructions. The facts are fully set forth in defendant's additional abstract; and of these facts plaintiff's counsel were fully aware when they prepared their brief, because they had before them the bill of exceptions.
E. P. Gates, Wm. H. Wallace and T. B. Wallace for respondent.
(1) The court did not err in refusing to direct a verdict for the defendant. R. S. 1889, sec. 2608; Crumpley v. Railroad, 111 Mo. 152; Huckshold v. Railroad, 90 Mo. 548; Kenney v. Railroad, 105 Mo. 270; Weller v. Railroad, 120 Mo. 635; Petty v. Railroad, 88 Mo. 306; Kennedy v. Railroad, 45 Mo. 255; Tabor v. Railroad, 46 Mo. 353; Johnson v. Railroad, 77 Mo. 546; Cosgrove v. Railroad, 87 N.Y. 88; Hendrickson v. Railroad, 49 Minn. 245; Voak v. Railroad, 75 N.Y. 320; Bates v. Railroad, 60 Conn. 259; Norton v. Railroad, 113 Mass. 366; Strong v. Railroad, 61 Cal. 326; Railroad v. McGaha, 19 Ill.App. 342; Ransom v. Railroad, 62 Wis. 178; Wakefield v. Railroad, 37 Vt. 330; Hart v. Railroad, 56 Iowa 166; Hahn v. Railroad, 78 Wis. 396; Schum v. Railroad, 107 Pa. St. 8; Massoth v. Railroad, 64 N.Y. 524; McNeal v. Railroad, 131 Pa. St. 184; Railroad v. McClung, 59 F. 860; Robinson v. Railroad, 161 Mass. 148. (2) The court did not err in excluding the inquiry whether the deceased was in the habit of becoming intoxicated. Such evidence, if the defendant could have elicited any, would not have tended to prove that the deceased was intoxicated at the time of the accident. 2 Wharton on Evidence, sec. 1287; 1 Wharton on Ev., secs. 29, 40; Boggs v. Lynch, 22 Mo. 563; Thompson v. Bowie, 4 Wall. 463; Iron Co. v. Lundberg, 121 U.S. 451; Railroad v. Lee, 60 Ill. 501; Hampson v. Taylor, 15 R. I. 83; Jackson v. Smith, 7 Cowan, 717; Newsom v. Railroad, 62 Ga. 339; Railroad v. Brunson, 63 Ga. 504; Patrick v. Howard, 47 Mich. 40; Whitney v. Gross, 140 Mass. 232; Hatt v. Nay, 144 Mass. 186; Railroad v. Glasscott, 4 Col. 270; McGuire v. Railroad, 115 Mass. 239; Gahagen v. Railroad, 1 Allen, 187; Railroad v. Gautts, 38 Kan. 608; Miller v. Boykin, 70 Ala. 469; Tower v. Rutland, 56 Vt. 28; Bank v. Bank, 60 N.Y. 278; Wentworth v. Smith, 44 N.H. 419; Hays v. Railroad, 15 Mo.App. 583. (3) Plaintiff's instruction defining the duty of the defendant as to sounding the bell or whistle is not open to objection. It properly declares the law. Crumpley v. Railroad, 111 Mo. 152. (4) The plaintiff's instructions on the burden of proof are not objectionable. R. S. 1889, sec. 2608; Huckshold v. Railroad, 90 Mo. 548; Crumpley v. Railroad, 111 Mo. 152; Murray v. Railroad, 101 Mo. 240; Thompson v. Railroad, 51 Mo. 190; Lloyd v. Railroad, 53 Mo. 509. (5) Appellant's abstract does not show any objection made or exception saved to the giving of the instructions on the part of the plaintiff. The propriety of said instructions is, therefore, not raised. (6) The appellant's abstract does not show the filing of any bill of exceptions in the case and for that reason none of the points raised by appellant can be considered. Johnson v. Carrington, 120 Mo. 315; Brand v. Cannon, 118 Mo. 595; Mason v. Pennington, 53 Mo.App. 118.
In Banc.
Plaintiff, the widow of John H. Lane, brought this action against defendant company to recover damages for the death of her husband, which was caused by his coming in contact with the engine of a moving train of defendant's at a point in the town of Leeds where the Raytown public road crosses the track of defendant's railway.
The train at the time of the collision was moving south and Lane was going east. The date was the twenty-ninth of July, 1892, and the hour about 9:45 P. M. This intersection of the lines of the highways occurs practically at right angles, the public road running east and west, the railway north and south, and the ground for at least a quarter of a mile westward from the crossing is substantially on a level with that intersection and the roads which form it, and the same is true of the ground for over one fourth of a mile northward of the Raytown road. Something like two hundred yards north of the crossing, and extending northward along the tracks for a distance of about one hundred yards, a cut begins, which at the deepest point is but slightly over two feet deep. A diagram of the scene of the accident and of the surrounding country is hereto subjoined, and will assist in understanding the situation.
At the point of the accident and for a mile or so northward, the track of the Kansas City, Osceola & Southern Railroad (called by the witnesses the Osceola road), runs parallel to, and about sixty-five feet west of, the Missouri Pacific track. These railroad tracks on the east, and the Raytown road on the south, form an angle in which, at a distance of about one-hundred and fifty feet west of defendant's track, and something like one hundred feet north of the center of the Raytown road, stood the dwelling house of Renick. Within that angle a meadow stretches northward from that dwelling house for a distance of eight hundred and seventy feet above the crossing, and the meadow extends about one fourth of a mile westward of the Osceola road's right of way. At the north line of the meadow begins a corn field of equal extent, and adjoining, that on the north was a woodland pasture. Between...
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