37 S.W. 198 (Mo. 1896), Spillane v. Missouri Pacific Railway Company

Citation:37 S.W. 198, 135 Mo. 414
Opinion Judge:Gantt, P. J.
Party Name:Spillane, Plaintiff in Error, v. Missouri Pacific Railway Company
Attorney:R. H. Hamilton, R. E. Ball, and Fyke, Yates & Fyke for plaintiff in error. Robinson & Carkener for respondent.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur. Sherwood and Burgess, JJ., concur.
Case Date:October 07, 1896
Court:Supreme Court of Missouri
 
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Page 198

37 S.W. 198 (Mo. 1896)

135 Mo. 414

Spillane, Plaintiff in Error,

v.

Missouri Pacific Railway Company

Supreme Court of Missouri, Second Division

October 7, 1896

Error to Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

R. H. Hamilton, R. E. Ball, and Fyke, Yates & Fyke for plaintiff in error.

(1) The ordinance excluded by the court provides, "One or more watchmen shall be employed * * * to be stationed at each of the crossings hereinafter named, whose duty it shall be by day and night, to notify all persons about to cross the railroad track at any such crossing, of the approach of any locomotive, tender or car." The failure of defendant to have such watchman at the crossing of Grand avenue and Front street, is one of the grounds of negligence alleged in the petition. The mere fact that the boy was not struck immediately upon the crossing is immaterial, because, if the watchman had been at his post of duty, he might have seen the boy and warned him of the approaching train. It can not be contended that the watchman was called upon to watch simply between the four corners of the crossing, especially in view of the circumstances of this case, which show that people frequently passed diagonally across Front street, with wagons and teams and otherwise. Such persons were entitled to the protection of these ordinances, as fully as persons who desired to cross straight across the street. (2) Defendant's third instruction is erroneous. Spillane v. Railroad, 111 Mo. 564. (3) Defendant's fifth instruction is erroneous. Kelly v. Union Railway and Transit Co., 95 Mo. 279-285; Dunkman v. Railroad, 95 Mo. 232. (4) Defendant's seventh instruction is erroneous. It selects out a part of the facts and bases the declaration of law upon them, ignoring the remainder. This is improper. Barr v. Kansas City, 105 Mo. 557-559. (5) For the reasons above stated the court erred in overruling plaintiff's motion for a new trial.

Robinson & Carkener for respondent.

(1) The city ordinance requiring a watchman to be kept at Grand avenue crossing was properly excluded. Bell v. Railroad, 72 Mo. 50; Hardy v. Railroad, 42 N.Y. 468; Railroad v. Feathers, 10 Lea (Tenn.), 103. (2) The trial court did not err in giving defendant's third instruction. Ridenhour v. Railroad, 102 Mo. 270; Tucker v. Railroad, 124 N.Y. 308; Wendell v. Railroad, 91 N.Y. 420; Reynolds v. Railroad, 58 N.Y. 248. (3) Nor did the trial court err in giving instruction number 5 asked by defendants. (4) If the accident was caused by the plaintiff standing by the side of the track with the ice tied to his arm so situated as to be caught by the passing engine, then the speed of the train whether lawful or unlawful could not be held to have been the proximate cause of the accident. Railroad v. Staley (Ohio), 19 Am. and Eng. R. R. Cases, 381; McClary v. Railroad, 3 Neb. 53; Lowery v. Tel. Co., 60 N.Y. 198; Railroad v. Reeves, 10 Wall. 176; Hoodley v. Trans. Co., 115 Mass. 305.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Page 199

[135 Mo. 417] Gantt, P. J.

This is an action for damages resulting from personal injuries sustained by plaintiff on the thirteenth of October, 1888. This is the second appeal in the cause. The first is reported in 111 Mo. 555. On the last trial the jury returned a verdict for defendant from which plaintiff brings error.

The accident occurred at a point on defendant's railway in Kansas City two hundred and sixty-five feet east of the east line of Grand avenue where said avenue intersects defendant's tracks on Front street. At this point and for several hundred feet both east and west the defendant's railway is located on and along Front street in said city. Grand avenue runs north and south and the railway east and west. Across Grand avenue and at the point where the accident occurred, the defendants' railway consists of four parallel tracks.

Beginning at the south the first track is known as the outgoing or east bound main track, the second, as the incoming or west bound track, the other two are team or storage tracks used in loading or unloading freight. East of Grand avenue the tracks are straight but three hundred or four hundred feet west of Grand avenue there is a curve so that a person coming from the west along the railroad track could not see beyond Grand avenue until after having passed this curve, nor [135 Mo. 418] could a person on the track east of Grand avenue see a train coming from the west until after it rounded this curve.

Coming from the west there is a considerable up grade until near Grand avenue and from that point east the track is practically level. The defendant's freight depot is located on the north side of the tracks and on the west side of Grand avenue and about fifty feet from the west line of said street and its passenger depot is located on the south side of the tracks and east side of Grand avenue. The platform of this depot extends from the east line of Grand avenue eastwardly from one hundred to two hundred feet, as variously estimated by the witnesses.

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