63 S.W. 360 (Mo. 1901), Hook v. Missouri Pacific Railway Company

Citation:63 S.W. 360, 162 Mo. 569
Opinion Judge:PER CURIAM:
Judge Panel:VALLIANT, J. Brace and Gantt, JJ., concur. VALLIANT, J. --
Case Date:May 21, 1901
Court:Supreme Court of Missouri

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63 S.W. 360 (Mo. 1901)

162 Mo. 569




Supreme Court of Missouri

May 21, 1901

162 Mo. 569 at 591.

Original Opinion of May 21, 1901, Reported at: 162 Mo. 569.

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Judgment affirmed.

VALLIANT, J. Brace and Gantt, JJ., concur.


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[162 Mo. 591] PER CURIAM:

Upon a rehearing the following opinion by Valliant, J., in Division One, is concurred in by Brace and Gantt, JJ.:

[162 Mo. 592] VALLIANT, J. --

This is an action for damages for the killing of plaintiff's minor son in a collision between defendant's train and a wagon driven by plaintiff, in which the child was riding, at a public crossing in or near the city of Lexington. The case was tried by court and jury. There was a verdict and judgment for plaintiff for $ 5,000; after unsuccessful motions for new trial the defendant brings the cause here by appeal.

There is no question raised as to the sufficiency of the pleadings. The crossing on which the collision occurred was admitted, on the trial, to be a traveled public road. The negligence charged in the petition is a failure to observe the statutory requirements to sound a whistle or ring a bell as specified in section 2608, Revised Statutes 1889. The answer is a general denial and contributory negligence on the part of the plaintiff. The answer does not specify in what the alleged negligence of the plaintiff consisted, but no objection on that ground was made to the answer. The case was tried as if the issue was properly presented in the pleadings. The issue was marked out in the instructions, and for the purposes of this appeal that is sufficient.

The testimony on the issue as to whether or not the defendant's servants in charge of the engine drawing the train sounded the whistle or rang the bell, was conflicting. But the verdict of the jury was for the plaintiff on that issue. There was substantial evidence to support it and it is not now a subject for review. It is contended by the counsel for appellant that although the testimony on this point was conflicting, it "so overwhelmingly preponderated in defendant's favor that the verdict of the jury evinces the fact that they were actuated by prejudice and passion." In view of that contention we have not dismissed the subject after merely looking to see if there was some evidence on which to base the finding, but have examined [162 Mo. 593] also to see if, on the whole, the evidence was of such character as to justify the charge that the verdict was the result of prejudice or passion. The plaintiff testified that he heard a faint whistle in the direction of Myrick, which was about a quarter of a mile distant to the west. The defendant's evidence showed that its east-bound train was due to arrive at Myrick just at that time, so it was not unreasonable to conclude that it was the whistle of that train which the plaintiff heard, and perhaps it was that whistle also which some of defendant's witnesses thought they heard. It was, however, not that train, but the west-bound train that collided with plaintiff's wagon. Myrick was the point at which these two trains were to pass each other. There was a good deal of evidence on this issue, and whilst that for the defendant was sufficient to have sustained a verdict if it had been for the defendant, yet the evidence for the plaintiff was of both character and quantity ample to sustain the verdict and to justify the jury against the charge of prejudice or passion. The verdict being for the plaintiff on that question and beyond impeachment, we must, in considering the further question in this case, assume it to be a fact that the whistle was not sounded nor the bell rung.

The question, then, is, was the plaintiff guilty of negligence that contributed to the injury? And since that was submitted to the jury under instructions as favorable to respondent as it could ask, the form that the question here assumes is, does that evidence on this point make out such a case of negligence on the part of plaintiff as that the court should have so declared as a matter of law, and should not have submitted the question to the jury; or does the verdict of the jury, in the light of the evidence, show that it was the result of passion or prejudice?

This is the form in which the learned counsel for respondent [162 Mo. 594] have presented the case in their argument and brief.

The collision occurred at what is called Hoffman's crossing, which is where the public road, indicated on the plat as West Mill street, crosses the respondent's railroad, and seems to be just at the western limit of the city of Lexington. There the railroad runs nearly east and west, and this public road, running nearly north and south, crosses it at right angles. Approaching the railroad crossing fro the north, as the plaintiff was on the morning in question, there is a bluff to your left, which prevents a view of the railroad to the east. This bluff is about forty-five feet high, but it slopes from its highest point at an angle of forty-five degrees to the bottom of the railroad cut. The distance between the foot of this slope and the railroad track is about eight feet. The plaintiff's testimony tended to show that at the crossing a ridge or tongue of land ran down from the bluff to the railroad track, and the bluff, and this tongue or ridge of land was covered with a thick growth of weeds and sunflower stalks from six to nine feet high, so that one approaching the crossing from the north could not see the railroad to the east until he was within six or eight feet of the track, or, as some of the witnesses said, until he was up

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to the track. There was some conflict between the testimony for plaintiff and that for...

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