Fletcher v. Atlantic & Pacific R.R. Co.

• Decision Date: 30 April 1877
• Citation: 64 Mo. 484
• Parties: EDWARD FLETCHER, Respondent, v. THE ATLANTIC & PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

64 Mo. 484

EDWARD FLETCHER, Respondent,

v.THE ATLANTIC & PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1877.

Appeal from the Special Law and Equity Court of Jackson County.

J. N. Litton, for Appellant, cited: Devitt vs. Pacific R. R., 50 Mo. 302; Barton vs. Iron Mountain R. R., 52 Mo. 258; Evans vs. A. & P. R. R. Co., 62 Mo. 59; Smith vs. Union R. R., 61 Mo. 591; Maher vs. Pacific R. R., 64 Mo. 267; Boland vs. Missouri R. R. Co., 36 Mo. 491; Vinton vs. Schwab, 32 Vt. 612; Callahan vs. Warne, 40 Mo. 136; 1 Greenl. Ev. §§ 44, 48; Smith vs. Hann. & St. Joe. R. R. Co., 37 Mo. 292; Norton vs. Ittner, 56 Mo. 352; Owens vs. Hann. & St. Joe. R. R., 58 Mo. 393; Isabel vs. Hann. & St. Joe. R. R., 60 Mo. 482; Shearm. & Redf. Neg., §§ 25, 36, pp. 27, 40; Karle vs. K. C. etc. R. R. Co., 55 Mo. 484; Artz vs. Chicago, R. I. & P. R. R., 34 Iowa, 160; Havens vs. Erie R. W., 41 N. Y. 296; Ernst vs. Hudson River R. R. Co., 39 N. Y., 61; 35 Ib. 9; Wilcox vs. Rome, W. & O. R. R. Co. 39 N. Y. 358; Baxter vs. Troy & Boston R. R. Co., 41 N. Y. 502; Nicholson vs. Erie R W. Co., 41 N. Y. 525; Gonzales vs. New York & Harlem R. R. Co., 38 N. Y. 440; Wilds vs. Hudson River R. R. Co., 29 N. Y. 315; 24 Ib. 430; Gorton vs. Erie R. R. Co., 45 N. Y. 660; Morris & Essex R. R. Co. vs. Haslan, 4 Vroom (N. J.) 149; Runyan vs. Central R. R. Co., 1 Dutch. (N. J.) 558; Chicago & Alton R. R. Co. vs. Fears, 53 Ill. 115; Lafayette & Ind. R. R. Co. vs. Huffman, 28 Ind. 287; Pittsburg & Ft. Wayne R. R. Co. vs. Vining, 27 Ind. 513; Toledo & Wabash R. R. Co. vs. Goddard, 25 Ind. 185; Steves vs. Oswego & Syracuse R. R. Co., 18 N. Y. 422; Sheffield vs. Rochester & S. R. R. Co., 21 Barb. 399; Brooks vs. Buffalo & N. F. R. R. Co., 25 Ib. 600; Chicago, R. I. & P. R. R. Co. vs. Still, 19 Ill. 499; C. C. & C. R. R. Co. vs. Terry, 8 Ohio St. 570; Evansville & C. R. R. Co. vs. Hiatt, 17 Ind. 102; Illinois Central R. R. Co. vs. Buckner, 28 Ill. 303; North Penn. R. R. Co. vs. Heilmann, 49 Penn. St. 60; Harlem R. R. Co. vs. Coyle, 5 P. F. Smith, 396; Chicago & A. R. R. Co. vs. Gretzner, 46 Ill. 74; Shearm. & Redf. Negl. §§ 25, 488; Finlayson vs. C., B. & Q. R. R. Co., 1 Dill., C. C. Rep. 579; R. R. Co. vs. Skinner, 19 Penn. St. Rep. 298; Phila. & Reading R. R. Co. vs. Hummell, 44 Penn. St. 375; R. R. Co. vs. Norton, 24 Penn. St. 465; Ft. W. & C. R. R. Co. vs. Evans, 53 Penn. St. 250; Fleytas vs. Pontchartrain R. R. Co., 18 La. 339; Jeffersonville, Madison, etc., R. R. Co. vs. Goldsmith, 47 Ind. 43; Maynard vs. Boston & M. R. R. Co., 115 Mass. 458; Munger vs. Tonawanda R. R. Co., 4 Comst. [N. Y.] 357; Vandergrift vs. Rediker, 2 Zab. 185; Cin., D. & H. R. R. Co. vs. Waterson, 2 Ohio St. 424; Tower vs. Worc. R. R. Co., 2 R. I. 404; Louisville R. R. Co. vs. Ballard, 2 Metc. (Ky.) 177; Gillis vs. Penn. R. R. Co., 59 Penn. St. 122; Ilott vs. Wilkes, 3 B. & Ald. 304; Hounsell vs. Smith, 7 C. B. (N. S.) 731; Binks vs. South Yorkshire R. R. Co., 3 B. & S. 244; Phila. & Read. R. R. Co. vs. Spearen, 47 Penn. St. 300.

Tichenor & Warner, for Respondent, cited: Allen vs. Willard, 57 Penn. St. 374-380; Greenleaf vs. Ill. Cent. R. R. 29 Iowa, 48; Wagn. Stat. 310, § 43; Owens vs. Hann. & St. Joe. R. R., 58 Mo. 386; Stoneman vs. A. & P. R. R. Ib. 503; Tabor vs. Mo. Valley R. R., 46 Mo. 353; Girard Passenger Rly. Co. vs. Middleton, Law & Eq. Rep. [1877] 504; Clayards vs. Dethick, 64 Eng. C. L. 437; Thompson vs. North Mo. R. R., 51 Mo. 190; Lloyd vs. Hann. & St. Joe. R. R. 53 Mo. 509; Brown vs. Hann. & St. Joe. R. R., 50 Mo. 466; Smith vs. Union R. R. Co., 61 Mo. 588; Radley vs. The Directors of the London & N. W. Rly., Law & Eq. Rep. [1877] 467; Baltimore & Ohio R. R. Co. vs. Mulligan [Md., 1877], Ib. p. 433; Huelsenkamp vs. Citizens' R. R. 37 Mo. 537; Tabor vs. Mo. Valley R. R. Co., 46 Mo. 356; Brown vs. Hann. & St. Joe. R. R., 50 Mo. 466; Whalen vs. St. L., K. C. & N. R. R. Co., 60 Mo. 323; Isabel vs. Hann. & St. Joe. R. R. Co., 60 Mo. 475; Ernst vs. Hudson River R. R. Co., 35 N. Y. 26; Kennayde vs. Pacific R. R. Co., 45 Mo. 262; Burham vs. St. L. & I. M. R. R. Co., 56 Mo. 338; Brown vs. N. Y. C. R. R., 32 N. Y. 601.

HENRY, Judge, delivered the opinion of the court.

This was an action by plaintiff to recover damages for injuries received by him under the following circumstances:

On the first day of February, 1872, plaintiff, who lived about two miles east of Kansas City, and one Cecil were in Cecil's wagon returning home from Kansas City. From Kansas City defendant's road runs in an easterly direction, and there is also a public road from Kansas City, running in the same direction, and for four or five hundred feet west of a public crossing of defendant's road by said public road, the two run parallel and not exceeding twenty-five feet apart.

The Novelty mills are about three hundred and sixty yards west of this crossing, and between said mills and a brick house standing about twenty-five feet from the railroad, and two hundred and seventy yards west of the crossing, plaintiff says he looked back and saw no train approaching, but that he did not again look back until the accident occurred.

From the crossing, west, at any point on the public road within fifty or sixty yards, one can see the whole track west for a distance of a half a mile. Plaintiff testified: “If I had looked back at any time, along that fifty or sixty yards, I could have seen the train in time to have prevented the accident. I did not look for the train or listen for it. I did not think of it.” Nor did Cecil, who was driving the team, look or listen for a train, but drove upon the crossing, when the wagon was struck by the locomotive, and plaintiff was thrown from the wagon and seriously injured.

At this crossing, across the dirt road, in plain view, was a wide board upon which, in large letters was printed, “Railroad Crossing! look out for the cars!” There was evidence on the part of plaintiff, tending to prove, that the bell was not rung, nor the whistle blown, on the train as it approached the crossing. The conductor and brakeman testified to the contrary, but we shall assume that the preponderance of the evidence was on the side of the plaintiff on that issue.

The accident occurred a few minutes after five o'clock P. M.--as soon after five o'clock as the train, moving fifteen or twenty miles an hour, could make a distance of between one and two miles. The exact distance from Kansas City to the crossing does not appear, but as plaintiff lived two miles east of the city, and the accident occurred before he reached home, it must have been less than two miles.

Plaintiff in his testimony stated that he knew that the train was to leave the city, going east, at five o'clock that afternoon; that he knew it was about five o'clock when he and Cecil were on the road going home, and that he had lived in that neighborhood since 1860, and near the defendant's road.

There was snow on the ground five or six inches deep, and to some extent it deadened the sound of a moving train.

At the close of plaintiff's testimony the defendant asked the court to instruct the jury, that upon the pleading and evidence the plaintiff could not recover, which the court refused. It is unnecessary to notice the others.

The jury found a verdict for plaintiff for $650.00, and a motion for a new trial having been overruled, and a judgment for plaintiff rendered in pursuance of the verdict, defendant has brought the cause to this court by appeal. The failure of the employees of defendant to comply with the requirements of the statute, in regard to ringing the bell and blowing the whistle on approaching public crossings, was negligence, and, if plaintiff was injured in consequence of the neglect of that duty, he is entitled to recover, unless plaintiff's own negligence contributed directly to produce the result.

In the case at bar plaintiff's own testimony made out a case of negligence on his part, and we are asked to determine whether it was not such negligence as precluded plaintiff from recovering, and whether the court should not have given the instruction asked for by defendant, at the close of plaintiff's evidence. Ordinarily the question of negligence should be submitted to a jury, under proper instructions, but when there is no conflict of evidence, in regard to the facts relied upon as constituting negligence, it is the duty of the court to determine whether those facts do, or do not, constitute negligence; and we think that it is equally the duty of the court, where the facts are undisputed, to determine whether those facts of themselves constituted direct contributory negligence. (Maher vs. The Atlantic & Pac. R. R. Co., 64 Mo. 267.)

Wharton in his work on the Law of Negligence (§ 384), says: “When a person knowingly about to cross a railroad track may have an unobstructed view of the railroad, so as to know of the approach of a train in sufficient time to clearly avoid the injury from it, he cannot, as a matter of law, recover, although the railroad company may have been also negligent, or neglected to perform a statutory requirement.”

Shearman & Redfield on Negligence, (§§ 488, 488 a,) are yet more clear and emphatic: “It is universally deemed culpable negligence for any one to cross the track of a railroad, operated by steam power, in full view or hearing of an approaching train, or without taking any precautions (if any are reasonably within his power) to ascertain whether a train is approaching; and as a general, but not invariable rule, it is such negligence to cross without looking in every direction that the rails run, to make sure that the road is clear.” “The statutes giving a right of action to persons injured by the neglect of a railroad company to ring a bell at a highway crossing, do not confer such right of...