64 S.W. 141 (Mo. 1901), Weller v. Chicago, Milwaukee & St. Paul Railroad Co.

Citation:64 S.W. 141, 164 Mo. 180
Opinion Judge:BURGESS, C. J.
Attorney:Frank Hagerman for appellant. Gage, Ladd & Small for respondent.
Judge Panel:BURGESS, C. J. Brace, Valliant and Gantt, JJ., concur; Sherwood, Robinson and Marshall, JJ., dissent.
Case Date:June 29, 1901
Court:Supreme Court of Missouri

Page 141

64 S.W. 141 (Mo. 1901)

164 Mo. 180




Supreme Court of Missouri

June 29, 1901

Appeal from Jackson Circuit Court. -- Hon. E. P. Gates, Judge.


Frank Hagerman for appellant.

(1) The demurrer to evidence should have been sustained, and defendant's instruction 1 should have been given, because the deceased was guilty of contributory negligence. (a) It was the duty of deceased to look and listen, and if there were any difficulties in the way of seeing or hearing he should have stopped, and if, by complying with such duty, he could have discovered the approach of the train, then he was guilty of negligence contributing to his injury. Beach, Cont. Neg. (2 Ed.), sec. 180; Harlan v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Zimmerman v. Railroad, 71 Mo. 476; Henze v. Railroad, 71 Mo. 636; Purl v. Railroad, 72 Mo. 168; Turner v. Railroad, 74 Mo. 602; Kelley v. Railroad, 75 Mo. 138; Lenix v. Railroad, 76 Mo. 84; Hixson v. Railroad, 80 Mo. 340; Johnson v. Railroad, 77 Mo. 546; Stepp v. Railroad, 85 Mo. 229; Kelly v. Railroad, 88 Mo. 534; Butts v. Railroad, 98 Mo. 272; Hanlon v. Railroad, 104 Mo. 381; Dlauhi v. Railroad, 105 Mo. 645; Boyd v. Railroad, 105 Mo. 371. Such is the rule declared upon the former appeal and by recent decisions. 120 Mo. 635; Kelsay v. Railroad, 129 Mo. 362; Lane v. Railroad, 132 Mo. 4; Payne v. Railroad, 136 Mo. 562; Culbertson v. Railroad, 140 Mo. 35. (b) The noise of Weller's wagon, and any of the difficulties in the way of seeing, if existing as claimed, made it his imperative duty to stop; at least to slacken the speed of his horse. Henze v. Railroad, 71 Mo. 640; Turner v. Railroad, 74 Mo. 607; Hixson v. Railroad, 80 Mo. 341; Stepp v. Railroad, 85 Mo. 236; Kelly v. Railroad, 88 Mo. 548; Chase v. Railroad, 78 Me. 346; Fleming v. Railroad, 49 Cal. 253; Merkle v. Railroad, 49 N. J. L. 473, s. c., 9 A. 680; Seefeld v. Railroad, 70 Wis. 216; Mynning v. Railroad, 64 Mich. 93; Mantel v. Railroad, 33 Minn. 62; Haines v. Railroad, 41 Ia. 231; Benton v. Railroad, 42 Ia. 193; Mahlen v. Railroad, 49 Mich. 585; Railroad v. Holmes, 3 Wash. 202; McCrory v. Railroad, 31 F. 531; Tucker v. Duncan, 9 F. 867; McCall v. Railroad, 54 N.Y. 642; Haas v. Railroad, 47 Mich. 401; Schaefert v. Railroad, 62 Ia. 624. (c) The facts being disclosed by the testimony of eyewitnesses, there is no room for indulging in conjecture or calling to our aid any presumptions. Lynch v. Railroad, 112 Mo. 420; Mynning v. Railroad, 64 Mich. 93; Railroad v. Stebbing, 62 Md. 518; Dewald v. Railroad, 44 Kan. 591; Galpin v. Page, 18 Wall. 364; Railroad v. Holmes, 3 Wash. 202. (d) The present doctrine is, that if obstacles are in the way, looking and listening are to be done when the obstacles are passed. Kelsay v. Railroad, 129 Mo. 362; Lien v. Railroad, 79 Mo.App. 475. (e) The undisputed facts in this case supplement and make plain the omission on the former trial, i. e., the case was before (120 Mo. 635) held one for the jury because there was nothing to show that Weller was careless after passing the two houses on Fifteenth and Askew avenue and before coming in view of Collins. On this trial two eyewitnesses, Reach and Montelius, testified, and their statements, without conflict, showed that he did the same there as he did after he came within Collins's view. These undisputed statements, though coming from defendant's witnesses, are to be taken as true here. Lane v. Railroad, 132 Mo. 4; Hite v. Railroad, 130 Mo. 132. (2) There was error in giving plaintiff's instruction numbered one. This instruction was erroneous. (a) It was contrary to Sanders v. Railroad, 147 Mo. 411; Chouquette v. Railroad, 152 Mo. 257; Holwerson v. Railroad, 57 S.W. 779. (b) It was not based upon the evidence. (3) There was error in giving plaintiff's instruction numbered two. This instruction was too long, involved and complicated for the jury to understand (1 Thompson, Charging the Jury, secs. 67, 68) and it was not justified by the evidence. (4) There was error in permitting Collins to testify as to the dazzling effect of the headlight on the cable train. These questions, so asked the witness, called for what was peculiarly for the jury and for matters that the latter were as capable of knowing as the witness was. Gavisk v. Railroad, 49 Mo. 277; Eubank v. Edina, 88 Mo. 655; Gutridge v. Railroad, 94 Mo. 472. (5) The motion for a new trial was erroneously overruled as the verdict was rendered through passion and prejudice. The evidence as to contributory negligence was conclusive. There was no sufficient evidence of the violation of the light ordinance, nor of any issue as to the adequacy of the bell, and, within the rule of Powell v. Railroad, 76 Mo. 84, and Empey v. Railroad, 45 Mo.App. 426, a new trial should have been granted.

Gage, Ladd & Small for respondent.

(1) The court below properly refused to direct a verdict for the defendant. The presumption was that Weller, in the exercise of proper care, looked and listened as he approached the crossing. Weller v. Railroad, 120 Mo. 650; Petty v. Railroad, 88 Mo. 320; Crumpley v. Railroad, 111 Mo. 158; Schlereth v. Railroad, 115 Mo. 100; Meadows v. Insurance Co., 129 Mo. 93; Bluedorn v. Railroad, 108 Mo. 448; Parsons v. Railroad, 94 Mo. 293. As the jury are the judges of the weight of evidence and the credibility of witnesses, they had a right to say of the testimony of any given witness, "it fails to convince us;" "it fails to satisfy our minds;" "we do not believe it." This is the doctrine of this court. Gannon v. Gas Co., 145 Mo. 502; Seehorn v. Bank, 148 Mo. 265; Gregory v. Chambers, 78 Mo. 294; Wolff v. Campbell, 110 Mo. 114; Mineral Land Co. v. Ross, 135 Mo. 107; Schroeder v. Railroad, 108 Mo. 322; Davies v. Railroad, 159 Mo. 1. When contributory negligence conclusively appears from the testimony offered by the plaintiff, the court may so declare as matter of law. But when the evidence from which contributory negligence must be found is offered by the defendant on whom the burden of establishing it rests the question is always one for the jury. There are many facts and circumstances in the case from which the jury had a right to infer that the deceased was without fault in failing to see or hear the train in time to avoid the collision, although he may have looked and listened for it with all the care required by law. Railroad v. Miller, 99 F. 529; Keim v. Railroad, 90 Mo. 314; Huckshold v. Railroad, 90 Mo. 548; Huntress v. Railroad, 66 N.H. 185, 34 A. 154; Davis v. Railroad, 68 N.H. 247, 44 A. 388; Kellny v. Railroad, 101 Mo. 67; Petty v. Railroad, 88 Mo. 318; Kennayde v. Railroad, 45 Mo. 255; Muscarro v. Railroad, 192 Pa. St. 8, 43 A. 527; Railroad v. Pearson, 184 Ill. 386, 56 N.E. 633; King v. Railroad, 79 N.W. 611; Railroad v. Harrington, 131 Ind. 426, 30 N.E. 37; Piper v. Railroad, (Wis.) 46 N.W. 165; Jennings v. Railroad, 112 Mo. 268. (2) The violation of the city ordinance as to the rate of speed, ringing of the bell, and light on the train, was negligence per se. This has been the settled law of Missouri for many years. Nothing can be added to the opinion of this court on this subject, per Burgess, J., in Jackson v. Railroad, 58 S.W. 32; also Hutchinson v. Railroad, 61 S.W. 635. And besides, the case was tried below on the theory that the violation of both the ordinance relied on by the plaintiff, and the ordinance relied on by the defendant, was negligence per se, the court, at the instance of the defendant, instructing the jury that "any violation of a city ordinance is negligence." Defendant's instruction 8. Defendant is therefore estopped to complain of the action of the court below, even had it been erroneous. "A party is not at liberty to complain of an instruction on the part of his adversary where his own exhibits the same fault." Christian v. Ins. Co., 143 Mo. 467; Thorpe v. Railroad, 89 Mo. 666.

BURGESS, C. J. Brace, Valliant and Gantt, JJ., concur; Sherwood, Robinson and Marshall, JJ., dissent.


Page 142

[164 Mo. 186] In Banc


This is an action by plaintiff, who is the widow of William P. Weller, deceased, to recover damages on account of the death of her said husband, caused, as is alleged, by the negligence of defendant.

The accident occurred after sunset on the evening of the twelfth of December, 1887, at a point in Kansas City, Missouri, where the Kansas City Belt Railroad (over which defendant's road is operated) crosses Fifteenth street in that city.

There have been two trials in this case, each resulting in a verdict for plaintiff for $ 5,000. An appeal from the first judgment to this court was prosecuted by the defendant. The judgment was reversed, and the cause remanded for another trial, the case being reported in 120 Mo. 635, 23 S.W. 1061. The case was again tried at the April term, 1897, of the circuit court of Jackson county, resulting in a judgment for plaintiff for $ 5,000, from which defendant appeals.

The negligent acts upon which the case is grounded are, the violation of section five of chapter thirty-seven of the revised ordinances of the city limiting the rate of speed of railroad trains to six miles per hour; the violation of section two of the same chapter, requiring to be placed upon every moving train after sunset, "one large lamp, headlight or lantern, conspicuously placed in front of the train facing the direction in which the same may be moving," and in failing to ring the bell eighty rods from the crossing or keep it ringing until the train passed the crossing.

The defenses were a general denial, and a plea of contributory [164 Mo. 187] negligence on the part of deceased.

Fifteenth street was one of the principal thoroughfares of Kansas City, and runs east...

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