Henze v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 30 April 1880
• Citation: 71 Mo. 636
• Parties: HENZE v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

71 Mo. 636

HENZE

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Audrain Circuit Court.--HON. G. PORTER, Judge.

REVERSED.

Wells H. Blodgett, Jno. F. Williams and Charles A. Winslow for appellant.

J. L. Smith, L. C. Krauthoff, Rudolph Hirzel, H. W. Johnson and Forrist, for respondent.

HENRY, J.

Returning from Jonesborough in a two horse wagon, Fred Henze and his son, about six years of age, in passing over defendant's railroad at a public crossing in Montgomery county, known as Holland's crossing, were struck and killed by the engine of a passenger train running west. Plaintiff, the widow of Henze and mother of the lad, sued defendant for $10,000, alleging that the death of her husband and son was occasioned by the negligence of the defendant's employees in running and managing the train. She obtained a judgment for $10,000, from which the defendant has appealed.

There was a conflict in the evidence for plaintiff, as to whether the deceased could have seen an approaching train after he turned south from the Boonslick road, until he got upon the track, a distance of 100 yards. Some of plaintiff's witnesses testified that, if he had looked, he could, and others that he could not have seen a train approaching from the east; but that he could have heard the train if he had stopped and listened was proven by John Thompson, Albert Kilgore, Anthony Horton, Rhoda Brooks, James Ferguson, Thomas Kimbal and Mrs. Drew, witnesses for plaintiff. Katie Wood, Douglas Kilgore, Thomas Patton and G. W. Lehne testified that they did not hear it. Thomas Patton was laying a floor in a corn crib, on the side of the road running south to the railroad track, working with an axe, and the noise he made at his work would probably have prevented him from hearing the noise made by the train. G. W. Lehne was 150 yards north of the crossing, traveling in a wagon, and the noise made by his wagon may have prevented him from hearing that made by the train. Douglas Kilgore was 130 yards south of the crossing, and Katie Wood was crossing the railroad track at a point west of the Holland crossing, and did not hear the train approaching until it came very near her.

The positive testimony of the witnesses who heard the train is not contradicted by that of those who did not hear it, and establishes the fact that Henze could have heard the train if he had stopped and listened. Whether one does or does not hear so that he can testify to a given sound depends upon the degree of attention he may give to its source. The familiar example of several persons being in a room where there is a clock, one or more of whom state that they heard it strike, while the others testify that they did not hear it, is an apt illustration of the difference between mere negative and contradictory evidence. If the witnesses are equally credible, although the number of those who say they did not hear it exceeds that of those who say they did, yet the testimony of the latter is to be regarded as establishing the fact, because it is consistent with, and not contradictory of, the negative evidence. If the others had testified also that, for some particular reason, their attention was called to the clock when it should have struck, and that they did not hear it, a conflict of evidence would be presented. The witnesses here simply stated that they did not hear the train, and their testimony does not contradict that of the other witnesses, or the inference to be drawn from it, that, if Henze had stopped to listen, he could have heard it. Besides, all of the witnesses who said they did not hear the train, except Katie Wood, stated additional facts which explain why they did not hear it. The witnesses who heard the train testified as follows: Albert Kilgore, that he was south of the Holland railroad crossing 100 or 150 yards. John Thompson, that he was thirty-five or forty yards south of the crossing and heard the train coming one-fourth of a mile. Anthony Horton, that he was 100 yards west of the crossing and thirty or forty south of the road, and heard the train, and that it “made plenty of noise.” Rhoda Brooks was thirty yards west of the crossing, and heard it “rattle a good way off.” James Ferguson, who was north of the road distinctly heard it seventy-five yards distant from him.

The plaintiff's evidence shows that Henze, the husband, “was sitting straight in the wagon, facing the railroad, holding the lines loosely in his hands and driving in a slow walk, not seeming to take particular notice of anything, and appearing like one driving two horses where there was no danger;” and the same witness stated that ‘the rattling of Henze's wagon interfered with the sound of the train.” Henze stopped neither to look nor listen, but drove on to the track without taking any precaution whatever to guard against danger. The evidence for plaintiff showed that neither a bell was rung nor whistle blown on the train. A demurrer to the evidence was overruled.

1. RAILROAD: DUTY OF TRAVELER APPROACHING: contributory negligence.

We see nothing in this case to distinguish it from Fletcher v. Atlantic & Pacific R. R. Co., 64 Mo. 484, and Harlan v. St. L., K. C. & N. Ry. Co., 65 Mo. 22. The only difference in the facts betwixt this and the Fletcher Case is that, in the latter, it was clearly established that, for some distance before he drove upon the railroad track, Fletcher, by looking, could have seen the approaching train, but the same principle is applicable here, if it be the law, as this court has held, that “a traveler approaching a railroad track is bound to use his eyes and ears, so far as there is an opportunity, and when, by the use of these senses, danger may be avoided, notwithstanding the neglect of the railroad servants to give the signals, the omission of the plaintiff to use his senses to avoid the danger is concurring negligence entitling defendant to a nonsuit.” Fletcher v. A. & P. R. R. Co., supra. If Henze had used the precaution which common prudence dictates, it is not likely that the calamity would have occurred. If he had stopped to look and listen when near the track, and could neither see nor hear the approaching train, on account of the cut or other obstructions, and no signal was given from the train, he would have been justifiable in attempting to cross, and no negligence would have been imputable to him. But he had no right to drive along over a dry, hard road in a two horse wagon, the noise of which might prevent him from hearing an approaching train, and, without stopping an instant to see or hear, go upon the railroad track, except at his own peril

This and the case of The Pa. R. R. Co. v. Beale, 73 Pa. St. 504, are as nearly alike in their facts as any two cases to be found in the books, and the supreme court of Pennsylvania there held that, “if the traveler cannot see the track by looking out, whether from fog or other cause, he should get out, and, if necessary, lead his horse and wagon.” We are not called upon, in this case, to assert so stringent a rule against the traveler as that, but the views we have expressed are fully sustained by Benton v. The Central R. R. of Iowa, 42 Iowa, 193, and Lake Shore & Michigan Southern R. R. Co. v. Miller, 25 Mich. 274, two cases similar to this; also by Butterfield v. Western R. R. Corporation, 10 Allen, 532. In Illinois, where the doctrine of comparative negligence is recognized, in the case of St. L., A. & T. H. R. R. Co. v. Manly, 58 Ill. 306, a case analagous to this in its facts, the court observed: “That the fearful result of the sad accident must be attributed most largely to his (deceased's) own want of proper care.” In R. R. Co. v. Houston, 95 U. S. 702, the court observed, Field, J.: “The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's...