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

• Decision Date: 31 October 1880
• Court: Missouri Supreme Court
• Parties: PURL v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

72 Mo. 168

PURL

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

Supreme Court of Missouri.

October Term, 1880.

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

REVERSED.

The following diagram shows the crossing and its surroundings

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

Wells H. Blodgett and Prosser Ray for appellant.

H. W. Johnson and E. M. Hughes for respondent.

SHERWOOD, C. J.

Action for damages for injury done plaintiff and his property while crossing defendant's railroad. In the view we take of this case, it is unnecessary to do more than to determine the point of the sufficiency of the plaintiff's evidence to authorize a recovery; in other words, whether, if the facts thereby established are taken as admitted, and they are to be so taken in consequence of the demurrer thereto, the plaintiff has made out a prima facie cause of action against the defendant. The evidence thus for examination establishes, as we think, and establishes very clearly, that plaintiff has shown no such cause of action. That evidence discloses the customary diversity of opinion as to whether the usual signals were given by the approaching train; some of plaintiff's witnesses testifying to having heard the whistle, and others that they did not. Whether the signals were given or not, we regard as unimportant in the circumstances of this case. The morning of the accident Purl started in his buggy from the north side of the railroad track to take a kettle to Camp's hotel, which was on the south side of and near that track, and distant from the crossing about 250 feet. Before crossing the track, and when near the lumber yard, and going toward the hotel, he saw smoke to the east, seemingly a good way off, which looked like the smoke of a train made by an engine in motion. He proceeded, passed over the crossing, then turned east, following the road which ran parallel with, in full view of and but a few feet from, the railroad track, until he reached the hotel, where delivering the kettle, he turned around immediately and drove west on the same road on his way home. When proceeding to Camp's hotel, he says that as he was facing east, that of course, if there had been a train in sight he would have seen it, but he does not state that he looked. Nor did he pay any further attention to the smoke, which he took to be that of a moving train, although the testimony shows that when in front of Camp's hotel he would have had an unobstructed view of the railroad track to the east of the hotel, for nearly one-fourth of a mile. Nor after starting west to recross the railroad track did he look back east, because he says he “thought the train, the smoke of which I saw when I went over, was going east, and if there was any danger at all, it would come from the west.” Nor when he reached the crossing where he was injured, did he look to the east, though an unobstructed view of the track in that direction could have been had for nearly half a mile, for the reason that he still clung to the assumption that danger was to be apprehended from the west, and not from the east. And the testimony also shows that at the very time he attempted to cross the track, the train was just passing the depot 250 feet east of the crossing, but he neither looked in that direction nor stopped; on the contrary, when he made the turn to make the crossing, one of his witnesses testifies that he was “looking back over his left shoulder;” going...