Kelley v. Hannibal & St. Joseph R.R. Co.

Citation75 Mo. 138
PartiesKELLEY v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
Decision Date31 October 1881
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Chas. A. Winslow for appellant.

Belch & Silver and Tichenor & Warner for respondent.

HENRY, J.

This action was commenced in the special law and equity court of Jackson county, and removed by change of venue to the circuit court of said county. The plaintiff claimed, and recovered damages for an injury sustained by him in being run against by a locomotive of defendant, at a point where defendant's stock-yard track, in Tenth street, crosses Mulberry street, in Kansas City. From the judgment he obtained, defendant has appealed.

From the evidence for plaintiff, it appears that he was struck in the square formed by a street-car track which crosses the Hannibal track, in question; that he stepped upon the track without looking or listening for an approaching train. There were four railroad tracks in Tenth street, occupying most of the street, of which the defendant's stock-yard track was the southern. The plaintiff was crossing Tenth street from the south, and had passed over defendant's track. A train was coming in on the Kansas Pacific track, from the west, but the locomotive which ran against plaintiff, coming in the same direction passed it and reached the Mulberry street crossing where the accident occurred, first. The whistle on this locomotive was not blown, nor the bell rung, and the speed at which it approached the crossing was about ten or twelve miles an hour. Plaintiff's granddaughter testified for him that she witnessed the tragedy, and that she saw him get upon the track; that she “first noticed him near Mulberry street; he had crossed the block, and was going along near Tenth street. Did not see him stop at all. The engine was very close to him when he stepped up, and by the time he got there, (indicating the center of the square formed by rails of a street-car track crossing the defendant's stockyard track in question,) the engine caught him. The engine was not far back when he stepped up; couldn't say how far, but it was quite near.” Another witness for plaintiff testified, that he witnessed the accident; that the servants of defendant on the locomotive were not in their proper places; that he saw nobody on the engine, but he signaled it with a bucket he held in his hand. He further says: “I saw him, and in a second he was struck.”

1. RAILROAD: negligence: contributory negligence.

That it is such negligence for one to attempt to cross, or get upon a railway track, at a public crossing, or elsewhere, without looking and listening for an approaching train, as precludes a recovery for an injury sustained by him from a passing train, or locomotive, whether the company's negligence also contributed directly to produce the injury or not, has so often been decided by this court, that it must now be regarded as the settled law of this State. Maher v. R. R. Co., 64 Mo. 267; Fletcher v. R. R. Co., 64 Mo. 484; Harlan v. R. R. Co., 65 Mo. 22; Harlan v. R. R. Co., 64 Mo. 480; Zimmerman v. R. R. Co., 71 Mo. 476; Moody v. R. R. Co., 68 Mo. 470; Bell v. R. R. Co., 72 Mo. 50; Purl v. R. R. Co., 72 Mo. 168; Adams v. R. R. Co., 74 Mo. 553. This qualification is, however, recognized, that if the negligence of the company which contributed directly to cause the injury, occurred after the party injured was, or by the exercise of proper care, might have been, discovered upon the track by defendant's servants in charge of the train, in time to stop it and avert the calamity, the railroad company is liable, however gross the negligence of the injured party may have been, in placing himself in his dangerous situation. Maher v. R. R. Co., supra; Harlan v. R. R. Co., 65 Mo. 22; Adams v. R. R. Co., supra.

That the plaintiff was guilty of such negligence as precludes his recovery, is manifest, unless defendant's negligence, after he was, or might have been, discovered on the track by the defendant's servants, in charge of the locomotive, was such as to render the company liable, without regard to his own negligence. From the evidence, it appears that he was instantly struck after he got upon the track. This is the testimony of his granddaughter. The other witness, who signaled the locomotive, says he saw the man, and that he was struck in a secuod after. He made the signal after he saw the plaintiff on the track, and, in a second after he saw the plaintiff the injury occurred. It is very evident that this witness did not speak of the interval which elapsed between the time he saw plaintiff on the track and the moment he was struck, from a time-piece, but it was a form of expression adopted by him to convey the idea, that there was but an exceedingly brief interval between the two events. This is a fair inference from his testimony, taken in connection with that of plaintiff's granddaughter. Plaintiff introduced no evidence to show within what time the engine could have been stopped. It is beyond controversy, that if plaintiff had looked, he would have seen the locomotive approaching. His own testimony proves his negligence, and also tends to prove that he stepped upon the track when the locomotive was so near him that no possible exertion which the servants of defendant in charge of the locomotive could have made, would have averted the calamity, even had they seen him on the track before he was struck by the locomotive. We have stated the substance of all the evidence introduced by plaintiff relating to the negligence of plaintiff and defendant's servants respectively, and adhering to the doctrine announced in the cases above cited, are of the opinion that the circuit court should have sustained defendant's demurrer to plaintiff's evidence.

This error would lead to a reversal of the judgment, if, on cross-examination of defendant's witnesses the testimony which plaintiff failed to introduce, had not been supplied. The engineer on the locomotive in question testified, that it could have been stopped in eight or ten feet. If running at twelve miles an hour, it would be at the rate of about sixteen feet per second. If the engineer and fireman had been at their places, and keeping such lookout as was their duty, in running through a populous city and approaching a public crossing, on one of its thoroughfares, the evidence tends to show that they would have seen the plaintiff, as he stepped upon the track, and could have stopped the...

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