Elliott v. Chicago & Alton Ry. Co.
| Decision Date | 29 March 1904 |
| Citation | 80 S.W. 270,105 Mo.App. 523 |
| Parties | ELLIOTT, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. E. M. Hughes, Judge.
Judgment affirmed.
Scarritt Griffith & Jones for appellant.
(1) Whether or not plaintiff's conduct, as shown by his admissions, the testimony of his own witnesses and the undisputed physical facts, was negligence is a question of law for the court. Turner v. Railroad, 74 Mo. 607; Davies v. Railroad, 159 Mo. 7; Henze v Railroad, 71 Mo. 640; Buesching v. Gaslight Co., 73 Mo. 229. (2) Plaintiff proved conclusively that if he had stopped and listened he could have heard the engine approaching. Hook v. Railroad, 162 Mo. 569. (3) It is held that one has not "looked" so as to free himself from the charge of contributory negligence, who drives upon a railroad crossing where the view is at the time obscured by a cloud of dust, or smoke from a train just passed, or from a nearby factory. He should wait until his sense of sight could be effectively used. Benyon v Railroad, 168 Pa. 642, 32 A. 84; McNamara v. Railroad, 64 Hun (N. Y.) 637; Foran v. Railroad, 147 N.Y. 718, 42 N.E. 722; Flemming v. Railroad, 49 Cal. 253. (4) The authorities are overwhelming to the effect that, under the circumstances, defendant's demurrer to the evidence should have been sustained. Stepp v. Railroad, 85 Mo. 235; Weller v. Railroad, 120 Mo. 649; Moberly v. Railroad, 17 Mo.App. 543; Damrill v. Railroad, 27 Mo.App. 205; Powell v. Railroad, 109 N.Y. 613, 15 N.E. 891; Schmolze v. Railroad, 83 Wis. 659, 53 N.W. 743; Ashworth v. Railroad, 97 Ga. 306, 23 S.E. 86; Railroad v. Crisman, 19 Col. 30, 34 P. 286; Chase v. Railroad, 78 Me. 346, 5 A. 771; Brady v. Railroad, 81 Mich. 616, 45 N.W. 1110; Jensen v. Railroad, 102 Mich. 176, 60 N.W. 57; Clark v. Railroad, 47 Minn. 380, 50 N.W. 365; Merkle v. Railroad, 49 N. J. Law 473, 9 A. 680; Seefeld v. Railroad, 70 Wis. 216, 35 N.W. 278; Pepper v. So. Pac. Co., 105 Cal. 389, 38 P. 974; Salter v. Railroad, 75 N.Y. 273; Hager v. Railroad, 98 Cal. 309, 33 P. 119. (5) Plaintiff's contention that he had a right to rely upon defendant's ringing the bell or blowing the whistle is not well taken. It is only where a person is doing his full duty that he can safely rely on another's doing his duty. Clark v. Railroad, 127 Mo. 197. (6) The opinion heretofore rendered in this cause is in conflict with numerous decisions of our Supreme Court.
P. H. Cullen and R. D. Rogers for respondent.
(1) The only point defendant insists upon in his brief is that plaintiff was guilty of contributory negligence as a matter of law, and hence all other points are waived. Kansas City v. Walsh, 88 Mo.App. 276; In re Estate Cogswell, 93 Mo.App. 491; Corrigan v. Kansas City, 93 App. 173. (2) One approaching a railroad crossing has a right to presume that the railroad will obey the law in notifying him of the approach of its train by ringing its bell or sounding whistle when within 80 rods of the crossing. Labor v. Railroad, 46 Mo. 353; Crumpley v. Railroad, 111 Mo. 152; Kenney v. Railroad, 105 Mo. 286; O'Connor v. Railroad, 94 Mo. 150; Petty v. Railroad, 88 Mo. 306; Weller v. Railroad, 164 Mo. 180. (3) A traveler is not guilty of contributory negligence as a matter of law because he fails to stop in approaching a crossing where his view is obstructed, nor is the traveler required to leave his horse and go in advance to the track and look up and down for approaching trains, and his failure to get out and make advance observations is no evidence of negligence. Huckshold v. Railroad, 90 Mo. 548; Kelly v. Railroad, 88 Mo. 534; Alexander v. Railroad, 112 N.C. 720; Hook v. Railroad, 162 Mo. 602. The general rule requires a traveler to look where he can see, listen where he can not see and to stop only when the circumstances are such that he can not listen without stopping. And whether he ought to stop is a question for the jury depending upon the circumstances of each particular case. Russell v. Receivers, 70 Mo.App. 95; Mayes v. Railroad, 71 Mo.App. 142. (4) A traveler will not be chargeable with contributory negligence for failing to stop and listen if the approaching train could not have been seen had he stopped, nor heard, because it made so little noise, had he listened. Baker v. Railroad, 122 Mo. 544; Donohue v. Railway, 91 Mo. 363; Dahlstrom v. Railway, 108 Mo. 525; Hinze v. Railroad, 71 Mo. 636; Masterson v. Railway, 58 Mo.App. 574; Huckshold v. Railway, 90 Mo. 556; Johnson v. Railroad, 77 Mo. 546; Winstantz v. Railroad, 72 Wis. 375; S. C., 39 N.W. 856; Davis v. Railway, 47 N.Y. 400; McGuire v. Railway, 2 Daly (N. Y.) 76; Hinkle v. Railway, 109 N.C. 472; S. C., 26 Am. St. 581; Railroad v. Lee, 87 Ill. 454.
Main street in the town of Farber, Audrain county, Missouri, runs north and south. The tracks of the defendant railroad company run east and west through said town and cross Main street at right angles. South of the track at the crossing of Main street, and eight and one-half feet from the main track, is a side track. A sixteen foot crossing constructed of planks was laid over these tracks to form a crossing on Main street. On the morning of November 11, 1902, plaintiff, a farmer living north of Farber, brought a two-horse wagon load of corn into town, drove along Main street, crossed over the tracks and unloaded his corn in a crib a short distance south of the tracks. He then started back to his home, driving north on Main street; when he reached the crossing, an engine and tender backing west on the main track collided with his team, killed his two horses, smashed his wagon, and threw him to the ground, doing him some injury, not, however, of a permanent character. The suit was to recover the damages caused by the collision. The negligence of the defendant, upon which plaintiff predicated his right to recover, was that defendant negligently ran its engine at a rapid rate of speed over the crossing, failed to keep a lookout for persons on the crossing, and failed to sound the locomotive whistle as it approached the crossing, or to ring the bell and keep the same ringing until the crossing was passed, and negligently failed to give any signal or warning whatever of the approach of the engine.
The answer was a general denial and a plea of contributory negligence.
The trial resulted in a verdict and judgment in plaintiff's favor for fifteen hundred dollars. Defendant appealed.
At the close of plaintiff's evidence and again at the close of all the evidence, defendant asked peremptory instructions to be given to the jury to find for it. The court refused to give these instructions. The ruling of the court on these instructions is the only error relied upon by defendant for a reversal of the judgment.
The contention is that plaintiff's own admissions as a witness, as well as the whole evidence, show that plaintiff, as a matter of law, was guilty of negligence that directly contributed to his injury and for this reason he can not recover. It is conceded that plaintiff's view to the east, as well as to the west, as he approached the crossing on Main street was obstructed by cars standing on the side track and by an elevator standing east of him near the track, and that he could not have seen the engine for at least a half a mile by looking toward the east, without first placing himself north of the side track, on account of these obstructions. It is also shown that cars standing on the side track were so near the crossing on Main street that a space of not more than twelve or fourteen feet was open at the crossing for the passage of teams. The plaintiff's own evidence shows that, without stopping, he drove upon the crossing, that when he cleared the side track, and when his horses were on the main track, he could then look east down the track and did look and saw the engine was upon him. He testified that before driving upon the track he listened for a train but heard none; that he heard no whistle blowing or bell sounding; that when he drove into town he saw an engine at the depot (west of the crossing) and while he was unloading his load of corn at the crib he heard a train going by and thought the train had pulled out and gone on east. He further testified that by stopping his team before going on the crossing, and getting out and walking past the side track he could have seen down the track to the east for a mile or more. It is shown that the grade of the track to the west was slightly descending and that the engine, at the time of the collision, was running without exhausting steam and was making scarcely any noise. There was a corn sheller in operation near by, on the south side of the track, that was making considerable noise. For the plaintiff, a number of witnesses in a position to hear, testified that they did not hear the engine whistle and that the bell was not rung until after the engine struck plaintiff's wagon, and that the speed of the engine was from twenty to thirty miles per hour. For defendant the evidence is that the whistle was blown three times, eighty rods west of the crossing; that the bell had an automatic ringer and that it was put in operation and the bell sounded continuously until the crossing was passed, and that the engine was moving at a speed of from fifteen to twenty miles per hour.
It is conceded that when the wagon came into view of the engineer the engine was so close to the wagon that it was impossible to stop it in time to avoid the collision. The evidence on the part of plaintiff tends to show that defendant's engineer was guilty of negligence in failing to sound the whistle or ring the bell of the engine in the manner required...
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