80 S.W. 270 (Mo.App. 1904), Elliott v. Chicago & Alton Ry. Co.

Citation:80 S.W. 270, 105 Mo.App. 523
Opinion Judge:BLAND, P. J.
Party Name:ELLIOTT, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant
Attorney:Scarritt, Griffith & Jones for appellant. P. H. Cullen and R. D. Rogers for respondent.
Judge Panel:BLAND, P. J. Reyburn and Goode, JJ., concur.
Case Date:March 29, 1904
Court:Court of Appeals of Missouri

Page 270

80 S.W. 270 (Mo.App. 1904)

105 Mo.App. 523

ELLIOTT, Respondent,



Court of Appeals of Missouri, St. Louis

March 29, 1904

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....

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