Porter v. Missouri Pacific Railway Co.

Citation97 S.W. 880,199 Mo. 82
PartiesLYDIA J. PORTER v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant. [*]
Decision Date20 November 1906
CourtUnited States State Supreme Court of Missouri

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Reversed.

Martin L. Clardy and W. W. Graves for appellant.

(1) The third ground of negligence which charges the frightening of the team is thoroughly eliminated from the case both by law and by the evidence. Seeing a person in danger it became the duty of the company to give him the usual and ordinary danger signals and these are all shown to have been given. Further the evidence fails to disclose the frightening of the team. (2) The evidence clearly shows that defendant's demurrer to the testimony offered both at the close of plaintiff's case and at the close of the entire case should have been given. There is no showing whatever in this record which would justify the conclusion that had the deceased before undertaking to attempt to cross said crossing, looked and listened, with any care whatever, he would not have seen or heard the train. (a) Persons entering railway crossings are bound to exercise ordinary care and prudence, and failing in this, if injured by the concurrent fault of themselves and the railway company, they cannot recover. Jones v Barnard, 63 Mo.App. 501. (b) A person who is about to cross a railway track must look and listen, when by listening he can hear and by looking he can see the approaching train and the omission to do either will bar recovery. Boyd v. Railroad, 105 Mo. 371; Fusili v. Railroad, 45 Mo.App. 535; Drake v. Railroad, 51 Mo.App. 562; Maxey v. Railroad, 113 Mo. 1; Sullivan v. Railroad, 117 Mo. 214; Fellenz v. Railroad, 106 Mo. 154. (3) The fireman testified that he saw the deceased after he left the wagon bridge and before he started to make the crossing. When the train crew saw him start from the county bridge to this crossing, they had the right to presume that the deceased would avoid the danger and were not negligent in not stopping the train until they saw he was in an actual perilous position. Schmidt v. Railroad, 90 S.W. 136; Guyer v. Railroad, 170 Mo. 350; Carrier v. Railroad, 175 Mo. 482; Sharp v. Railroad, 161 Mo. 235; Tanner v. Railroad, 161 Mo. 497; Hayden v. Railroad, 124 Mo. 573; Reno v. Railroad, 180 Mo. 469. (4) Even if there was a failure to give the signal required by law, yet if the person without looking and listening placed himself in a dangerous position, there was such contributory negligence as bars recovery. Maxey v. Railroad, 113 Mo. 1; Butts v. Railroad, 98 Mo. 272; Henze v. Railroad, 71 Mo. 636; Booker v. Railroad, 122 Mo. 533; McNamee v. Railroad, 135 Mo. 440; Green v. Railroad, 90 S.W. 805; Hook v. Railroad, 162 Mo. 569; Schmidt v. Railroad, 160 Mo. 43. (5) Even if the view is obstructed in his approach to the crossing, as is the fact in the case at bar, the traveler must continue to look and listen until the crossing is reached and the danger point passed. In this case the undisputed evidence is that had this man within thirty or forty feet or more of this crossing looked in the direction of this train he could have seen it and stopped, and there is no excuse on earth for his death save his contributory negligence. It stands without question that had he listened as the law requires he could have heard the train before trying to make the crossing. There are a number of cases covering the exact situation in this case beginning with Kelsey v. Railroad, 129 Mo. 362; Jones v. Barnard, 63 Mo.App. 501; Weller v. Railroad, 120 Mo. 635; Stevens v. Railroad, 67 Mo.App. 356; Lien v. Railroad, 79 Mo.App. 475; Weller v. Railroad, 164 Mo. 180; Fusili v. Railroad, 45 Mo.App. 535; Schmidt v. Railroad, 90 S.W. 136.

John M. Redmond and Wm. Aull for respondent.

(1) In the absence of any evidence on plaintiff's behalf as to acts of care on the part of decedent, he is presumed to have looked and listened and to have exercised ordinary care in attempting to go over the crossing to avoid possible collision with the defendant's train. Riska v Railroad, 180 Mo. 188; Weller v. Railroad, 164 Mo. 198; Petty v. Railroad, 88 Mo. 320; Schlereth v. Railroad, 115 Mo. 87; Crumpley v. Railroad, 111 Mo. 158; Buesching v. Gas Light Co., 73 Mo. 219; Meadows v. Ins. Co., 129 Mo. 76; Bludorn v. Railroad, 108 Mo. 439; Parsons v. Railroad, 94 Mo. 294; Eckhard v. Railroad, 89 S.W. 608; Ryan v. Railroad, 89 S.W. 869; Weller v. Railroad, 120 Mo. 650; O'Connor v. Railroad, 94 Mo. 150; Johnson v. Railroad, 77 Mo. 546; Thompson v. Railroad, 51 Mo. 190; Donahue v. Railroad, 91 Mo. 357; Huckshold v. Railroad, 90 Mo. 548. The natural instinct to avoid injury is always an element of evidence. Meadows v. Ins. Co., 129 Mo. 93; Davis v. Railroad, 46 Mo.App. 189. (2) The evidence on the part of plaintiff was very clear and convincing that the whistle was not blown or bell rung at or near the whistling post or elsewhere until just as the decedent was killed. The failure to give the statutory signals was negligence per se on part of defendant. Lloyd v. Railroad, 128 Mo. 595; Sullivan v. Railroad, 117 Mo. 245; Gratiot v. Railroad, 116 Mo. 450; Murray v. Railroad, 101 Mo. 242; Dickson v. Railroad, 104 Mo. 501; Henlon v. Railroad, 104 Mo. 387; Karle v. Railroad, 55 Mo. 47. (3) The establishment of point 1 and 2, above, casts the burden on the defendant, first to show that the failure to ring the bell or blow the whistle did not cause the death of decedent; second, to satisfactorily prove contributory negligence on the part of decedent. R. S. 1899, sec. 1102; Crumpley v. Railroad, 111 Mo. 158; Hook v. Railroad, 162 Mo. 603; Petty v. Railroad, 88 Mo. 321; Green v. Railroad, 90 S.W. 805; Riska v. Railroad, 180 Mo. 188; Weller v. Railroad, 164 Mo. 200; Huckshold v. Railroad, 90 Mo. 556; Kennayde v. Railroad, 45 Mo. 262. (4) Unless the evidence for plaintiff clearly shows contributory negligence, it follows logically from points 1, 2, and 3, foregoing, that where the evidence of contributory negligence is offered by the defendant, the question is for the jury. The case should go to the jury, first, when there is room for a difference of opinion among practical men from all walks of life as to whether there was care and caution on part of deceased; second, when there is a conflict in the evidence; third, when the truthfulness of a witness is in question. Eckhard v. Railroad, 190 Mo. 593; Church v. Railroad, 119 Mo. 215; Franklin v. Railroad, 188 Mo. 542; Field v. Railroad, 88 S.W. 134; Jones v. Barnard, 63 Mo.App. 509; Lamb v. Railroad, 147 Mo. 186; Jennings v. Railroad, 112 Mo. 277; Stone v. Hunt, 94 Mo. 475; Buesching v. Gas Light Co., 73 Mo. 219; Railroad v. Miller, 99 F. 529; Keun v. Railroad, 90 Mo. 314; Huckshold v. Railroad, 90 Mo. 548; Kelly v. Railroad, 101 Mo. 67; Petty v. Railroad, 88 Mo. 318; Kennayde v. Railroad, 45 Mo. 255; Warren v. Exchange, 52 Mo.App. 157; Weller v. Railroad, 164 Mo. 199; Gannon v. Gas Co., 145 Mo. 502; Hutchinson v. Railroad, 161 Mo. 255; Baker v. Railroad, 122 Mo. 544. (5) Before a demurrer could be sustained at the close of the entire case, on account of contributory negligence, all the facts developed in the trial of the cause upon a fair and reasonable consideration, must point irresistibly to but one conclusion. If reasonable men might differ as to inferences to be drawn from facts disclosed, under well-settled rules the question of contributory negligence must be left to the jury. Eckhard v. Railroad, 190 Mo. 593; Gannon v. Gas Co., 145 Mo. 502. In order to overcome the presumption in favor of decedent and to defeat plaintiff's action, it devolved upon defendant to show by the weight of the evidence a failure on the part of the deceased to exercise ordinary care to avoid the injury, and that his failure to exercise such care was its proximate cause and so direct and immediate that but for the want of such ordinary care the injury would not have occurred. Riska v. Railroad, 180 Mo. 189; Weller v. Railroad, 164 Mo. 199; Fields v. Railroad, 88 S.W. 134. (6) The jury have a right to say of the testimony of any witness, "that it wants in the power to convince." Gannon v. Gas Co., 145 Mo. 519; Seshom v. Bank, 148 Mo. 265; Gregory v. Chambers, 78 Mo. 294; Wolfe v. Campbell, 110 Mo. 114; Mineral Land Co. v. Ross, 135 Mo. 107; Schroeder v. Railroad, 108 Mo. 322; Davies v. Railroad, 159 Mo. 1. (7) The deceased had the right to presume that defendant would do its duty, and to rely on the performance of such duty. Weller v. Railroad, 120 Mo. 653; Sullivan v. Railroad, 117 Mo. 214; Jennings v. Railroad, 112 Mo. 420; Crumley v. Railroad, 111 Mo. 152; Kennayde v. Railroad, 45 Mo. 261; Tabor v. Railroad, 46 Mo. 356; Hutchinson v. Railroad, 161 Mo. 255; Peterson v. Railroad, 89 S.W. 1042; Riska v. Railroad, 180 Mo. 188; Petty v. Railroad, 88 Mo. 318; Johnson v. Railroad, 77 Mo. 546; Halferty v. Railroad, 82 Mo. 99. (8) Decedent was not a trespasser, but had a right equal to that of defendant to the use of the road and the right to presume defendant would obey the law. Riska v. Railroad, 180 Mo. 191; Nixon v. Railroad, 141 Mo. 425; Baker v. Railroad, 147 Mo. 140; Rapp v. Railroad, 190 Mo. 144; Baker v. Railroad, 147 Mo. 232; Klockenbrink v. Railroad, 172 Mo. 689. If obedience to law would have prevented injury, defendant was negligent and plaintiff is entitled to recover. Hanlon v. Railroad, 104 Mo. 387; Karle v. Railroad, 55 Mo. 482; Zimmerman v. Railroad, 71 Mo. 476; Barkley v. Railroad, 76 Mo. 367; Henry v. Railroad, 76 Mo. 293. (9) If the defendant's agents (a) could have discovered the perilous situation of Porter, or (b) did so discover it in time to have prevented the accident and did not do so, then defendant is liable even though Porter was negligent. Klockenbrink v. Railroad, 172...

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