Baker v. Kansas City, Ft. S. & M. R. Co.
| Citation | 26 S.W. 20 |
| Court | United States State Supreme Court of Missouri |
| Decision Date | 24 March 1894 |
| Parties | BAKER v. KANSAS CITY, FT. S. & M. R. CO. |
1. Cars were detached from a train and, with the conductor on them, allowed to follow the train on a down grade at a speed of 5 to 12 miles an hour to a highway crossing. At some little distance therefrom the conductor attempted to attract the attention of a person approaching the crossing in a wagon, and set the brakes of two cars, and then, thinking a collision certain, jumped off. Held, that there was negligence. Sherwood, J., dissenting.
2. It is a question for the jury whether a woman whose team was run into at a highway crossing by detached cars following a train, which had passed while she was at a distance of 80 to 125 feet from the crossing, was guilty of contributory negligence, though she did not stop her team, and did not look in the direction of the cars, immediately before going on the tracks, and though she wore a hood; there being evidence that it did not materially affect her hearing, that the conductor on the cars made no effort to give her warning after the cars were within 100 feet of the crossing, that an engine house and coal bin at the side of the track, 100 feet from the crossing, obstructed, to some extent at least, her view of the cars till they were within that distance of the crossing, and she having testified that she listened and thought she looked in the direction from which the cars were coming. Sherwood, J., dissenting.
3. An amendment to a bill of exceptions can be made, notwithstanding the judge who signed the bill was out of office, where there was sufficient of record to amend by.
4. An instruction that if defendant railroad company cut a number of its cars loose from the rest of its train, and permitted them to run at a dangerous rate of speed across the public highway, just after the rest of its train had passed, with a locomotive attached, and without giving any warning sufficient to notify persons approaching the crossing, and in such a manner as to endanger travelers along the highway, such conduct was negligence, is not objectionable on the ground that there was no evidence that there was a dangerous rate of speed, the evidence being that it was 5 to 12 miles an hour, as the expression must be considered with regard to the circumstances; nor is it objectionable as declaring defendant negligent as a matter of law, as the facts conjunctively constitute negligence. Sherwood and Burgess, JJ., dissenting.
5. The fact that an erroneous instruction, given at defendant's request, stating that certain facts would constitute contributory negligence, is inconsistent and conflicting with correct instructions, given at plaintiff's request and of the court's own motion, leaving it to the jury to determine whether under the circumstances there was contributory negligence, is not ground for reversal where defendant is the appealing party. Black and Macfarlane, JJ., dissenting.
In bank. Appeal from circuit court, Bates county; D. A. De Armond, Judge.
Action by Martha Baker against the Kansas City, Fort Scott & Memphis Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.
Wallace Pratt, C. W. Blair, I. P. Dana, E. D. Kenna, and Adiel Sherwood, for appellant. Gates & Wallace, for respondent.
This was an action to recover damages for personal injuries sustained by the plaintiff while she was attempting to pass over the defendant's railroad tracks with a two-horse team and farm wagon, at a point where the tracks cross a highway near the southern limits of the town of Rich Hill. It is earnestly insisted that there is no evidence of negligence on the part of the defendant, that the plaintiff was guilty of contributory negligence, and that the trial court should have ruled both of these questions for the defendant as a matter of law.
The record discloses the following facts: The railroad tracks run nearly east and west, and the highway runs nearly north and south, at the crossing. The plaintiff was traveling towards the north. When she reached a point from 80 to 125 feet south of the railroad crossing, a train of cars, composed of an engine, caboose, and four flat cars, passed over the crossing, going east. After the train passed, the plaintiff drove on, and, while on the second or main track, five detached box cars, following after the train, struck the wagon. The train was at first composed of all of the cars before mentioned. The conductor desired to take out the four flat cars and place them on what is called the brickyard switch, which was some distance east of the crossing. When at a point about 400 feet west of the crossing, he caused the five rear box cars to be detached, and the engine then ran on east over the crossing, with the caboose and flat cars, with a view of setting the flat cars in on the brickyard switch. The five detached box cars followed the train on a down grade in charge of the conductor, who was on top of them. He says he saw the plaintiff when he was 250 feet west of the crossing; that she was then 100 or 150 feet south of it; that she could have seen the moving box cars if she had looked; that he whistled and hallooed to give her warning; that, when he got within 100 feet of the crossing, he saw she did not notice the cars; that he then set the brake on the forward car, and then on the second one, and jumped off. He says he jumped off because he knew the cars would strike the wagon, and he thought the collision would ditch the cars. Several other witnesses say the conductor shouted to the plaintiff before he began to set the brakes. One of them, who stood about 150 feet from the crossing, says the box cars were from 75 to 100 feet from the crossing when he first heard the shouts of the conductor, and it was then that the conductor began to set the brakes. The box cars were moving at a rate of speed variously estimated from 5 to 12 miles per hour. The highway south of the railroad was, in general, level. At a point 15 or 20 feet south of the crossing it was 4 or 5 feet lower than the railroad tracks, and some 2 feet lower at a distance of 100 or 200 feet further south. An engine house and coal bin stood west of the crossing, and south of the main track, so that they obstructed, to some extent at least, plaintiff's view of the box cars as they moved towards the crossing. According to the measurements made, the east end of the coal bin was about 100 feet west of the center of the main track crossing. This structure stood on posts 4 feet 4 inches above the ground, and the box part was 2 feet 4 inches higher. It was 64 feet long, extending west nearly parallel with the main track. There was a space of 25 feet between the west end of the bin and the engine house. There is evidence to the effect that a person in a wagon on the highway, at a point from 100 to 150 feet south of the crossing, could look over the bin, and see the upper part of box cars moving on the main track; and there is other evidence, to the effect that the bin stood on the ground higher than the highway, so that the line of vision would be above the box cars. In going north, the plaintiff first came to two spur tracks, and 20 or 25 feet further north she came to the main track, the place where the cars struck the wagon. As the coal bin was 100 feet west of the crossing, it is evident that a person 100 feet south of it, in a wagon on a highway, would have a full view of at least 100 feet of the main track from the crossing west, and the extent of this view would increase as the person approached the tracks. The evidence shows that the plaintiff had often passed over this crossing, and was familiar with the surroundings. Being asked if she looked west, she said: "Well, I do not say for sure that I looked, but I always do look, and I think I must have looked that time; if I failed to look, it was the first time." And to another like question she said: "Well, I always looked before I drove on the track, and, if I failed to look that time, it was the first; but, to the best of my knowledge, I looked each way." She had previously said: "I was driving when the engine passed on, and, of course, when I saw it was out of the way, I drove on; I know I was not out of a good walk." When she got on the main track she gave her horses a stroke with the lines. Of the four witnesses who saw her, and heard the conductor halloo, two did not know which way she was looking, and two thought she was looking east toward the train she had passed. It is manifest that she did not hear the shouts of the conductor, nor did she see the box cars until she got on the main track. She had a hood on her head, which was produced in court. Some of the evidence tended to show that it interfered with her hearing, and some of it is to the contrary effect.
1. As to the first objection, we have no hesitancy whatever in saying there is an abundance of evidence of negligence on the part of the defendant. The right of the public to use the highway is equal to that of the defendant, and the defendant was in duty bound to manage the movement of its cars accordingly. The practice of making a flying switch over a highway has been condemned as a negligent act time and again by this and other courts. Here the evidence of the conductor shows that the five box cars were detached from the moving train, and allowed to run on a down grade at a rate of at least six miles per hour. The engine having been detached, no signals could be given by ringing the bell or sounding the whistle, one of which a person traveling on the road has a right to expect. That the defendant was negligent, notwithstanding there was a person on the box cars performing the duties of a brakeman, is too clear too call for further discussion. O'Connor v. Railway Co., 94 Mo. 150, 7 S. W. 106; Beach, Contrib. Neg. (2d Ed.) § 217; French...
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