Bowen v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 04 December 1923 |
| Docket Number | No. 17986.,17986. |
| Citation | 256 S.W. 152 |
| Court | Missouri Court of Appeals |
| Parties | BOWEN v. ATCHISON, T. & S. F. RY. CO. |
Appeal from Circuit Court, Knox County; James A. Cooley, Judge.
"Not to be officially published."
Action by Burnett H. Bowen against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.
Cyrus Crane and Geo. J. Mersereau, both of Kansas City, James C. Dorian, of Edina, Homer Hall, of St. Louis, and Winston H. Woodson, of Kansas City, for appellant.
Stewart & Stewart, of Edina, for respondent.
This is an action for damages for killing a mule by defendant's west-bound passenger train at a public crossing about 924 feet west of the depot at Hurdland, Knox county. From a verdict and judgment for plaintiff for $170, about the alleged value of the mule, defendant appeals.
The petition is in two counts. The first count is grounded on the negligence of the defendant in failing to sound the whistle or ring the bell on the engine 80 rods from the public crossing, and in failing to keep the whistle sounding at intervals or the bell ringing until it had crossed. The second count is grounded on the negligence and carelessness of defendant in running the engine against the mule, and in negligently and carelessly failing to have the' engine under control so that it could have stopped in time to avoid the injury after the mule was or could have been seen in, upon, or approaching said crossing, and in failing to sound the whistle or giving any warning so as to frighten the mule from the railroad track.
The evidence tends to show that plaintiff is the owner of a farm adjoining the right of way of defendant, and at the intersection of the public road with the railroad tracks of defendant plaintiff owns some land on the west side thereof. The mule in controversy was pastured on the west side of the tracks, and plaintiff's home was to the east thereof. On said night the mule escaped from the pasture on the west side and came to the barnyard gate on the east side. About 5 o'clock on the morning of the 27th plaintiff was notified that the mule had been killed by one of defendant's trains.
Defendant's railroad runs through the town of Hurdland, and within the station grounds are four tracks, a west-bound track, an east-bound track, a passing track, and a house track, all running in a general east and west direction. A public road runs in a general north and south direction, and crosses all four tracks about 924 feet west of the depot and within the station grounds. The right of way at this public crossing is about 300 feet wide. An elevator is located on the other side of the tracks from the depot.
Plaintiff stated that on the night of December 26, 1920, he went into his home about 4 o'clock, and that the moon was shining. There was a light snow on the ground, but did not know whether or not the atmosphere was hazy during the night. He did not leave his house until about 5 or 5:30 on the morning of the 27th, when he was called on the telephone by defendant's section foreman, and advised that a mule had been struck by the second division of defendant's No. 5 train, and was asked to come to the public crossing, where he identified the dead mule as his property. Over the objection of defendant, he testified that about 5:30 p. m. on March 1, 1922, he made observations from the east to ascertain the distance the crossing could be seen, and stated that the track was clear for about a half mile east of the crossing, and that one standing on the track 42 rails east of the crossing could see objects crossing. He had had no experience in railroading. And, over the objection of the defendant, he testified that one could have had a clear vision of the crossing for a quarter, and a half a quarter of a mile. Two other witnesses Who made like observations during the daytime, over the objection of defendant, gave similar testimony. The testimony tends to show that the second division of train No. 5 went through Hurdland between 3:30 and 4 o'clock a. m. on December 27th. Witness Irwin, for plaintiff, testified that he lived about 300 feet away from the tracks; that he arose between 4 and 5 a. m., and that about 3:30 or 3:40 a. m. or close to 4 o'clock he heard a train going west while wide-awake, but he heard no whistle or bell; that he could hear the whistles and bells as the trains went through there, and it would feel like they would blow you out of bed; that one train went through after he arose; that he heard only one train along from 3:30 to 4 a. m. The following question was asked and answered:
"
The evidence shows that the previous west-bound train passed between 2:30 and 2:40 a. m., and no other train except the train which struck the mule passed there until after witness arose.
No one except the engineer and the fireman witnessed the accident, and their evidence shows that the night was hazy. The train was second division No. 5. It did not stop at Hurdland, and was running 35 or 40 miles an hour; that the crossing whistle was blown at the 80-rod whistle post, the bell ringing continuously from the whistling post until after crossing. The engineer, due to the hazy atmosphere, had to lean far out of the cab window to see. The engine was equipped with an electric headlight focused 600 feet ahead, and that at a point 600 feet ahead the rays of the headlight were about 300 feet wide. The engineer was looking out of the right-hand window paying close attention to this crossing, which was about 3:30 to 4 a. m. on December 27, 1920, He first saw the mule when it and another mule came into the rays of the headlight about 50 feet in front of the engine and 8 to 12 feet north of the crossing, running very fast toward the railroad tracks. He testified that he could not have stopped the train in less than 700 or 800 feet, nor did he have time to blow the alarm whistle or turn on the steam exhaust.
I. As to the first count of the petition, relative to the statutory negligence of failing to blow the whistle or ring the bell, should, the case have gone to the jury? We think so. While this phase of plaintiff's case is bottomed on the...
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