Burton v. Pryor

• Decision Date: 03 December 1917
• Docket Number: No. 12606.,12606.
• Citation: 198 S.W. 1117
• Parties: BURTON v. PRYOR et al.
• Court: Missouri Court of Appeals

198 S.W. 1117

BURTON v. PRYOR et al.

No. 12606.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

"Not to be officially published."

Action by Charlie Burton against E. B Pryor and Edward F. Kearney, as receivers of the Wabash Railroad Company, the Wabash Railway Company, and O. S. Stout. Judgment for plaintiff, and defendants appeal. Reversed.

J. L. Minnis and N. S. Brown, both of St. Louis, and O. C. Phillips, of Moberly, for appellants. Aubrey R. Hammett, of Moberly, for respondent.

TRIMBLE, J.

Action for damages on account of personal injuries received at a public crossing inside the western city limits of Huntsville. The verdict and judgment was for plaintiff in the sum of $900 and defendants appealed.

The negligence pleaded and relied upon in the submission of the case to the jury was the violation of ordinances of the city in two respects, viz.: First, failure to ring the bell at a distance of 80 rods before the crossing was reached and keep it ringing until passage thereover was accomplished; second, running a train at a high rate of speed and in excess of the ordinance limit of eight miles per hour.

The county road, at the crossing, runs in a southwesterly direction and the railroad had an easterly course. The county road runs west from the business part of the city till it reaches a point which, as we gather from the record, is about 300 yards northeast of the crossing and there it turns southwest toward and over the railway. Until the county road reaches a point about 30 steps north or northeast of the crossing, it is from three or four to perhaps ten feet lower than the railway tracks, and from said point said road goes up a grade to the crossing. A side or switch track lay eight feet north of and parallel to the main line. On the side track and west of the crossing stood a string of freight cars, the east end thereof being near the cattle guard which was 15 feet west of the crossing. A freight train, with the engine headed toward the west, stood east of the crossing on the side track, the engine being 40 steps from the crossing. South of the main track, and on the east side of the county road on a post 20 feet from the crossing, was an automatic electric crossing bell so arranged that the approach of a train on the main track to within a quarter of a mile on either side of the crossing would automatically start the bell to ringing and keep it ringing until the crossing was passed.

Plaintiff, a negro hunchback aged 30 years and weighing 120 pounds, was going southwest to the crossing, riding in a one-horse buggy with no top, owned and driven by a white man named Quant Burton from whom plaintiff had solicited a ride from Huntsville out to the vicinity of his home, near which Quant Burton would go in his homeward journey. The white man was on the right, which is what we will term the west side of the buggy as it approached the crossing. The presence of the string of cars west of the crossing, and the difference between the altitude of the county road and the railway tracks made it impossible, according to plaintiff's evidence, to see a train on the main line approaching from the west until the buggy was close enough to the main line to see past these freight cars, and by that time the horse would be within the danger zone. The horse and buggy came to and upon the crossing without stopping, but before the rear end of the buggy could clear the main track a passenger train coming from the west at a speed of 20 or 25 miles per hour struck it, killing the white man instantly, and, according to plaintiff's claim, injuring him in his back and kidneys.

Passing the question whether plaintiff's negative evidence that the bell was not ringing contained sufficient probative force to meet defendant's evidence that it was, so as to create an issue in that regard for the jury, we go at once to the question of plaintiff's right to recover raised by the other ground of defendant's demurrer to the evidence. In our consideration of said demurrer, we are not unmindful of the rule that where a showing of negligence, sufficient to go to the jury, has been made in a crossing case, the burden is on the defendant to show that such negligence was not the proximate cause of the injury or that the negligence of the plaintiff contributed thereto. We also bear in mind that all the evidence in the case must be regarded in the light most favorable to plaintiff, giving him the benefit of every reasonable inference the proof will bear, and treating as untrue the evidence offered by defendant in conflict with that of plaintiff's evidence. Neither have we lost sight of still another rule which may be involved herein, namely, that if plaintiff was in the buggy merely as the result of a solicited favor, and there was no element of principal and agent between plaintiff and the driver of said buggy, and plaintiff was not in charge of and had no control over its movements, then the negligence of the driver is not to be imputed to plaintiff. With these principles in mind we turn to the record for the facts.

Plaintiff testified that the horse and buggy went at "a slow trot" toward the crossing, but before the side track was reached — how far from it he would not say, except that it was not far — the horse, of its own accord, slowed down to "a fast walk" and went on across. When the horse was on the main line plaintiff says the engine was "right up agin" the cattle guard, and the horse, seeing the engine bearing down upon him, jumped and plunged to the south instead of going with the road to the southwest. The buggy lacked about two or three feet of clearing the rail when the engine struck it, killing the driver as we have said, and injuring plaintiff. There was no stopping of the buggy at any time before it went on the crossing. Plaintiff was sitting beside and on the left of the driver and says that as they approached the crossing he (plaintiff) looked both ways to see if a train was coming; that he saw the cars on the siding west of, and four or five feet from, the crossing and also the engine and train on the siding about 40 steps east of the crossing. When asked what else he did to determine whether any train was coming, he said, "I watched." He further said he was "right up on the track" when he first saw the train that hit the buggy, and that the engine was then "right up agin" the cattle guard. Some claim seems to be made in the brief that the horse, after passing the line of cars on the siding, saw the engine and, taking fright, leaped or darted forward to the track in front of the engine, drawing the buggy and plaintiff into danger. But plaintiff clearly and unequivocally says the horse had actually gotten on the main line when he jumped or lunged forward; that the horse was not running away at any time, and that the driver had full control of him up to the time the horse got on the main track. Further on in cross-examination plaintiff said he did not know how fast the buggy went up the grade to the crossing; just moderately; not too fast for a man to get out of an open buggy like that, but he did not remember whether it was going too fast for him to have gotten out or not; he would not say. He further said he had used that crossing many times, all his life; that he knew of the crossing-bell and knew it was there to warn persons about to cross of the approach of trains; that he had heard it ring at times. He was asked:

"Q. Was the crossing bell ringing? A. I didn't hear it. Q. Would you say whether it was ringing or not? A. No, sir; I ain't going to say, because I didn't hear it. Q. Did you listen for it? A. No, sir; I didn't think nothing about it. * * * Q. That rings on the approach of a train—you know that? A. Yes, sir. Q. Did you listen for it? A. No, sir; I didn't. Q. Did you listen for it? A. I was watching. Q. But didn't listen? A. Yes; I was listening. Q. When did you begin to listen for a train? A. When I got close to it. Q. And how close were you when you began to listen? A. Well, back a little ways from it."

It will be noticed that plaintiff does not deny that the crossing alarm was ringing, but only that he did not hear it. However, his witness Church Thomas, who was coming toward the crossing on his way to Huntsville and who stopped about 40 yards south or southwest of the crossing, says he did so because he heard the electric signal bell ringing and knew by that that a train was coming one way or the other; that he stood there three or four minutes during which the crossing bell was ringing continuously; that he heard it distinctly and could hear it for probably 100 yards, and that while standing there he saw the collision. Other witnesses say it was ringing, and no one says it was not. Hence it may be taken as clearly established that it was ringing.

It was also in evidence that Taylor Sanderson who was in a buggy and traveling the same road and direction plaintiff and his friend were, but who was a little ahead of them and who reached the crossing shortly before they did, had stopped in the road with his horse about 20 or 25 feet from the main line track, and was waiting at this point for the train to pass when Burton and plaintiff came up and passed him to the right, going on over the crossing. It was also in evidence that a man by the name of Leathers was standing in the road on the south side of the crossing when Burton and plaintiff came up to the crossing and that Leathers hallooed and motioned to them to stop, but they paid no attention to him. No one swears these witnesses were not there. Plaintiff, as in the case of the crossing bell, refused to say they were not there, but only that if they were he did not see them, and if Leathers hallooed to him he did not hear it. Further on plaintiff said he did not know the train was coming as they started up the grade.

"Q. Were you looking for it then? A. Yes, sir. Q. How far...