Byars v. Wabash R. Co.

• Decision Date: 05 December 1911
• Citation: 141 S.W. 926,161 Mo. App. 692
• Parties: BYARS v. WABASH R. CO.
• Court: Missouri Court of Appeals

141 S.W. 926

161 Mo. App. 692

BYARS v. WABASH R. CO.

St. Louis Court of Appeals. Missouri.

December 5, 1911.

Rehearing Denied December 22, 1911.

1. NEGLIGENCE (§ 93) — IMPUTED NEGLIGENCE—DRIVER OF VEHICLE AND OCCUPANT.

The negligence of a driver of a vehicle is not imputable to his guest in the vehicle.

2. RAILROADS (§ 346)—ACCIDENTS AT CROSSINGS — ACTION — BURDEN OF PROOF — PRESUMPTIONS.

The burden of proving that a traveler killed by a train at a crossing was guilty of contributory negligence is on the railroad company as against the presumption that decedent exercised due care.

3. RAILROADS (§ 350)—ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

It is not error to overrule a demurrer to the evidence in an action for the death of a traveler, struck by a train at a crossing, on the ground that the evidence shows his contributory negligence, unless it affirmatively and conclusively appears that decedent failed to act as an ordinarily prudent person under the circumstances.

4. RAILROADS (§ 348)—ACCIDENTS AT CROSSINGS—LOOKING AND LISTENING FOR TRAINS —EVIDENCE.

Where a guest of a driver of a vehicle approaching a railroad crossing appeared to call the driver's attention to an approaching train when they were in a position of apparent safety, there was evidence that the guest looked and listened for trains, and did all the law required of him.

5. RAILROADS (§ 348)—ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE — EVIDENCE.

Evidence held to justify a finding that the guest of a driver of a vehicle approaching a railroad crossing was not guilty of contributory negligence, so as to warrant a recovery for his death by being struck by a train.

6. NEGLIGENCE (§ 72)—CONTRIBUTORY NEGLIGENCE—SUDDEN DANGER.

One exposed to sudden danger is not chargeable with negligence merely because he does not adopt the safest course to avoid injury, and whether the course adopted was such

as a man of ordinary prudence would have adopted is for the jury.

7. RAILROADS (§ 346)—ACCIDENTS AT CROSSINGS — FAILURE TO GIVE STATUTORY SIGNALS—EVIDENCE.

Under Rev. St. 1909, § 3140, making a railroad company failing to give the statutory signals for a crossing liable for damages to one injured at the crossing, proof of failure to give the statutory signals accompanied by proof of an injury to a traveler at the crossing established a prima facie case of liability, and places the burden on defendant to prove that the failure to give the signals did not cause the injury.

8. APPEAL AND ERROR (§ 882)—INVITED ERROR —RIGHT TO COMPLAIN.

A party inviting an error by asking and obtaining an incorrect instruction in conflict with a correct instruction may not complain of the conflict.

9. RAILROADS (§ 350)—ACCIDENTS AT CROSSINGS —CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Whether a traveler approaching a railroad crossing should stop, in addition to looking and listening for trains, is for the jury.

10. RAILROADS (§ 351) — ACCIDENTS AT CROSSINGS—EVIDENCE—INSTRUCTIONS.

Where, in an action for the death of a traveler struck by a train at a crossing, there was ample evidence that the trainmen could have rung a bell or blown a whistle as prescribed by statute and that they failed to do so, a charge that the trainmen made use of all precautions of which they could make use was properly refused.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Lula Byars against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action under section 2864, R. S. 1899, as amended by Laws 1905, p. 135, for damages on account of the death of plaintiff's husband, who, while riding in an ordinary farm wagon with Edward Carter (also killed), was struck upon a much traveled public road crossing at the eastern limits of Benton City, Mo., a place of about 150 inhabitants, by one of the defendant's passenger trains. The tragedy occurred on February 7, 1908, about noonday. A trial being had, the plaintiff had verdict and judgment for $6,875, and the defendant has appealed.

The first allegation of negligence contained in the petition is that the defendant failed to give the statutory signals by bell or whistle while approaching the crossing. Another allegation is that the train approached the crossing at an excessive and negligent rate of speed. The second charge of negligence, however, was not submitted to the jury; hence is not before us. The answer contained first a general denial, and then a plea that plaintiff's husband was guilty of contributory negligence in going upon the defendant's track at a public crossing without using the precaution to stop, look, or listen for the approaching train. The reply was a general denial.

There was ample evidence that defendant failed to give the statutory signals as charged. The question is whether the state of the evidence is such as to convict plaintiff's husband of contributory negligence as a matter of law.

The defendant's right of way runs diagonally through Benton City from northwest to southeast, crossing Sims street at an angle as it passes out of the corporate limits. Sims street runs north and south. The defendant's depot is on the south side of the railroad about 900 feet northwest of the Sims street crossing. Short street immediately adjoins the railroad right of way on the north, and runs parallel with it from Sims street northwestwardly to a merger with Front street near the depot. Front street intersects Sims street a block north of the railroad, and runs west to the merger with Short street. The space between these streets forms a large right-angled triangle, of which Sims street is the base, Front street the perpendicular, and Short street the hypothenuse. This triangular space is separated into two city blocks by Hardin street, which runs north and south about 300 feet north of Sims street. The northern part of the block to the east of Hardin street was at the time we are concerned with occupied by a store building and three residences, with a barn, trees, etc., but the southern part of the block appears to have been vacant. Up alongside the railroad right of way beginning at about the middle of Hardin street and running northwest were stock pens, coal bins, granary, scales, etc. These were not on the right of way, but were in the south part of Short street and adjoined the right of way. Only the defendant's main line ran down to and across Sims street; but at a point some 200 feet northwest of the Sims street crossing another track called the "passing" track diverged therefrom on the north side, and ran northwestwardly and parallel with the main track to a point beyond the depot. When this passing track had reached a point about 310 feet northwest of the crossing, still another track, called the "house" track, diverged from it on the north side and ran northwestwardly and parallel with the passing track to a point beyond the depot. This house track ran alongside of the stock pens, etc., and was used in loading and unloading therefrom. At the time when plaintiff's husband was killed the stock track was filled with cars, mostly box cars. One car, a large furniture car, some 10 feet wide, and 40 or 50 feet long, was standing east of the east end of the stock pen and on the curve of the house track into the passing track. This car formed what may be termed the "outpost" of obstructions to the view of the main track from Sims street when approaching that track from the north. The main track was 42 feet from the northern line of the right of way at Sims street. One driving east down Front street and turning south into Sims street would, as he drove in the direction of the railroad, first have his view of the railroad to the right, or west, obstructed by the nearby residences and store which fronted north on Front street and the trees and outhouses connected therewith. The southern part of this block, however, was unoccupied, and as one came to it and passed on across Short street, and on to defendant's right of way, the view to the right, or north, was unobstructed for over 310 feet up to the furniture car which protruded eastwardly and southwardly from the stock pen which was some 350 feet away. It is in plaintiff's evidence that coming from the north, when one got onto the right of way and within 20 feet of the main track at the Sims street crossing, but not before, a view of the track could be had up to the depot about 900 feet. It may also be assumed from the evidence that, when one got within 40 feet of the track, he could see 500 or 600 feet up the track toward the depot. On February 7, 1908, plaintiff's husband, Joseph Byars, rode to Benton City with Ed Carter, a neighbor. Carter was taking a load of hogs to town in an ordinary farm wagon pulled by a horse and a mule. The team and wagon belonged to Carter, and he was doing the driving. Byars had business of his own in town, and was riding as Carter's guest. They reached Benton City, and Carter delivered his hogs. They then drove to Johnson & Romans' place on the north side of Front street near the depot. About noon they got into the wagon again, and went east along Front street to Sims street. Carter was driving. It was about five minutes before a train from the east was due. The train from the west was behind time. A strong wind was blowing from the east. Romans watched the men and vehicle from the porch in front of his place as they drove away. On cross-examination by defendant's counsel, he testified that the team and wagon with Carter driving turned south toward the railroad on Sims street. After they got past the residence on the corner, he got a glimpse of them again going toward the track. He thought they were sitting on a seat with their bodies visible above the sideboards. About that time defendant's No. 20 passenger train sped by toward the crossing 40 minutes behind time, and going 60 miles an hour. It reappeared past the furniture car, and...