Byars v. Wabash Railroad Co.
| Decision Date | 05 December 1911 |
| Citation | 141 S.W. 926,161 Mo.App. 692 |
| Parties | LULA BYARS, Respondent, v. WABASH RAILROAD CO., Appellant |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
AFFIRMED.
STATEMENT.--This is an action under section 2864, R. S. 1899, as amended by Laws of 1905, 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 travelled public road crossing at the eastern limits of Benton City, Missouri (a place of about one hundred and fifty 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 $ 6875 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 nine hundred 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 angle 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 three hundred 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 two hundred 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 three hundred and ten feet northwest of the crossing, still another track, called the "house" track, diverged from it on the north side and ran northwestwardly and paralleled 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 ten feet wide and forty or fifty 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 "out-post" of obstructions to the view of the main track from Sims street when approaching that track from the north. The main track was forty-two 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 out-houses 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 three hundred and ten feet up to the furniture car, which protruded eastwardly and southwardly from the stock pen, which was some three hundred and fifty feet away. It is in plaintiff's evidence that, coming from the north, when one got on to the right of way and within twenty 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 nine hundred feet. It may also be assumed from the evidence that when one got within forty feet of the track he could see five or six hundred 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, forty minutes behind time, and going sixty miles an hour. It reappeared past the furniture car and Romans saw the team driven by Carter going up on the grade to cross the track. He testified that the men were facing south, the way they were going. The front part of the wagon was nearly across the track when the engine hit them. The wagon was broken into bits and the two men and the horse were killed. The mule lunged forward and escaped. The train went a quarter of a mile further before it could be stopped. Richard McMahan was standing on the porch with Romans. He testified, on cross-examination by defendant's counsel, that he saw the team go on the track in a trot. He did not know whether the men were sitting down or standing up. John Crum was sitting in his wagon in Front street, fifty or sixty feet north of the depot, when the train passed. On cross-examination by defendant's counsel he testified that he looked down toward the Sims street crossing and saw the team going up the grade of the railroad track. This grade commenced about fifteen feet north of the main track. The team was going in a slow trot--about four or five miles an hour. When he saw them, the men were about fifteen feet from the track. The team was nearer. The train was then forty or fifty feet away. Witness could not tell whether the men were standing up or sitting on a seat. They could be seen from about the waist up. They were side by side and looking straight ahead south. The mule and horse were pulling about even when he saw them. S. L. Palmer, a witness for defendant, testified that he was standing near Crum, up north of the depot, and saw Carter and Byars when their team was one hundred and twenty feet from the track; that they were standing up looking towards the south and kept on doing that until they were on the track. Mrs. Tretchell testified, on cross-examination by defendant's counsel, that she was a block west of the crossing and across a street which parallels the right of way on the south when the men drove up toward the crossing. She saw them when they were close to the track. They were standing up in the wagon. She could not tell whether both had hold of the lines. The team seemed to be pulling even. She could not tell how the men were facing. She was not watching them. The team was trotting at moderate speed. J. F. Powell, the fireman on the engine which killed the men, testified as a witness for defendant that he was on the left, or north, side of the engine looking ahead; that when the engine was between three and five hundred feet from the crossing, he saw the men in the wagon. The driver (Carter) had his back to the engine and appeared to be standing in the wagon. The other man (Byars) was sitting on the east side of the wagon, with the front of his body facing toward the coming engine, but his face was turned south. The team was jogging along at a trot when the mule saw the train and threw up his head, and Byars then looked and seemed to say something to Carter and Carter looked around at the...
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