Carter v. Wabash R. Co.

Citation182 S.W. 1061
Decision Date08 February 1916
Docket NumberNo. 14838.,14838.
PartiesCARTER v. WABASH R. CO.
CourtCourt of Appeal of Missouri (US)

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

"To be officially published."

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

David H. Robertson, of Mexico, Mo., and J. L. Minnis, of St. Louis, for appellant. Barclay, Fauntleroy & Cullen, of St. Louis, and Fry & Rodgers and E. S. Gantt, all of Mexico, Mo., for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff under the wrongful death statute on account of the negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

The grounds of negligence relied upon relate to the failure of defendant to sound the bell or whistle attached to its locomotive engine on approaching a public road crossing at which plaintiff's husband was killed. It appears plaintiff's husband and his neighbor Byars were en route home from Benton City, riding in an ordinary lumber wagon drawn by a team consisting of one horse and a mule. The hour was about noon, and they were driving south in the highway approaching the crossing on defendant's track when it appears decedent's team became frightened and ran upon the track immediately in front of defendant's locomotive and train. Plaintiff's husband was engaged in driving the team. The railroad track runs slightly southeast and northwest through Benton City, a small town, while the highway — that is, Sims street — on which plaintiff's husband was driving, runs north and south. Sims street is at the eastern border of Benton City, and is a much-used public highway on which defendant maintained a railroad crossing. Front street, in Benton City, parallels the railroad track on the north side and immediately south of it; that is, between it and the railroad tracks are a number of residences, outhouses, trees, etc., so as to more or less obstruct the view to the westward of one driving south on Sims street until Short street is reached, where the view is more or less open, but obstructed further west to some extent. Decedent, driving the team, came south on Sims street, across Short street, and south of the latter street where upon defendant's right of way several obstructions to the western view appear. Besides the defendant's main line, it maintained two side tracks north of it. Near or about 425 feet west of the Sims street crossing and 44 feet to the north of the track on the right of way defendant maintained its stock pens. Further west were certain corn cribs and other small buildings. About 14 feet north of the main track was what is called the passing track, and 18 feet 8 inches north of the passing track, that is, between 31 and 32 feet north of the main track, was defendant's house track. Both of these side tracks separated from the main line some distance west of the Sims street crossing. On the stock track were standing a string of stock cars immediately south of the stock pen, and also a furniture car with its west end opposite the east end of the stock pens, but the furniture car was situate on the curve of the track, and was about 40 feet in length. The east end of the furniture car, it is said, stood about 23 feet north of defendant's main track, and other cars were west of it. All of these tended to obstruct the view to the westward of one driving toward the railroad crossing on Sims street. Defendant's train which occasioned the death of plaintiff's husband, it is said, was running from 50 to 60 miles an hour in an endeavor to make up lost time, for it was 40 minutes late. It is in evidence, too, that defendant's west-bound passenger train was due at Benton City about that time, and as plaintiff's husband approached the tracks he was seen to be looking toward the eastward. The evidence tends to prove that from a point 40 feet north of the crossing he might have seen the approaching passenger train from the west, say, for 700 or 800 feet. The evidence is that the wind was blowing from the east, and defendant's train came from the west at a high rate of speed, from 50 to 60 miles per hour, and on the part of plaintiff a number of witnesses say neither bell nor whistle was sounded; that is, the usual statutory crossing signals were not given. Defendant's fireman says — that is, in his evidence most favorable to plaintiff — that he observed plaintiff's husband driving toward the track when he was about 50 feet north of the crossing, and his face at that instant was to the southeast, but he immediately looked to the westward, and at the same time the mule he was driving became frightened and started forward, and plaintiff's husband was trying to hold it. It is to be inferred from the evidence that the team became unmanageable and ran immediately in front of the train. Indeed, the mule escaped entirely, that is to say, he crossed the track without serious hurt, while plaintiff's husband and his companion, Byars, were killed as a result of the collision as was also the horse. It is quite obvious from the evidence that the mule became frightened on the coming into view of the fast approaching train as it emerged from beyond the furniture car on the sidetrack, and ran forward in an endeavor to cross ahead of it. Indeed, it appears that Byars laid hold of the lines as well, and jointly endeavored with plaintiff's husband to control the team. The witness says concerning this:

"Yes; as soon as he saw the mule was scared he looked and got up, and the other man looked and commenced pulling on the line. Well, it looked to me as if the man ahold of the lines wasn't going to hold the mules, and that's what the other man thought, and went up to help him, and they was both holding the lines."

Moreover, this witness, the fireman, said that both men appeared to be excited at the time.

It is argued that the court should have directed a verdict for defendant, but we are not so persuaded. Although there is evidence on the part of defendant tending to prove the necessary signals on approaching the crossing were given, it is conceded in the argument that the evidence is abundant on the part of plaintiff tending to prove the contrary; that is to say, that defendant was negligent, in that it failed to sound the signals required by the statute. The statute (section 3140, R. S. 1909) requires either that the bell attached to a locomotive engine approaching a...

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10 cases
  • Doyel v. Thompson, 40442.
    • United States
    • United States State Supreme Court of Missouri
    • May 27, 1948
    ......229, 172 S.W. (2d) 835; Scott v. Kurn, 343 Mo. 1210, 126 S.W. (2d) 185; Rischeck v. Lowden, 347 Mo. 426, 147 S.W. (2d) 650; Dickey v. Wabash Ry. Co., 251 S.W. 112; Stevens v. Thompson, 175 S.W. (2d) 166; State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W. (2d) 46. (6) The verdict is under ...Dobson v. St. Louis-S.F. Ry. Co., 10 S.W. (2d) 528; Pokora v. Wabash Ry. Co., 292 U.S. 98, 54 S. Ct. 580; Carter v. Wabash R. Co., 182 S.W. 1061; Swigart v. Lusk, 192 S.W. 138. (3) One who suddenly finds himself in a position of great peril through the ......
  • Perkins v. Kansas City Southern Ry. Co., 29380.
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    ...negligence if in such a moment he chooses the wrong way. Underwood v. Railroad, 190 Mo. App. 418, 177 S.W. 724; Carter v. Railroad, 193 Mo. App. 223, 182 S.W. 1061; Boyce v. Railroad, 120 Mo. App. 175, 96 S.W. 670; Miller v. Engle, 185 Mo. App. 578, 172 S.W. 631; Lang v. Ry. Co., 115 Mo. Ap......
  • Armentrout v. Hughes, 521
    • United States
    • United States State Supreme Court of North Carolina
    • January 31, 1958
    ...Co., 131 Ind. 261, 29 N.E. 1069; Mulchahey v. Washburn Car-Wheel Co., 145 Mass. 281, 14 N.E. 106, 1 Am.St.Rep. 458; Carter v. Wabash R. Co., 193 Mo.App. 223, 182 S.W. 1061; Morgan v. Oronogo Circle Mining Co., 160 Mo.App. 99, 141 S.W. 735; Birkett v. Knickerbocker Ice Co., 110 N.Y. 504, 18 ......
  • Carter v. Wabash Railroad Co.
    • United States
    • Court of Appeal of Missouri (US)
    • February 8, 1916
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