Connor v. Wabash Railroad Company
| Decision Date | 14 June 1910 |
| Citation | 129 S.W. 777,149 Mo.App. 675 |
| Parties | DOLORES CONNOR, by Next Friend, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
Judgment affirmed.
J. L Minnis, Robertson & Robertson for appellant.
(1) Under the evidence of plaintiff her own contributory negligence was the proximate cause of her injury, and the court erred in refusing to direct a verdict for the defendant, both at the close of the plaintiff's evidence and at the close of all of the evidence. Boyd v Railroad, 105 Mo. 391; Spillane v. Railroad, 135 Mo. 424; Hutchison v. Railroad, 161 Mo. 254; Mockowick v. Railroad, 196 Mo. 550; Walker v Railroad, 193 Mo. 453; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Stotler v. Railroad, 204 Mo. 619; Holland v. Railroad, 210 Mo. 338; McNamara v. Railroad, 126 Mo.App. 152. The credible evidence in this case shows that the surrey was driven upon the crossing immediately in front of an approaching engine without the plaintiff stopping to look or listen before going upon the track. Not only is this true as to the credible evidence in the case, but it is established by the plaintiff's own testimony, for had she looked she would have seen and if she looked she saw. Lane v. Railroad, 132 Mo. 4; Payne v. Railroad, 136 Mo. 562; Kelsay v. Railroad, 129 Mo. 362. (2) Plaintiff's instruction number one which told the jury that if the defendant failed to ring the bell "and also failed to sound the whistle and that such failure was the direct cause of plaintiff's injury, then the defendant is liable" contradicts itself, is contrary to defendant's instruction number two given, and is contrary to the statute, sec. 1102, R. S. 1899. Plaintiff's instruction number four again puts the duty upon the defendant to sound the whistle as well as to ring the bell. The hypotheses submitted to the jury in both instructions requires the sounding of the whistle, while the statute in cities requires only the ringing of the bell. The statute does not impose the alternative to sound the whistle or ring the bell. It requires only the ringing of the bell. Coffin v. Railroad, 22 Mo.App. 601; Kennayde v. Railroad, 45 Mo. 255, 261. But the statute can not apply in this case as to the ringing of the bell as eighty rods would place the engine east of Missouri avenue, or the crossing at the ice house, and the instruction required an impossibility as to ringing of the bell. Lamb v. Railroad, 147 Mo. 171. (3) The action of plaintiff's counsel in bringing the bundle of weeds into the courtroom and exhibiting them to the jury was misconduct and calculated to prejudice the jury against the defendant. Underhill on Evidence, sec. 142; Thompson on Trials, sec. 825, 963; Levels v. Railroad, 196 Mo. 606. (4) Plaintiff's instruction No. 3, attempting to excuse the plaintiff from her own negligence, was error and is contrary to the law as expressed in the Fechley case. There was no evidence in the case upon which to base this instruction, for instead of showing that she relied upon the driver, it shows that she relied upon herself. Elliott on Railroads (2 Ed.), sec. 1174; Fechley v. Traction Co., 119 Mo.App. 358. (5) The court erred in giving plaintiff's instructions using the words "negligence" and "contributory negligence," without defining them to the jury. Magrane v. Railroad, 183 Mo. 119. While it is not necessary under all circumstances to define these words, (Landrum v. Railroad, 132 Mo.App. 717) it is required if the instruction does not set out the facts constituting the negligence or contributory negligence. Magrane v. Railroad, supra. Plaintiff's numbers 1, 2, and 3 used these terms without submitting the facts constituting the negligence or contributory negligence. (6) The verdict is excessive.
D. A. Murphy and P. H. Cullen for respondent.
(1) No such judicial legislation has been attempted as to lay down the hard and fast rule that the traveler approached a railway crossing is bound under all circumstances to stop as well as to look and listen for approaching trains; but the courts generally agree that whether he ought to stop, in the exercise of ordinary care and caution, is a question for a jury, depending upon the circumstances in each particular case. But in this case the proof is overwhelming that a stop was made. Elliott v. Railroad, 105 Mo.App. 523; Frank v. Transit Co., 99 Mo.App. 323; Huckshold v. Railroad, 90 Mo. 548; Donohue v. Railroad, 91 Mo. 357; Mayes v. Railroad, 71 Mo.App. 142; Petty v. Railroad, 88 Mo. 318; Johnson v. Railroad, 77 Mo. 546; Russell v. Receivers, 70 Mo.App. 88; Baker v. Railroad, 122 Mo. 533; Kelly v. Railroad, 88 Mo. 534; O'Connor v. Railroad, 94 Mo. ___ (2) While the occupant of a vehicle, controlled by another, is not absolved from all care at railway crossings the law does not impose upon the occupant the same degree of care imposed on the driver. The situation of the occupant is different from the situation of the driver. One is active, the other passive. The occupant has a right to presume that neither the company or the driver will be negligent and it is only when the contrary appears that the law imposes upon the occupant active diligence. Stotler v. Railroad, 200 Mo. 107; Howe v. Railroad, 30 L.R.A. 684, 62 Minn. 71; Marsh v. Railroad, 104 Mo.App. 587; Railroad v. Eadie, 43 Ohio 91; Gibson v. Railroad, 83 S.W. 854; Railroad v. Gibson, 91 Tex. 52, 40 S.W. 956; Dyer v. Railroad, 71 N.Y. 228; Crawford v. Railroad, 22 Jones & S. 262; Hoag v. Railroad, 18 N.Y. (N.E.) 648; State v. Railroad, 15 A. 39; Lapsley v. Railroad, 50 F. Rep. 172; Baltimore v. Railroad, 29 A. 518; Railroad v. Steinbrenner (N.J.L.) 54 Am. Rep. 127; O'Toole v. Railroad, 158 Pa. 99, 22 L.R.A. 607. (3) The doctrine of imputable negligence does not obtain in this State, hence the negligence, if any, of the driver cannot be imputed to the child. Stotler v. Railroad, 200 Mo. 107; Sluder v. Transit Co., 189 Mo. 107; Profit v. Railroad, 91 Mo.App. 369; Marsh v. Railroad, 104 Mo.App. 577; Baxter v. Transit Co., 103 Mo.App. 597; Becke v. Railroad, 102 Mo. 544; Munger v. Sedalia, 66 Mo.App. 629; Orourke v. Railroad, 147 Mo. 352; Bailey v. Railroad, 152 Mo. l. c. 462; Johnson v. City of St. Joe, 96 Mo.App. l. c. 671; Keitel v. Cable Co., 28 Mo.App. 657; Duvall v. Railroad, 65 L.R.A. 722. (4) The defendant's criticism of instructions one and two, based upon the proposition that they require the jury to find that the trainmen failed to sound the whistle or to ring the bell is frivolous. The instructions hypothecates no such state of facts. It requires a jury to find that defendant railroad company and its agents and servants failed to ring the bell and the instruction requires the jury to find that the failure to give signal was the direct cause of the accident. The instructions given in this case are identical with the instructions given in the Stotler case and these instructions were expressly approved over exceptions and attack in brief and read in connection with defendant's instruction they could not possibly mislead any jury. Stotler v. Railroad, 200 Mo. 107. (5) The assignments of negligence were not inconsistent and the motion to elect was without merit. White v. Railroad, 202, 539; McCarty v. Rood Hotel Co., 144 Mo. 402; Riska v. Railroad, 180 Mo. 183; Clancy v. Railroad, 192 Mo. 641; Moore v. Railroad, 194 Mo. 13; Moore v. Railroad, 194 Mo. 1; Latson v. Railroad, 192 Mo. 449.
--This is a suit for damages accrued to plaintiff on account of defendant's negligence. Plaintiff recovered and defendant appeals.
Plaintiff was injured through the collision of defendant's locomotive engine with a surrey in which she was riding while in the act of crossing defendant's tracks. The scene of the accident is the crossing of Morris street, a public thoroughfare, within the corporate limits of the city of Mexico and at a point where defendant's tracks are unfenced. To a complete understanding of the case, it will be necessary to mention that both the Chicago & Alton Railroad Co. and the defendant, The Wabash Railroad Co., maintain tracks on their rights of way adjoining through the city of Mexico. Both of these roads pass through that city from east to west and as we infer from the testimony, the right of way of each adjoins the other, especially about the point of collision involved here. Morris street, which is a public thoroughfare of that city, forty feet in width, runs north and south and crosses the tracks of each of these railroads. At the point where plaintiff was injured, the distance between the tracks, that is between the north rail of defendant's track and the south rail of the Chicago & Alton tracks is ninety-nine feet. In constructing the two railroads a considerable quantity of the surface was excavated where each track now rests and an embankment was made with the surplus earth on the strip of land lying between the two roads. This embankment is about nine and one-half feet above the level of Morris street at the highest point between the two railroads and obstructs the view of one passing south on Morris street to the crossing of the Wabash tracks. Furthermore, at the time of plaintiff's injury, which was July 2d, an extensive growth of weeds was upon this embankment and on the south side thereof on the right of way of the Wabash track to within ten feet of its north rail. Some of the witnesses say these weeds were two and one-half feet in height. There is other testimony in the record to the effect that they were as much as six feet in height and it appears they obstructed the view of the railroad to the eastward from plaintiff and her companions in the surrey.
At the time of her injury, plaintiff was a young girl between...
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