Crossin v. Chicago Great Western Ry. Co.

• Decision Date: 22 November 1915
• Docket Number: No. 11714.,11714.
• Citation: 180 S.W. 454
• Parties: CROSSIN v. CHICAGO GREAT WESTERN RY. CO.
• Court: Missouri Court of Appeals

180 S.W. 454

CROSSIN v. CHICAGO GREAT WESTERN RY. CO.

No. 11714.

Kansas City Court of Appeals, Missouri.

November 22, 1915.

Appeal from Circuit Court, Buchanan County; William H. Haynes, Judge.

"Not to be officially published."

Action by Alexander Crossin against the Chicago Great Western Railway Company. Verdict for defendant, and from an order granting new trial on plaintiff's motion, defendant appeals. Affirmed.

R. A. Brown, of St. Joseph, for appellant. J. E. Dolman and 0. E. Shultz, both of St. Joseph, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury he claims was inflicted upon him through the negligence of defendant's engineer in running one of its trains through the streets of St. Joseph. There was a verdict for defendant, which was afterwards set aside and a new trial granted on plaintiff's motion. Defendant appealed from that order.

The trial court gave as a reason for granting a new trial that it had erred in the instructions given for defendant. In this view we think the court was right. Plaintiff, an old man, was sitting in a one-horse vehicle, driving along a street in St. Joseph, when presently he came to the railway ay crossing. In attempting to cross he got upon the track and was struck by defendant's train. Defendant maintained a gong at this crossing for the purpose of warning persons of danger from approaching trains, but in the present instance it was not sounded. Plaintiff testified that he looked and listened, and neither saw nor heard a train, nor any signal from the train; that when he got upon the track there came out suddenly from behind standing cars the train which struck him.

Defendant insists that its answer contained a plea of contributory negligence, while plaintiff says it did not. Accepting defendant's view of the pleading, it serves to demonstrate the correctness of the trial court's ruling that it erred in giving instructions for defendant. The answer states two specific acts as constituting the contributory negligence pleaded in defense: One, "in driving immediately in front of one of the approaching trains of defendant," making it impossible to stop the train in time to avoid striking him; the other, that "plaintiff failed to look or listen for an approaching train." Instruction No. 2, for defendant submitted plaintiff's duty to look and listen, and that if he "failed to look or listen, or that he in any way failed to exercise ordinary care to look out for his own safety," then h...