Crumpley v. Hannibal & St. J. R. Co.

• Citation: 19 S.W. 820,111 Mo. 152
• Court: Missouri Supreme Court
• Decision Date: 31 May 1892
• Parties: CRUMPLEY v. HANNIBAL & ST. J. R. CO.

19 S.W. 820

111 Mo. 152

CRUMPLEY v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri, Division No. 2.

May 31, 1892.

RAILROAD COMPANIES — ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE.

1. Under Rev. St. 1889, § 2608, making railways liable for injuries caused by failure to ring a bell or sound a whistle at a public crossing, but allowing them to show that the failure so to do did not cause the injury, in the absence of such signals the burden of proof as to the cause of the injury is on the company.

2. Contributory negligence is an affirmative defense, which the party alleging it must prove.

3. A person crossing a railroad has a right to assume that the statutory signals will be given, and so act.

Appeal from circuit court, Nodaway county; C. A. ANTHONY, Judge.

Action by Victoria Crumpley against the Hannibal & St. Joseph Railroad Company to recover the statutory penalty for the death of her husband. Judgment for plaintiff, and defendant appeals. Affirmed.

Spencer, Burnes & Mosman, for appellant. Jas. W. Boyd, for respondent.

THOMAS, J.

This action was brought to recover the statutory penalty of $5,000 for the death of plaintiff's husband, caused, as she alleges in her petition, by the negligence of the operatives of a train of defendant, in failing to give the signal of bell or whistle as it approached the crossing where he was killed. This is the second appeal. The judgment was reversed on a former appeal for reasons given in the opinion of this court, reported in 98 Mo. 34, 11 S. W. Rep. 244. On the second trial the verdict was for the plaintiff on the issue of the failure to ring the bell or sound the whistle alone, and hence the issue in regard to the defectiveness of the crossing, with its incidents, is eliminated from the questions presented for our consideration at this time.

Plaintiff's husband, Samuel Crumpley, was killed at what is known as the "Oak Hill Crossing" of defendant's railway, about a mile and a half east of the city of St. Joseph, on the 18th day of July, 1885, at about 50 minutes after 6 o'clock in the evening. A public road, running north and south, crosses the railroad track at right angles at Oak Hill. Another road, leading east from the city of St. Joseph, runs parallel with, and a little over 50 feet from, the railroad track for about a mile before reaching the crossing in question. The railroad right of way is fenced, and this road runs along outside of the fence, and close to it. The point of intersection of this east and west road with the one running north and south is about 50 feet north of the track at the Oak Hill crossing. From this point of intersection to the railroad track is an elevation, variously estimated by the witnesses from 8 to 12 feet; the last 20 feet of the distance before reaching the track being quite steep. The railroad here runs east and west, and east of the crossing there was a cut of 18 feet at its maximum depth, the cut beginning only a short distance east of the crossing. At the crossing and west of it there was a fill. East of the north and south dirt road, and adjacent to it, and north of the railroad, inside of the right of way, there were weeds and brush 10 or 12 feet high at the time of the collision. There was also a fence running to the track. The deceased had been to St. Joseph the day he was killed, with a load of corn. He bought some things, and started home in a farm wagon, driving along the said east and west road, and when he reached the crossing, and while on it, a passenger train coming from the east, at the rate of 30 miles an hour, struck and killed him. There was no evidence whatever as to what he did before attempting to cross. The testimony was conflicting as to whether the bell of the engine was rung or the whistle sounded as the train approached this crossing. The evidence on the part of plaintiff was that neither one of these signals was given, while that on the part of defendant shows that both were given. The evidence was also conflicting as to the distance a train could be seen on the approach from the north to the Oak Hill crossing, many witnesses stating that no train could be seen till the track was reached, and then only for a distance of 60 or 70 yards, due to a curve in the road; others stating a train could be seen 400 or 500 feet away, when standing at the track or near it, and from 230 to 300 feet when from 12 to 28 feet from the track. On this point the engineer in charge of the train testified that he was 260 or 270 feet from Crumpley when he saw him, and then he was just in the act of going on the track, the curve in the road preventing him from seeing him sooner. The statement of the engineer is probably as accurate as any that could be made in regard to the distance a train could be seen on the approach to the crossing at the time of the accident, and under the conditions then existing, the observations of some of the other witnesses having been made long afterwards.

1. The court refused to direct a nonsuit, and in this we think it committed no error. There was ample evidence on the part of the plaintiff that none of the statutory signals were given on the approach of the train to this crossing. Section 2608, Rev. St. 1889,¹ first enacted, as it now exists, in 1881, (Sess. Acts 1881, p. 79,) makes railway corporations liable for all damages which any person may sustain at a public crossing, by failing to ring a bell or sound a whistle on approaching it, but permits these corporations to show that the failure to ring the bell or sound the whistle is not the cause of the injury. This statute shifts the burden of proof to the corporations as to the cause of the injury when it appears the statutory signals are not given. The rule, however, in regard to the...