Damrill v. St. Louis & S. F. Ry. Co.

• Decision Date: 14 June 1887
• Citation: 27 Mo.App. 202
• Parties: STEPHEN DAMRILL, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

27 Mo.App. 202

STEPHEN DAMRILL, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

June 14, 1887

APPEAL from the Greene County Circuit Court, JAMES R. VAUGHAN Judge.

Reversed.

JOHN O'DAY and E. D. KENNA, for the appellant.

OPINION

LEWIS P. J.

The plaintiff sued, before a justice of the peace, for damages caused by the defendant's engine running over a wagon team of mules, and set of harness, of the value of one hundred and fifty dollars. In the circuit court, on appeal it appeared that, at the place where the injury occurred, the railroad and a public highway crossed each other at right angles, the railroad running north and south and the highway east and west. A locomotive and tender were running from north to south, while the plaintiff's wagon, driven by George Ketney, was approaching the track from the east. A few extracts from the testimony will best show how the case was put to the jury.

Ketney testified: " I had been driving in a trot, and when I came close to the railroad, I slacked down to an ordinary walk. * * * As I came down to the crossing, I looked off from my right hand, and heard no noise. * * * I looked to see if there was any train coming, and did not see any. I listened to hear, and did not hear any. I heard no bell nor whistle rung. There was nothing attached to the engine but a tender. As near as I can now tell, the engine was running like lightning. The first I discovered there was an engine was when I heard the ringing of the track, when I came up to it--by which I mean the ringing sound on the iron. As the mules' feet went onto the track, I looked over my shoulder, and the engine was right onto me--the engine was ten steps away. I instantly pulled back the lines, and pulled the mules to the left, when the engine struck us. * * * It was a bright day, and was not raining. The wind was blowing very hard, from the south to the north. The railroad, at this point, is straight for from a quarter to a half a mile. The farms adjoining it and the wagon-road are prairie farms. I did not, at any time before reaching the crossing, stop still. I changed the gait of the team from a trot to a walk, but did not stop still. After I got upon the railroad, there was nothing to prevent my seeing down the track, in the direction from which the train came, for a quarter of a mile. I was about the length of the mules and wagon east of the track when I looked off to the right, as I stated in my direct examination, and I will swear positively that I quit trotting and looked for the train when I was that distance from the track. I did not at any time stop still."

Jerry Youngblood, who was riding in the wagon with Ketney, testified: " Just as the mule got on the track, the engine ran against him and killed him. * * * I saw the engine first when it was fifty or sixty feet away from us. No whistle was sounded, or bell rung; or at least I never heard any. After I saw the engine, they gave the whistle two little jerks; this was about a quarter of a minute or less, before we were struck. The train was running fast. The first I saw of the train was just as the mules struck the track. Standing on the crossing, one can see a train a quarter of a mile away, as it approaches. From the direction from which this train came, there is a hollow. The track is perfectly straight for from a quarter to a half mile. The wagonroad, as we approach the railroad, slanted down towards the latter. He [Ketney] did not at any time, before going on the crossing, stop the team. * * * There were no houses, or trees, or buildings of any kind, on the north side of the wagon-road. There was some wheat on the north side of the track."

The plaintiff testified: " A man can see an engine on the track one hundred and fifty yards north of the crossing, when he arrives at a point on the wagon-road the same distance east of it. After he arrives within one hundred and fifty yards of the crossing, there is nothing to prevent him seeing one hundred and fifty yards north of it, until he reaches the crossing. * * * The first cut is about two hundred yards north of the road-crossing, and between this cut and the railroad-crossing there is a dump or fill. * * * The right of way is one hundred feet wide. It is fenced, and...