Davidson v. St. Louis & S. F. R. Co.

Decision Date03 June 1912
Citation148 S.W. 406,164 Mo. App. 701
CourtMissouri Court of Appeals
PartiesDAVIDSON v. ST. LOUIS & S. F. R. CO.

In an action against a railroad company for injuries received by plaintiff owing to the running off of his team, which was scared by a railroad train, plaintiff testified that he would have been unable to have held his horses if he had not crossed in front of the train, and that he could not turn around because of a ditch. The court charged that if plaintiff could not with safety have turned around and escaped, and if he was in the exercise of due care, he should recover, that if at any time before he attempted to cross in front of the train he could have, by looking and listening, heard the same, then verdict should be for the defendant, and that, despite the statutory duty of the railroad company to sound its whistle or ring its bell, plaintiff could not recover in case he did not exercise ordinary care. Held, that the error, in the first instruction, in assuming that plaintiff could not have turned his team around, was not prejudicial owing to the other instructions.

Gray, J., dissenting.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by Henry J. Davidson against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and Mann, Johnson & Todd, of Springfield, for appellant. Edwin L. Moore, of Lamar, for respondent.

NIXON, P. J.

On March 18, 1910, after sundown and about dusk, respondent was driving a team hitched to a buggy on a public highway in Jasper county where the same crossed the track of appellant's railroad, and his team became frightened at appellant's freight train and ran away, and he was permanently injured. He instituted this suit for damages, alleging that the agents and servants of the appellant in charge of the train failed to give any statutory signals for the crossing, and also that they negligently and carelessly permitted an unusual amount of steam to escape from the engine on such highway, thereby frightening plaintiff's team. The suit was instituted in the circuit court of Barton county, and was there tried before a jury on the 11th day of April, 1911, resulting in a verdict in favor of the plaintiff for $5,000. A motion for a new trial was filed and overruled, and the company appealed to this court.

It appears from the evidence that plaintiff was driving north on the public road which runs north and south, and that the railroad track runs southeast and northwest intersecting the public road at an acute angle. Plaintiff was driving two ponies to a single buggy. With him in the buggy was a young man named Shelton, who was leading five head of mules belonging to plaintiff. The plaintiff was coming from the south and the train from the southeast. On the east side of the public road was a peach orchard. The plaintiff with his team and the mules passed over the railroad crossing, but the animals then became frightened at the train, and the team ran away, and plaintiff was thrown out of the buggy and seriously injured; one of his legs having to be amputated.

The plaintiff testified that he had crossed the railroad at this crossing eight different times during the fall and winter preceding the time he was injured and that no signals were given for the crossing. He also stated that steam was escaping from the engine at the time it passed the crossing on the day of the accident. The defendant offered no testimony tending to contradict the above facts, and offered no evidence of any of its employés in charge of the train or otherwise that it gave the proper statutory signals when approaching the crossing, and therefore they may be conceded for the purposes of this appeal as being true.

The plaintiff testified at the trial that his mules were not accustomed to trains, and knowing of the public crossing, he was on the lookout for approaching trains; that he was driving about three miles an hour, in a slow trot; and that he both looked and listened for an approaching train after he passed the corner of the orchard, and neither saw the train nor heard any signal; that the orchard comes to a V-shape, the point of the V being made towards the crossing by the public road on one side and the railroad on the other; that traveling on the public road, when he had passed the last tree in the orchard, the railroad track would be about 25 or 30 feet from him; that he could not see a train approaching the crossing from the southeast because the railroad comes up out of a valley and trains come through a dirt cut which is grown up with weeds, brush, and "stuff"; that you cannot see back southeast until you get on the railroad track; that until you get within 10 feet of the crossing you positively cannot see a train coming because the weeds, grass, and "stuff" will hide it from view; that it is impossible to see the railroad when you pass the last tree in the orchard going towards the crossing because of the cut and of the grass growing on the sides of the same; that you will get within 10 feet of the crossing—or from 220 to 230 feet from the point where you pass the last tree—before you can see; that the cut is not so very deep; but that you have to get where you can look through that cut; and that the weeds and grass growing on the bank prevent you from seeing. He testified that he saw the train when he was about 30 feet from the crossing and 8 or 10 feet from the track, but that there was a ditch on the west side of the public road which prevented him from turning around, and that he therefore hurried his animals over the track and succeeded in getting across and about 30 feet north of the track as the engine passed and frightened his team, causing the damages aforesaid.

Appellant's principal assignment of error is that the court erred in refusing to sustain its demurrer at the close of all the evidence in the case.

As above stated, the respondent testified that he both looked and listened for an approaching train; that the statutory signals were not given; and that he did not hear the train and could not see it because the weeds and brush and "stuff" growing on the bank between him and the railroad track obstructed his view.

Section 3140, R. S....

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