Day v. Missouri, K. & T. Ry. Co.

• Decision Date: 05 October 1908
• Citation: 132 Mo. App. 707,112 S.W. 1019
• Court: Missouri Court of Appeals
• Parties: DAY v. MISSOURI, K. & T. RY. CO.

112 S.W. 1019

132 Mo. App. 707

DAY v. MISSOURI, K. & T. RY. CO.

Kansas City Court of Appeals. Missouri.

October 5, 1908.

1. RAILROADS (§ 350)—ACCIDENTS AT CROSSINGS —ACTIONS — NEGLIGENCE — PROXIMATE CAUSE — QUESTION FOR JURY — STATUTORY PROVISIONS.

Rev. St. 1899, § 1102 (Ann. St. 1906, p. 938), requires operators of locomotives to signal for country road crossings by ringing the bell for a distance of 80 rods from the crossing, or by sounding the whistle at least 80 rods therefrom, and makes the railroad company liable for all damages sustained at the crossing when neither precaution is taken, but provides that the company may show that the failure to signal as required was not the cause of the injury. Held, that neglect to give the signal is made prima facie evidence that the negligence was the direct cause of the injury where a plaintiff is injured by a collision at a public road crossing, but the presumption may be overcome, and, where it appears that the failure to signal was not a producing cause, plaintiff cannot recover by reason of the failure, and, where defendant's evidence, while tending to overthrow the presumption, is opposed by facts adduced by plaintiff showing that failure to signal was the proximate cause, the issue is for the jury.

2. RAILROADS (§ 350)—ACCIDENTS AT CROSSINGS —ACTIONS—QUESTION FOR JURY—PROXIMATE CAUSE.

Whether the failure of those operating a locomotive to signal its approach to a highway crossing was the proximate cause of an injury in a collision with plaintiff's wagon at the crossing held for the jury.

3. RAILROADS (§ 348)—ACCIDENTS AT CROSSINGS —ACTIONS—EVIDENCE.

Evidence held to support a finding that the negligence of a railroad company in failing to keep a highway crossing and approaches covered with six inches of macadam or gravel, as required by Rev. St. 1899, § 1103 (Ann. St. 1906, p. 943), was the proximate cause of an injury resulting from a collision with plaintiff's wagon.

4. RAILROADS (§ 350)—ACCIDENTS AT CROSSINGS —ACTIONS—NEGLIGENCE.

Plaintiff approached a highway railroad crossing at night. The railroad curved, 250 feet from the crossing, and crossed the highway at a tangent. The beaten tracks of the road were sinuous, and the approaches and crossing were not graveled. He stopped, looked, and listened for a train which he knew had not passed, and, receiving no warning, started toward the crossing, when one wheel ran off a culvert into a mud hole, and his team became stalled on the railroad track. He hastily began unhitching, but before he had finished he saw the headlight of a locomotive, which had not signaled, emerge from the curve and abandoned the team, and tried to run out of danger, but was struck by a sack of bran hurled against him when the engine collided with the wagon. Held, that he was not negligent as a matter of law.

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

Personal injury action by T. N. Day against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. P. B. Jackson, for appellant. Scott & Bowker, for respondent.

JOHNSON, J.

This suit is for damages resulting from personal injuries received by plaintiff at a crossing of defendant's railroad and a public highway in Vernon county. Negligence of defendant is pleaded as the direct cause of the injury. The answer is a general denial and a plea of contributory negligence. The trial resulting in a judgment for plaintiff in the sum of $1,975, the cause is here on the appeal of defendant.

The principal contention of defendant is that its demurrer to the evidence should have been sustained for the reasons that the evidence does not accuse it of negligence causing the injury, and does show that the injury was the direct result of plaintiff's own negligence. The crossing where plaintiff's mishap occurred is about three-fourths of a mile west of the town of Clayton, in Vernon county, and perhaps six miles east of Ft. Scott, Kan. Plaintiff, a farmer living near Clayton, drove to Ft. Scott in a low-wheeled farm wagon on August 7, 1906, obtained a load of sacked bran, and started to return home in the evening. The wagon road he traveled runs east and west, and from Ft. Scott east to the crossing in controversy is a short distance south of defendant's railroad, which runs between Ft. Scott and Clayton. Going eastward, the railroad, at a point about 250 feet west of the crossing, curves to the southeast, and runs in that direction on a tangent over the crossing. The public roadway keeps to a straight east and west course where it crosses the railroad, but at the time of the injury the road therein traveled by vehicles—the beaten path—was decidedly sinuous at the crossing and its approaches. Railroad and wagon road were practically on the same level, the former being a little higher than the latter. The crossing was constructed in the manner required by statute, except in the particulars presently to be noted. A small ditch to the west of the railroad track and along the foot of the roadbed was filled at the crossing by a small wooden culvert 20 feet long. The northwest end of this culvert was about six feet from the railroad track, and was so placed that, in going eastward along the traveled road, drivers of vehicles, to avoid having the wheels on the north side run off that end of the culvert into a mud hole, were compelled to make a slight turn to the southeast. After making this turn, the road then turned to the northeast, and continued in that direction over the crossing to a point near the fence on the north side. Then it changed abruptly to the southeast until it reached the middle of the roadway, where it changed to straight east. The last turn described was made necessary by the presence of an embankment of earth, about three feet high, thrown up by defendant, which began at a point in the public roadway about midway between its center and north lines, and extended southeastwardly parallel to the railroad track. Plaintiff approached the crossing at about 10 o'clock at night. He stopped his team, looked and listened for an approaching train, and, receiving no warning that one was coming, started forward to the crossing. It was dark, and in making the first turn he failed to go far enough to the southeast. The front wheels of his wagon passed over the culvert, but the north hind wheel dropped into the mud hole. The off horse fell to his knees, and the team stopped. The horse quickly regained his feet, and plaintiff urged the team forward. They could not move the wagon, and the off horse again fell to his knees. The team stood on the railroad track, and, realizing that he and his property were in a place of danger, plaintiff hastily alighted, and began unhitching. He had detached three of the tugs when the glare from a reflected headlight warned him that a...