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

Decision Date01 May 1916
Docket NumberNo. 11964.,11964.
Citation185 S.W. 1175
PartiesDOYLE v. MISSOURI, K. & T. RY. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

"Not to be officially published."

Suit by Edwin Doyle against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

M. J. Lilly, of Moberly, and J. W. Jamison, of St. Louis, for appellant. A. R. Hammett, of Moberly, for respondent.

TRIMBLE, J.

Plaintiff, a young man not quite of age, was driving a one-horse express delivery wagon east on Carpenter street, in the city of Moberly, and came to defendant's railroad crossing. This consisted of four parallel tracks running north and south and passing over the street at right angles. The west or first track nearest to plaintiff was the transfer track, the next was the main track, the third was the passing track, and the fourth was the business track. As plaintiff's horse started to go upon the third or passing track, it was struck by a freight engine engaged in switching cars. The wagon was overturned, and plaintiff thrown out and injured. He obtained a verdict and judgment in the sum of $1,500.

The petition pleaded negligence in two particulars: (1) The running of the engine in excess of ten miles per hour in violation of a city ordinance fixing that speed as the limit; (2) failure to ring the bell as the train approached the crossing, and to keep the same ringing until the engine had passed over, in violation of a city ordinance and of section 3140, R. S. Mo. 1909. The answer, in addition to a general denial, pleaded contributory negligence on the part of plaintiff in driving in a covered wagon upon said crossing without exercising reasonable care to look or listen for the approach of trains or to otherwise exercise any care to avoid a collision.

Defendant's first contention is that there was not sufficient evidence to justify the trial court in submitting the case to the jury upon either specification of negligence. To properly pass upon this point and dispose of it in a way that may be understood it is necessary to set forth the surroundings at the crossing and to state plaintiff's evidence in some detail.

It was agreed that the pleaded city ordinances were in force; that Carpenter street was a public thoroughfare and was traveled by the public. One of defendant's witnesses testified to the amount of travel at the point in question — "everybody crossing there." There is also no controversy over the fact that plaintiff was driving east, and his horse was struck on the third or passing track as hereinbefore stated. Neither is there any doubt but that the collision occurred somewhere in the neighborhood of 2 o'clock in the afternoon of September 11, 1913. Rain had been falling during the day, and it was wet and misting. The wagon had a covered top which came up on each side of and a little beyond the seat in front on which plaintiff sat with a horse blanket over his knees for a lap robe. There was some evidence on defendant's part that plaintiff had a storm curtain up in front, but plaintiff's evidence contradicts this, and tends to prove that he had only the blanket over his lap.

The Wabash Railroad, running north and south, also crosses Carpenter street with four parallel tracks, the east one of which is 35 feet west of defendant's west track. So that in going east on Carpenter street plaintiff first came to and crossed over the four Wabash tracks, then traversed the 35-foot space between the two railroads, and then entered upon defendant's tracks as hereinbefore described. At the time of the injury there was a temporary stub track between the two sets of tracks north of the street which ran south to within a short distance of the crossing. According to the evidence introduced in plaintiff's behalf, there was a long string of bunk cars standing on this temporary track, the end of said string reaching south to a point about 30 or 40 feet north of the crossing, which seems to have consisted of planks laid crosswise of the street and parallel with the rails; said planks being long enough to reach across the traveled roadway. On the first one of defendant's railway tracks a string of cars extended from a point almost even with the north edge of the wooden crossing north for a distance of about three blocks. The defendant's main track was between this first track and the one on which plaintiff was struck. The first track was therefore from 20 to 23 feet west of the track the train was on. Along the east track of the main line was a depression or drop of 6 or 8 inches running the full width of the street.

Plaintiff testified that as he approached the Wabash tracks and was about 20 feet from them he saw two strings of cars stretching away to the left on the north side of the street, and that he got up from his seat, put his foot on the dashboard, took hold of the wagon top, and looked out both ways to look for trains. He looked across the top of the two strings of cars standing on the tracks as above indicated, which prevented him from seeing what was on the tracks east of them, and concluded there were no trains there, as he could not see any indications or hear any sounds of any. He then sat down on the edge of the seat, leaning forward and looking out both ways for trains. In this manner he drove in a slow walk over the Wabash tracks and came to the defendant's tracks. As he passed the string of cars on defendant's first track and came out from behind them he looked to the north and could see down the track for a distance of 130 or 140 feet, perhaps farther, and saw no train. He knew the passenger train had just passed, and that, if any trains were there at this moment, they would be switching trains which did not run over 8 or 10 miles per hour under the ordinance regulations. Having looked up the track north to a distance which satisfied him there was no danger from a train in that direction, he glanced down south, and then looked at the hole or depression over which he had to drive and to do so carefully not to overturn a barrel of fish he had in his wagon, and then he looked up north again and saw the train close upon him. At that moment, or right immediately thereafter, the engine gave several successive short blasts of the whistle called the "stock alarm." The horse, going in a slow walk, stopped and squatted, then jumped, and as the engine reached him reared and got upon the pilot. The force of the engine carrying the horse on east, the wagon was whipped around to the north and against the side of the engine, causing the wagon to tip over on its side, in which position it was dragged with plaintiff in it until the engine stopped. Plaintiff's ankle was dislocated and pushed over, his leg was broken, the muscles in his leg behind the knee hurt, and his back bruised and hurt. In addition, his forehead was skinned and he received other minor cuts upon his legs and arms.

The challenge that the evidence is insufficient to show negligence is directed, first, to the alleged failure to ring the bell. The contention is that plaintiff's witnesses were not in a position to hear the bell, and therefore the testimony in support of this charge is negative in character, and is entitled to no probative force in the light of the testimony of the trainmen and another witness, a former employé of the road and friend of the trainmen, who swore that the bell was ringing.

It is no doubt true that, where evidence is given by witnesses that they did not hear a certain sound, and it appears that such witnesses were inattentive, deaf, or otherwise so situated as not to raise a reasonable certainty that they would or could have heard it had it been made, such evidence is not sufficient to contradict the positive evidence of other witnesses who were attentive, capable, and in a position to hear that the sound in question was made. McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S. W. 872; Osborn v. Wabash Railway, 179 Mo. App. 245, 166 S. W. 1118; Quinley v. Springfield Traction Co., 180 Mo. App. 287, loc. cit. 296, 165 S. W. 346; Bennett v. Metropolitan Street Ry. Co., 122 Mo. App. 703, 99 S. W. 480. But the question here is whether or not the evidence for plaintiff on this point was of such an indefinite character or from witnesses so circumstanced as that their...

To continue reading

Request your trial
8 cases
  • Perkins v. Kansas City Southern Ry. Co., 29380.
    • United States
    • Missouri Supreme Court
    • April 2, 1932
    ...(b) The deceased had a right and of necessity must have given some attention to getting over the rough places on the crossing. Doyle v. Railroad Co., 185 S.W. 1179. (c) He also had as much reason to expect a train from the northwest and look first for it as he did to expect one from the sou......
  • Herring v. Franklin
    • United States
    • Missouri Supreme Court
    • November 12, 1936
    ...Herrell v. Frisco, 18 S.W.2d 481; Advance Transfer Co. v. Rock Island, 195 S.W. 566; Underwood v. Railroad Co., 168 S.W. 803; Doyle v. M. K. & T., 185 S.W. 1175; R. S. sec. 4756; Hoelzel v. Rock Island, 85 S.W.2d 126; Unrein v. Okla. Hide Co., 224 S.W. 926; O'Connor v. Mo. Pac. Ry. Co., 94 ......
  • Hampton v. Wabash R. Co.
    • United States
    • Missouri Supreme Court
    • September 8, 1947
    ...318 Mo. 123, 300 S.W. 786; Robison v. Chicago & E.I. Ry. Co., 344 Mo. 81, 64 S.W.2d 660, certiorari denied, 291 U.S. 682; Doyle v. M.K. & T. Ry. Co., 185 S.W. 1175; Little v. Manufacturers Ry. Co., 123 S.W.2d Crossno v. Terminal R. Assn., 328 Mo. 826, 41 S.W.2d 796; Connole v. Illinois Cent......
  • Evans v. Atchison, T. & S. F. Ry. Co.
    • United States
    • Missouri Supreme Court
    • September 14, 1939
    ...102; Advance Transfer Co. v. C., R. I. & P. Ry. Co., 195 S.W. 566; Underwood v. St. Louis, etc., Ry. Co., 168 S.W. 803; Doyle v. M., K. & T. Ry. Co., 185 S.W. 1175; Mills v. Mo. Pac. Railroad Co., 94 S.W. 973; Engel v. C., B. & Q. Ry. Co., 195 N.W. 523; Simmons v. La. Ry. Co., 90 So. 24; Ko......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT