Dudley v. Wabash R. Co.

• Decision Date: 08 October 1912
• Citation: 167 Mo. App. 647,150 S.W. 737
• Parties: DUDLEY v. WABASH R. CO.
• Court: Missouri Court of Appeals

150 S.W. 737

167 Mo. A. 647

DUDLEY v. WABASH R. CO.

St. Louis Court of Appeals. Missouri.

October 8, 1912.

Rehearing Denied November 12, 1912.

1. RAILROADS (§ 313)—CROSSING ACCIDENT— NEGLIGENCE.

Where a railroad train approached the crossing at which plaintiff's minor daughter was struck and killed without giving the statutory signals by bell or whistle, the railroad company was chargeable with actionable negligence.

2. RAILROADS (§ 350)—CROSSING ACCIDENT —DEATH OF CHILDREN—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In an action for death of plaintiff's child while crossing defendant's railroad track in company with plaintiff in a wagon drawn by a team which plaintiff was driving, evidence held to require submission of plaintiff's contributory negligence to the jury.

3. EVIDENCE (§ 2650) — ADMISSIONS — COCLUSIVENESS.

Where, in an action for death of plaintiff's child in a railroad crossing accident, defendant offered evidence that immediately after the accident plaintiff admitted that he saw the train approaching, but thought he could cross ahead of it, plaintiff's failure to deny or explain such alleged admission was not conclusive of the fact, so as to require a finding that plaintiff was negligent as a matter of law.

4. RAILROADS (§ 346)—CROSSING ACCIDENT —CONTRIBUTORY NEGLIGENCE—NOISE.

In an action for death at a railroad crossing, though the court may, take judicial notice of the fact that a train approaching the crossing makes a noise, yet, in the absence of proof that the statutory signals of the approach of the train were given, it must be established, in order to convict plaintiff of contributory negligence in not heeding a noise, not only that the train made a noise, but that the circumstances were not such as to prevent plaintiff from hearing it, or to excuse him for not hearing it.

5. RAILROADS (§, 35)—CROSSING ACCIDENT— CONTRIBUTORY NEGLIGENCE — CARE RQUIRED.

Where, in an action for death of plaintiff's daughter in a collision at a railroad crossing on a dark night, it appeared that plaintiff was unfamiliar with the crossing, never having traveled the road before, it could not be said as a matter of law that he was negligent in failing to know that his view of the crossing was obstructed, and in failing to stop and make a more careful observation.

6. DEATH (§ 75)—MINOR CHILD—RIGHT TO SUE.

Where plaintiff sued for death of his minor daughter, aged 12½ years, at a railroad crossing, and it appeared that deceased was referred to by counsel for both parties as plaintiff's daughter, "Eunice Dudley," while counsel uniformly addressed other witnesses, who were married women, by their title of "Mrs.," but it appeared that the child lived with the father, it was sufficiently proven and conceded that she was unmarried, and that she left no husband or minor child or children surviving her, so as to entitle her father to sue.

7. TRIAL (§ 96)—RECEPTION OF EVIDENCE— MOTION TO STRIKE.

Where the testimony of a witness was at least competent in part, a motion to"strike out all of the evidence, not specifying the objectionable part, was properly overruled.

8. EVIDENCE (§ 194)—DEMONSTRATIVE EVIDENCE—GRASS AND WEEDS.

Where, in an action for death in a railroad crossing accident, it was claimed that the view of the train was obstructed by grass and weeds growing on the right of way, and weeds and grass taken from the place and tied into bundles were properly identified, it was proper to admit them in evidence over an objection that they were not in the same condition as when they were standing on the ground; their difference in appearance being for the jury in determining the weight to be given to them.

9. TRIAL (§256)—INSTRUCTIONS—DAMAGES—, FAILURE TO CHARGE.

Where, in an action for death at a railroad crossing, the court correctly charged that, in case the jury found for plaintiff, their verdict should be in a sum not less than $2,000 nor exceeding $10,000, which confined the jury to the statutory limits, the court's failure to charge that the jury should arrive at the amount of their, verdict by the exercise of a sound discretion, giving consideration to the extent of the injury, was mere nondirection, for which the court could not be, convicted of error, in the absence of a request by defendant that the omission be supplied.

Appeal from Circuit Court, Audrain County; J. D. Barnett, Judge.

Action by W. R. `Dudley against the Wabash Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 238 Mo. 184, 142 S. W. 338.

This is an action by the plaintiff against the defendant under section 2864, R. S. 1899, as amended (Laws 1905, p. 135), for damages on account of the death of plaintiff's daughter, Eunice Dudley, who, while riding in an ordinary open buggy with plaintiff, was struck upon a much-traveled public road crossing in the western part of Martinsburg, Mo., by one of defendant's east-bound freight trains. Plaintiff had verdict and judgment for $2,500, and the defendant has appealed.

The allegation of negligence upon which the case went to the jury is that defendant failed to give the statutory signals by bell or whistle while approaching the crossing. The answer contained, first, a general denial, and then a plea that plaintiff was guilty of contributory negligence in driving upon a public crossing in front of defendant's train, when he saw and heard, or could by the exercise of ordinary care have seen and heard, said train in time to have remained off of said track and in a place of safety with his daughter. There was ample evidence that defendant failed to give the statutory signals as charged. The question is whether the state of the evidence is such as to convict plaintiff of contributory negligence as matter of law. The defendant's right of way runs approximately east and west through Martinsburg. Approaching the town from the west, and coming toward the "North Road," where the plaintiff's daughter was killed, the railroad track slopes downhill to a point about 2,000 feet from, and 8 feet lower than, said North Road. It then runs up an incline for said 2,000 feet to said road, which, as already mentioned, is 8 feet higher than the foot of the incline. Nearing the road it runs through a "cut" for about 400 feet, then out of the cut, while crossing a little "swag" in the ground surface, and then approaches the North Road in and through another cut, which is about 400 feet long, and has embankments on either side, which are each about 4 feet high above the rails. On the south side, or the side from which plaintiff approached the railroad track, the top of the embankment is about 15 feet from the south rail, though it slopes from there toward the track. Such embankment extends west along the railroad track about 400 feet. The northern 6 or 8 feet of the top of the embankment is the highest, being there about 4 feet high on account of the earth thrown up from the cut. From thence south the natural ground is at least 3 feet higher than the rails, and gradually declines "a little bit, not much," toward the south, falling a foot or two in 300 feet. Such embankment comes east to within 30 feet of where a wagon would travel along the North Road. This eastern end of the embankment is in the neighborhood of 4 feet above the North Road at its northern edge, and gets slightly lower, perhaps within 3 feet, as it extends back southwardly. Peyton's drug store is on the southeast corner of First and Washington streets, in the eastern part of the town, and about 375 feet south of the railroad track. Washington street runs parallel to the railroad track. The way from Peyton's drug store to the "North Road" crossing, at which plaintiff's daughter was killed, ran west along Washington street about 1,000 feet, to and across a little culvert, and then diagonally, northwest and uphill, about 500 feet, along a traveled road to the North Road, and along it north about 100 feet. At the crossing, on the west or left side of the North Road, is a cattle guard, from which a plank fence 4 feet high runs some 20 feet south and up on the embankment. At the time when plaintiff's daughter was killed, behind this fence, on the northern slant of the embankment, and on top of the embankment and higher ground for a considerable distance west, was a growth of resin weeds and prairie grass. According to plaintiff's witnesses, this growth was dense and high-6 to 8 feet high, above the embankment and higher ground— and effectually obstructed the view to the west along the track as one approached from the east and south along the way we have described. As one started up the incline from the culvert and looked northwest, he could just see the tops of the telegraph poles along the right of way, even after the weeds and grass had been cut off.

On August 7, 1909, plaintiff, a widower, and his two children, Zella and Eunice, spent the day at a picnic in New Florence, Mo. He and his said children lived together with Lute Diggs, a farmer, from whose farm they had come into Martinsburg that morning over the North Road, and taken the train from Martinsburg to New Florence, putting up the buggy and team at the livery barn in Martinsburg. About 9 o'clock that night, the two girls waited at Peyton's drug store while he went and got the rig. From Peyton's drug store, going home by way of the North crossing, they followed the way we have traced above; that is, they went west along Washington street until they came to and crossed the little culvert, and then took the diagonal road to the North Road, and thence north down towards the railroad crossing. The plaintiff was driving. Zella, who was 15 years old, was sitting beside him, with the little girl, Eunice, who was only 12½ years old, sitting on her lap. The buggy had no top to it. The ponies were going at a little trot. Both plaintiff and his daughter Zella testified that as they vent along from Peyton's drug store they did not see the headlight of the...