Dudley v. Wabash Railroad Co.
| Decision Date | 08 October 1912 |
| Citation | 150 S.W. 737,167 Mo.App. 647 |
| Parties | W. R. DUDLEY, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
AFFIRMED.
STATEMENT.--This is an action by the plaintiff against the defendant under section 2864, Revised Statutes 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 muchtraveled public road crossing in the western part of Martinsburg, Missouri, by one of defendant's eastbound freight trains. Plaintiff had verdict and judgment for $ 2500 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 down hill to a point about 2000 feet from, and eight feet lower than, said North Road. It then runs up an incline for said 2000 feet to said road, which as already mentioned is eight 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 four 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 fifteen 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 six or eight feet of the top of the embankment is the highest, being there about four feet high on account of the earth thrown up from the cut. From thence south the natural ground is at least three 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 thirty feet of where a wagon would travel along the North Road. This eastern end of the embankment is in the neighborhood of four feet above the North Road at its northern edge and gets slightly lower, perhaps within three 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 1000 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 four feet high runs some twenty 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, six to eight 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, Missouri. 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 had taken the train from Martinsburg to New Florence, putting up the buggy and team at the livery barn in Martinsburg. About 9:00 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 fifteen years old, was sitting beside him with the little girl, Eunice, who was only twelve and a half 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 went along from Peyton's drug store they did not see the headlight of the train coming from the west although they were looking in a generally westward direction all the time until they turned north to go over the crossing. They were corroborated in this by one Erret Oliver who followed after them and had reached the culvert about the time when the collision occurred. He testified that he did not see any light from the engine. As they got near the crossing, Zella called plaintiff's attention to the fact that they were approaching the railroad track and each of them testified that thereafter, until they got right on the track, they kept looking first one way and then another for signs of an approaching train and saw nothing. We may say that the plaintiff was not familiar with Martinsburg and its surroundings, having come in over the North Road across the railroad track that morning for the first time. The team went at a slow trot until they got right at the track and plaintiff checked them up a little as they came to it. The team was on the track and the wheels of the buggy just about at the south rail when he first saw the headlight which seemed to be not more than twenty or thirty feet west of the crossing. Seeing it, he reached for the buggy whip, thinking he would try to get across. The engine struck the buggy about that time. The little girl, Eunice, was killed. Zella was severely injured.
One of plaintiff's witnesses, Lute Diggs, made an observation approaching the track in a buggy like the one in which plaintiff's daughter was killed, and he testified that he had to drive to a point where the horses' heads were on the south rail before he could see up the track any distance at all and then he could see only thirty to forty feet. Dr. Divan testified that shortly before this collision he had had his attention called to the condition of the crossing as to whether or not he could observe trains coming from the west, as follows: He approached the crossing going north in an automobile as a train came from the west and, though he was looking for the train all the time, he got within ten or fifteen feet, "right on the track," before he observed the engine; got so close he could not stop and went on across. At that time the train was probably 100 yards away. He was going five or six miles an hour. Two other witnesses for plaintiff made observations in an automobile, approaching the crossing along the way we have described. One testified that he could not see an engine up the track to the west until he got within sixteen or eighteen feet of the south rail, and then he could see only sixty or eighty feet up the track. The other testified that he had to get within eighteen or twenty feet of the south rail before he could see an engine and not then unless it was within seventy-five or eighty feet of the crossing. Just where the train with which plaintiff collided was when he was within sixteen to twenty feet of the track is not disclosed. It does appear, however, that the train approached the crossing at a speed variously estimated at from thirty to fifty-five miles an hour, while plaintiff approached it at a slow trot; also that though the plaintiff and his daughter, and Maxey and his daughter, two of defendant's witnesses whom we will mention further, were looking for it, none of them saw the headlight until their horses were upon the track.
On behalf of defendant several witnesses testified that they saw the headlight of the engine as they looked toward the west but none of them were in a position to have their view obstructed as was the plaintiff, except Watkins, who testified that he made an observation from the road as it approached the crossing and found that a headlight would show through the weeds and grass. He had worked for the defendant twenty-eight years, and at the time of the trial had three sons working for it. Two other witnesses, William Maxey and daughter, testified that they drove toward the crossing that night along the way we have traced, immediately in front of the plaintiff's...
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