Edwards v. Chicago & Alton Railway Company
| Decision Date | 15 April 1902 |
| Citation | 67 S.W. 950,94 Mo.App. 36 |
| Parties | J. W. EDWARDS, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. E. M. Hughes, Judge.
AFFIRMED.
Judgment affirmed.
F Houston for appellant.
(1) It was the duty of respondent to stop, look and listen, before driving on the tracks on which he saw a train rapidly approaching. His testimony shows he looked once when fifty yards from the track on which train was, and did not look again until the train was nearly on him, because, not seeing the flagman, he assumed that it was safe. In Schneider v Railroad, 9 Amer. Neg. Reps., 74-77, the defendant had neglected to maintain either gates or flagmen, but the plaintiff could have seen the train, and neglecting to do so was held guilty of contributory negligence. In Edward's case the train was in full view for from a quarter to a half a mile, but he did not see it and deliberately drove across the tracks immediately in front of it, knowing he was taking chances in so doing. He miscalculated the speed of the train just as Schneider did. Green v. Railroad, 9 Amer. Neg. Reps. 103; Showalter v. Fairbanks & Co., 88 Wis. 376; Hutchinson v. Railroad, 161 Mo. 246; Skipton v. Railroad, 82 Mo.App. 154. (2) Appellant has printed an abstract of the record, containing the petition, answer, reply, bill of exceptions, etc., under these heads for convenience of reference. The whole bill of exceptions is not printed, but only an abstract of such portions as are necessary. Nolan v. Johns, 126 Mo. 159.
P. H. Cullen and J. S. McIntyre for respondent.
(1) When the abstract fails to set forth an abridgment of all the evidence in the cause the court on appeal will not consider an assignment that the verdict is without evidence to support it. Nichols v. Nichols, 39 Mo.App. 293; Goodson v. Railroad, 23 Mo.App. 76; State v. Pace, 33 Mo.App. 458; Glenn v. Weary, 66 Mo.App. 75. (2) The same rule applies where the appellant complains that a peremptory instruction should have been given or was refused. Grocery Co. v. May, 80 Mo.App. 303; Christopher v. White, 42 Mo.App. 428; Johnson v. Carrington, 120 Mo. 316; Bowlin v. Creel, 63 Mo.App. 229; Jayne v. Wine, 58 Mo. 404. (3) The plaintiff did not know and could not discern the rate of speed at which the train was approaching, hence had the right to presume that the train was being run at a lawful rate of speed, and the undisputed evidence shows that if train had been running at the legal rate of speed the collision would not have occurred. This cause comes directly within the rule and the reason of the rule recently so cogently laid down by the Supreme Court. Hutchinson v. Railroad, 161 Mo. 246, and cases there cited; Railroad v. Dunn, 78 Ill. 197; Dolan v. Canal Co., 71 N.Y. 285; Glasburg v. Shorpe, 96 N.Y. 676; Threlkeld v. Railroad, 68 Mo.App. 127; Kleber v. Railroad, 107 Mo. 261; Wilkins v. Railroad, 101 Mo. 93; Jennings v. Railroad, 112 Mo. 268; Gratiot v. Railroad, 116 Mo. 450.
Respondent was injured by a locomotive drawing a train of cars on one of appellant's tracks in the city of Mexico as he was driving a wagon and team over it at a public crossing where there were eight tracks running east and west, four on the south belonging to the Wabash Railway Company, then one transfer track connecting the Wabash and the tracks of the Chicago & Alton Railway Company, then three Chicago & Alton tracks, the middle one of these being the main line and the one on which the respondent's wagon was struck. A watchman had been kept for a long time by the appellant company at that point and a shanty built to shelter him, which was located between the south, or third, Chicago & Alton track and the transfer track and just to the east of the crossing. Said crossing is where Jefferson street, one of the main thoroughfares of the city, intersects the railroad.
The respondent was driving northward early in the afternoon with a load of wood and crossed the four Wabash tracks without noticing a train, seeing the watchman, or receiving any warning. He had proceeded northward until his vision took in the north side of the flagman's house before he noticed a train, when he discovered one coming from the east on the main line, which was then ten feet or more to the north of his team, he testified. At that instant the flagman rushed out of the house and shouted to the respondent to hurry over the tracks; whereupon he lashed his team with the lines and almost succeeded in clearing the middle track, but the engine struck the rear of the wagon or the wood on it, destroying the wagon and injuring the respondent.
The petition accuses the railway company of negligence in four particulars:
First, in running the train which struck the respondent at an unlawful rate of speed; second, the failure of the watchman to give seasonable warning of the train's approach; third, the invitation or direction of the watchman to the respondent to hurry over the tracks when he knew or ought to have known the train was so near as to make that course perilous; fourth, the omission of the engineer and other servants of the appellant in charge of the train to use ordinary care to stop it in time to avoid striking the respondent.
We are of the opinion that evidence was adduced tending to sustain each of the above specifications of negligence.
1. An ordinance of the city of Mexico was introduced which prohibited the running of locomotives or trains inside the corporate limits of that city at a higher rate of speed than eight miles an hour, and there was testimony that the train which hit the respondent was running at a speed of thirty-five miles an hour. That act constituted negligence on the part of the defendant. Hutchinson v. Railroad, 161 Mo. 246, and cases therein cited.
2. All the testimony contained in appellant's abstract of the record goes to show the watchman was not on guard as the respondent approached the crossing, and gave him no signal of danger until he had crossed the four Wabash tracks and was either over, on, or close to, the first of the Chicago & Alton tracks and in a very dangerous position, considering that he was driving a team which was unmanageable when about railroad tracks and trains. The watchman's inattention was negligence to be imputed to the company. Pa. Co. v. Stegemeier Admx., 118 Ind. 305, 20 N.E. 843; Central Trust Co. v. Railroad, 27 F. 159; Kleiber v. Id., 107 Mo. 261; Jennings v. Id., 112 Mo. 268; Dixon v. Id., 104 Mo. 500; Wilkins v. Id., 101 Mo. 93; Wheelan v. Id., 38 F. 15; Kessinger v. Id., 56 N.Y. 538; Dolan v. Canal Co., 71 N.Y. 285.
3. The uncontradicted evidence is that after the respondent was in the position of danger stated, the flagman suddenly appeared and told him to hurry across the tracks, although a train was then approaching at a high rate of speed and so close that it was hazardous to drive on the tracks. That direction to the respondent was negligence for which the appellant is responsible. Lunt v. Railroad, 1 L. R. Q. B. 77; Stapley v. Id., L. R. 1 Exch. 21; Chicago, Rock Island & Pac. R. R. Co. v. Clough, 33 Ill.App. 129; Borst v. Railroad, 4 Hun 346.
4. The engineer, in charge of the locomotive which struck the wagon, testified that he first saw the plaintiff when the engine was between one hundred and two hundred feet from the crossing, but did not look at him again until it was within fifty or seventy-five feet of it when he applied the brakes to stop the train, which was running eight or ten miles an hour, and that he could have stopped it within seventy-five feet if it was running eight miles an hour. This testimony, in connection with the testimony of the plaintiff in regard to the conduct of his team and the fact that they never entirely stopped advancing northward, tended to show a failure on the part of the engineer to take proper measures to stop the train after discovering respondent's peril and thereby avert an accident, which was actionable negligence. Hutchinson v. Railroad, 88 Mo.App. 376; Kellny v. Id., 101 Mo. 67. The engineer probably relied on the flagman to keep the respondent from attempting to cross if there was risk, as did the respondent himself.
5. At the conclusion of the evidence introduced by the plaintiff, the railroad company requested the court to give a peremptory instruction to the jury to return a verdict in its favor, which request was denied, and thereupon it put in proof to support its defenses and plaintiff introduced rebuttal evidence; but none of the evidence introduced by the defendant, or in rebuttal by the plaintiff is contained in the abstract of the record, although it was preserved in the bill of exceptions.
Appellant's abstract makes the following statement in regard to the matter, after the recital of the ruling of the court on the demurrer to the plaintiff's case:
"Thereupon the defendant offered evidence to sustain the issues on its part and plaintiff offered evidence in rebuttal."
On such a showing it is impossible for us to review the entire evidence and decide whether or not an instruction should have been given to the jury to return a verdict in favor of the defendant at the close of the case. We recently passed on this question, which, indeed, has been often passed on by the appellate courts of this State. Clark v. Railroad, 93 Mo.App. 456.
When a defendant, instead of resting on the evidence of a plaintiff puts in his own, his case must stand or fall on the evidence as a whole, and if he wishes it considered by an appellate court in order to determine whether or not the plaintiff was entitled to go to the jury, he must present it in such a way that it can be reviewed. ...
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