Edwards v. Chicago & A. Ry. Co.

Citation67 S.W. 950,94 Mo. App. 36
PartiesEDWARDS v. CHICAGO & A. RY. CO.
Decision Date15 April 1902
CourtCourt of Appeal of Missouri (US)

4. In an action against a railroad company for injuries at a street crossing, the engineer testified that he first saw the traveler when the train was from 100 to 200 feet from the crossing; that he did not look again until within 50 or 70 feet, when he applied the brakes, the train then running 8 or 10 miles an hour; that he could have stopped the train within 75 feet if its speed was 8 miles an hour. Held, that the evidence tended to show that the engineer was negligent in failing to take proper steps to stop the train after discovering the traveler's peril.

5. Where on appeal the abstract of the record does not contain the evidence introduced after the refusal of the court to direct a verdict for defendant at the close of plaintiff's case, the court cannot review such ruling; for, in order to determine its correctness, the whole evidence must be considered.

6. In an action against a railroad company for injuries at a street crossing, it appeared that the flagman was not on guard when the traveler approached; that the latter crossed several tracks of another company without seeing any train, and, when a few feet from defendant's tracks, observed a train coming, but did not know its distance from him, nor its rate of speed; that at the same time the flagman appeared and directed him to hurry across, which he did, almost clearing the track, when the train struck the rear of his wagon. Held, that the traveler was not guilty of contributory negligence, as a matter of law, in obeying the flagman's signal to cross.

7. An instruction that a traveler had the right to rely on the warning of a flagman stationed at a railroad crossing, and that, if the flagman failed to warn him not to cross, the traveler was entitled to recover, though he saw a train near and rapidly approaching, is not objectionable, when other instructions required the jury to find that the traveler was in the exercise of ordinary care, before he could recover, and charged that he could not recover if he knew the train was approaching, and had the same means of judging of the danger as the flagman.

Appeal from circuit court, Audrain county; Elliott M. Hughes, Judge.

Action by J. W. Edwards against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

F. Houston, for appellant. P. H. Cullen and J. S. McIntyn, for respondent.

GOODE, J.

Respondent was injured by a locomotive drawing a train of cars on one of the 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 10 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 railroad 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 8 miles an hour, and there was testimony that the train which hit the respondent was running at a speed of 35 miles an hour. That act constituted negligence on the part of the defendant. Hutchinson v. Railroad Co., 161 Mo. 246, 61 S. W. 635, and cases therein cited.

2. All of 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. Pennsylvania Co. v. Stegeneier, 118 Ind. 305, 20 N. E. 843, 10 Am. St. Rep. 136; Central Trust Co. v. Wabash, St. L. & P. Ry. Co. (C. C.) 27 Fed. 159; Kleiber v. Railroad Co., 107 Mo. 261, 17 S. W. 946, 14 L. R. A. 613; Jennings v. Railroad Co., 112 Mo. 268, 20 S. W. 490; Dickson v. Railroad Co., 104 Mo. 500, 16 S. W. 381; Wilkins v. Railroad Co., 101 Mo. 93, 13 S. W. 893; Whelan v. Railroad Co. (C. C.) 38 Fed. 15; Kissinger v. Railroad Co., 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. Railway Co., L. R. 1 Q. B. 277; Stapley v. Railway Co., L. R. 1 Exch. 21; Railroad Co. v. Clough, 33 Ill. App. 129; Borst v. Railroad Co., 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 100 and 200 feet from the crossing, but did not look at him again until it was within 50 or 75 feet of it, when he applied the brakes to stop the train, which was running 8 or 10 miles an hour, and that he could have stopped it within 75 feet if it was running 8 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 Co., 88 Mo. App. 376; Kellny v. Railroad Co., 101 Mo. 67, 13 S. W. 806, 8 L. R. A. 783. 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. Railway Co. (Mo. App.) 67 S. W. 746. When a...

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