Elliott v. Chicago & A. Ry. Co.

• Decision Date: 12 April 1904
• Citation: 80 S.W. 270,105 Mo. App. 523
• Court: Missouri Court of Appeals
• Parties: ELLIOTT v. CHICAGO & A. RY. CO.

80 S.W. 270

105 Mo. App. 523

ELLIOTT v. CHICAGO & A. RY. CO.

St. Louis Court of Appeals. Missouri.

April 12, 1904.

RAILROADS — CROSSING ACCIDENT — DUTY OF PLAINTIFF — QUESTION FOR JURY.

1. In an action against a railroad for injuries to plaintiff and his property as he was attempting to drive over a railroad crossing, where it appeared that he could not have seen the engine from his position in the wagon, on account of obstructions, the question whether he should have stopped his team, alighted from the wagon, and gone on foot to the crossing, to a point where he could have looked down the main track, and there have seen the engine approaching, held, under the evidence, to be one for the jury.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

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

F. Houston, for appellant. P. H. Cullen, for respondent.

BLAND, P. J.

Main street, in the town of Farber, Audrain county, Mo., runs north and south. The tracks of the defendant railroad company run east and west through said town, and cross Main street at right angles. South of the track at the crossing of Main street, and 8½ feet from the main track, is a side track. A 16-foot crossing, constructed of planks, was laid over these tracks to form a crossing on Main street. On the morning of November 11, 1902, plaintiff, a farmer living north of Farber, brought a two-horse wagon load of corn into town, drove along Main street, crossed over the tracks, and unloaded his corn in a crib a short distance south of the tracks. He then started back to his home, driving north on Main street. When he reached the crossing, an engine and tender backing west on the main track collided with his team, killed his two horses, smashed his wagon, and threw him to the ground, doing him some injury — not, however, of a permanent character. The suit was to recover the damages caused by the collision. The negligence of the defendant, upon which plaintiff predicated his right to recover, was that defendant negligently ran its engine at a rapid rate of speed over the crossing, failed to keep a lookout for persons on the crossing, and failed to sound the locomotive whistle as it approached the crossing, or to ring the bell and keep the same ringing until the crossing was passed, and negligently failed to give any signal or warning whatever of the approach of the engine. The answer was a general denial and a plea of contributory negligence. The trial resulted in a verdict and judgment in plaintiff's favor for $1,500. Defendant appealed.

At the close of plaintiff's evidence, and again at the close of all the evidence, defendant asked peremptory instructions to be given to the jury to find for it. The court refused to give these instructions. The ruling of the court on these instructions is the only error relied upon by defendant for a reversal of the judgment.

The contention is that plaintiff's own admissions as a witness, as well as the whole evidence, show that plaintiff, as a matter of law, was guilty of negligence that directly contributed to his injury, and for this reason he cannot recover. It is conceded that plaintiff's view to the east, as well as to the west, as he approached the crossing on Main street, was obstructed by cars standing on the side track, and by an elevator standing east of him near the track, and that he could not have seen the engine for at least a half a mile by looking toward the east, without first placing himself north of the side track, on account of these obstructions. It is also shown that cars standing on the side track were so near the crossing on Main street that a space of not more than 12 or 14 feet was open at the crossing for the passage of teams. The plaintiff's own evidence shows that, without stopping, he drove upon the crossing; that when he cleared the side track, and when his horses were on the main track, he could then look east down the track, and did look, and saw the engine was upon him. He testified that before driving upon the track he listened for a train, but heard none; that he heard no whistle blowing or bell sounding; that when he drove into town he saw an engine at the depot (west of the crossing), and while he was unloading his load of corn at the crib he heard a train going by, and thought the train had pulled out and gone on east. He further testified that by stopping his team before going on the crossing, and getting out and walking past the side track, he could have seen down the track to the east for a mile or more. It is shown that the grade of the track to the west was slightly descending, and that the engine at the time of the collision was running without exhausting steam, and was making scarcely any noise. There was a corn sheller in operation near by, on the south side of the track, that was making considerable noise. For the plaintiff a number of witnesses, in a position to hear, testified that they did not hear the engine whistle, and that the bell was not rung until after the engine struck plaintiff's wagon, and that the speed of the engine was from 20 to 30 miles per hour. For defendant the evidence is that the whistle was blown three times, 80 rods west of the crossing; that the bell had an automatic ringer, and that it was put in operation and the bell sounded continuously until the crossing was passed; and that the engine was moving at a speed of from 15 to 20 miles per hour.

It is conceded that, when the wagon came into view of the engineer, the engine was so close to the wagon that it was impossible to stop it in time to avoid the collision. The evidence on the part of plaintiff tends to show that defendant's engineer was guilty of negligence in failing to sound the whistle or ring the bell of the engine in the manner required by statute (section 1102, Rev. St. 1899) as he approached the crossing. On account of this negligence, plaintiff was entitled to have his case submitted to the jury, unless his admissions, or the whole of the evidence, show that he was, as a matter of law, guilty of negligence directly contributing to his injury.

It is insisted that the evidence of Tribue, White, Shotwell, and Machem, witnesses for plaintiff, taken in connection with the evidence of plaintiff, shows conclusively that, if plaintiff had stopped and listened, he could have heard the engine and tender as they were backing toward the...