Esler v. Wabash R. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Ellison
• Citation: Esler v. Wabash R. Co., 83 S.W. 73, 109 Mo. App. 580 (Mo. App. 1904)
• Decision Date: 07 November 1904
• Parties: ESLER v. WABASH R. CO.<SMALL><SUP>*</SUP></SMALL>

83 S.W. 73

109 Mo. App. 580

ESLER v. WABASH R. CO.^*

Kansas City Court of Appeals. Missouri.

November 7, 1904.

RAILROADS — ACCIDENT AT CROSSING — RELATIVE RIGHTS OF PARTIES — TRIAL — INSTRUCTIONS — APPEAL.

1. A person driving a wagon has the same right over the public highway that a railway has over its tracks, both being bound to exercise care and caution to avoid collision.

2. In an action for injuries caused by being struck by a train at a crossing, an instruction that plaintiff is entitled to recover if he was injured by reason of defendant's negligent failure to give signals, and without fault on his part, is proper, other instructions explaining what would constitute fault on the part of plaintiff.

3. A person slowly approaching a railroad track in a noiseless vehicle need not stop to look and listen.

4. A party cannot complain of error in his own favor.

5. The appellate court will not interfere with the trial court's disposition of a motion for a new trial on conflicting affidavits as to newly discovered evidence.

Appeal from Circuit Court, Chariton County; John P. Butler, Judge.

Action by Fred Esler against the Wabash Railroad Company. There was verdict for plaintiff, and from an order granting a motion for a new trial he appeals. Reversed.

Aubrey R. Hammett, for appellant. George S. Grover, for respondent.

ELLISON, J.

Plaintiff brought this action for personal injuries which he alleges he received by a collision with one of defendant's engines, which was at the time going at a high rate of speed. Plaintiff obtained a favorable verdict, which, on defendant's motion, was set aside, and a new trial granted for error in instructions. Plaintiff appealed.

There was evidence tending to show that plaintiff and his brother were seated in a two-horse farm wagon driving along a public road near Huntsville, approaching a crossing of defendant's railroad track. It was in the evening, but not yet dark. The road was soft from recent rain, and the wagon was not making any noise. As he approached, his view down the track was obstructed first by some sheds, and also by a freight train standing on a side track. Plaintiff looked at points where he could see, and did not discover the approaching train. He listened continuously, and did not hear it. He did not stop, as that would not have aided his hearing, since the wagon was noiseless. As he came out from behind the freight train the defendant's engine, pulling one of its fast trains at great speed, was nearly upon him. He jumped up in the wagon, and began to whip and urge his horses across the tracks. The horses and fore part of the wagon got over, but the engine struck the rear of the wagon, throwing plaintiff a great distance and injuring him.

The record shows that the "motion for new trial is sustained on the ground that the court erred in giving instructions for plaintiff numbers 2 and 4, and in giving defendant's instruction number 4, and is otherwise overruled." Plaintiff's instruction No. 2 was that plaintiff had the same right to pursue his course along the highway and over the crossing that defendant had to run its cars over its track, and that in the exercise of such rights both were bound to use caution and care to avoid collisions, and that if the jury believed that plaintiff was injured in consequence of being struck by defendant's locomotive, without any fault of plaintiff contributing to such injury, and that defendant's servants in charge of the engine failed to ring the bell or sound the whistle in the manner set out and described in other instructions, and that such injury to plaintiff resulted from defendant's failure to so ring the bell or sound the whistle in the manner described in other instructions, the verdict would be for plaintiff. Plaintiff's instruction No. 4 was that if the jury believed that the road upon which plaintiff approached the crossing was soft, and that the wagon was moving slowly and not making any noise, then it was not necessary for plaintiff to have come to a stop before attempting to cross said track, unless by so doing he could have better listened or looked for the...