Farris v. St. Louis & S. F. R. Co.

• Decision Date: 23 December 1912
• Citation: 151 S.W. 979,167 Mo. App. 392
• Court: Missouri Court of Appeals
• Parties: FARRIS v. ST. LOUIS & S. F. R. CO.

151 S.W. 979

167 Mo. A. 392

FARRIS v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

December 23, 1912.

Rehearing Denied December 23, 1912.

1. RAILROADS (§ 327)—CROSSING ACCIDENTS —DUTY TO LOOK AND LISTEN.

The duty to look and listen for approaching trains, including the obligation to see and hear, before attempting to cross a highway crossing, is absolute; failure to do so, if there be opportunity, being negligence.

2. RAILROADS (§ 327)—CROSSING ACCIDENTS —DUTY TO LOOK AND LISTEN.

The duty to look and listen before crossing a highway crossing, and to see and hear approaching trains, is particularly applicable to pedestrians; the danger zone being smaller in their case.

3. RAILROADS (§ 328)—CROSSING ACCIDENTS —DUTY TO LOOK.

The fact that the view was obstructed in approaching a railroad crossing on a highway made it more obligatory upon a pedestrian to look for approaching trains before attempting to cross.

4. RAILROADS (§ 335)—CROSSING ACCIDENTS —NEGLIGENCE.

One injured at a railroad crossing, by showing that he went upon the track without seeing the train, when he could have done so by looking, destroys his prima facie case, made by showing failure to give the signals and the resulting collision.

5. RAILROADS (§ 334)—CROSSING ACCIDENTS —CONTRIBUTORY NEGLIGENCE.

A traveler, who without his own fault is placed in a position of imminent peril at a railroad crossing, will not be guilty of contributory negligence, though he did not select the wisest course in extricating himself, especially where placed therein by the company's negligence.

6. RAILROADS (§ 327)—CROSSING ACCIDENTS —CONTRIBUTORY NEGLIGENCE.

Though a pedestrian knows that a certain train is due to stop at a nearby station at a certain time, and sees a train approaching at that time, he cannot assume that it is the local train, which will stop, so as to excuse himself from ascertaining whether it is the expected train.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Action by Frank H. Farris, administrator of the estate of J. H. Calvin, against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. F. Evans, of St. Louis, and Mann, Todd & Mann, of Springfield, for appellant. Frank H. Farris and C. C. Bland, both of Rolla, for respondent.

GRAY, J.

This is an action by the plaintiff, administrator of the estate of J. H. Calvin, deceased, to recover damages for his death alleged to have been caused by defendant's negligence. The answer denied negligence on defendant's part, and alleged that Calvin's death was due to, and was the direct result of, his own negligence. The issues were submitted to a jury, and a verdict for $2,000 returned.

It is conceded that Calvin was killed by being struck by a passenger train of defendant at a crossing in the village of Moselle, this state, on the 29th day of March, 1911. Moselle has a population of about 250. Defendant's track runs from the southwest to the northeast through the village. The depot is situated on the north side of the track. At a point about 120 feet east of the depot is a public crossing. The railroad track divides the village, and residences and business houses are situated on either side of the track, and there is, at a point about 50 feet east of the depot, a crossing for footmen, which had been used as such for a long time prior to the death of the deceased. At a point a few feet northeast of this crossing, a sidetrack left the main line and extended parallel therewith by the station to the southwest, and at a point where the footpath crossed the track the south rail of the main track was about 6 feet from the north rail of the side track. At a point southeast of the depot and just south of the side track there was a granary, and on the side track opposite the granary and just to the southwest of the footpath, were two box cars. The east end of the east car was a few feet northeast of the east end of the granary and about 20 feet southwest of the foot path at the point where the same crossed the tracks. The defendant had two east-bound morning passenger trains, each of which had a fixed schedule of time. Train No. 6 was a fast train, due at 6 o'clock a. m., and did not stop at Moselle. Train No. 14 was due to arrive at 7:39 a. m., and was a local train, always stopping at Moselle. No. 6 was late, and arrived at Moselle on the time of No. 14.

The evidence discloses that the deceased, who had been in and about the village for several months, started to cross from a saloon on the south side of the village to the north side, by way of the footpath, and, as he was passing over the main track, was struck by the fast east-bound No. 6, and killed. The evidence further discloses that several people were at the station, waiting to become passengers on No. 14, when No. 6 passed through without stopping, and at a rate of about 60 miles an hour. There is a sharp conflict in the record as to whether the signals were given for the station and the crossing. The plaintiff's witnesses testified that signals were not given, and the defendant's witnesses that they were. The verdict of the jury settled this question in favor of plaintiff.

The petition alleged that the distance between the side track and the main track was 8 feet, and all the witnesses practically agreed that at the northeast corner of the east box car the distance was 7 feet and 8 inches, and at the path about 6 feet. The witnesses also agreed that, when the deceased had reached a point where his view was no longer obstructed by the east end of the box car, he could have seen, had he looked, the approaching train for some distance down the track. This distance had been measured by one witness for the plaintiff and two for the defendant, and they agreed that it was from 1,400 to 1,500 feet. Other witnesses testified that it was about a quarter of a mile. One witness for the plaintiff, however, testified he had never measured it, but he thought the track was straight for about 600 feet, and that a train could have been seen coming that distance at least. There was other testimony that the train could have been seen beyond the point where the curve commenced in the track. It can hardly be said there is any conflict on this point, as the witness who testified the track was straight for 600 feet said he was only approximating it, and it might have been straight for a greater distance, and did not undertake to say a train could not have been seen at a greater distance than 600 feet.

The evidence showed that the side of the box car extended 2 feet north of the south rail of the side track, and this distance, deducted from the distance between the rails, left a space of 5 feet and 8 inches between the northeast corner of the box car and the south rail of the main track. In determining the distance the deceased was from the main track when he could have seen the approaching train, the distance the side track was from the main track at the point where the path crossed the same is immaterial. The issue would be the same if the side track had not extended east of the box cars at all. The deceased could have seen the approaching train when his vision was no longer obstructed by the box car, and, as heretofore stated, the witnesses agreed that this was when he was at least 5 feet and 8 inches from the main track, and that the train would have remained in full view from the time when it first could have been seen until it had crossed the path. It is upon this proof that the appellant claims the court should have given its demurrer to the evidence.

The duty to look and listen for an approaching train before attempting to cross a railroad track is absolute, and the failure to do so when there is opportunity therefor is want of ordinary care as a matter of law. Burge v. Railroad (Sup.) 148 S. W. 925; Green v. Railway, 192 Mo. 131, 90 S. W. 805. This duty to look and listen before...