Farris v. St. Louis & San Francisco Railroad Co.
| Decision Date | 23 December 1912 |
| Parties | FRANK H. FARRIS, Administrator of the Estate of J. H. CALVIN, Deceased, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Crawford Circuit Court.--Hon. L. B. Woodside, Judge.
REVERSED.
Judgment reversed.
W. F Evans, Mann, Todd & Mann for appellant.
(1) There being a clear space as deceased approached defendant's main track where he was struck and killed and after he passed the obstruction of the granary and car standing on the sidetrack and before he entered upon the main track from which he could see, had he looked, the approaching train for a distance something like nine hundred feet, as disclosed by the evidence, he was guilty of such contributory negligence in going upon the track immediately in front of the approaching train as bars recovery, and defendant's instruction should have been given. Green v Railroad, 192 Mo. 131; Giardina v. Railroad, 185 Mo. 330; Boyd v. Railroad, 105 Mo. 371; Kelsey v. Railroad, 129 Mo. 362; Moore v. Railroad, 176 Mo. 528; Carrier v. Railroad, 175 Mo. 470; Guyer v. Railroad, 174 Mo. 344; Van Bach v. Railroad, 171 Mo. 338; Sharp v. Railroad, 161 Mo. 214; Hayden v. Railroad, 124 Mo. 566; Tanner v. Railroad, 161 Mo. 497. (2) This is true although the defendant's train may have been running at an excessive rate of speed, or otherwise negligently operated. Moore v. Railroad, 176 Mo. 528; Van Bach v. Railroad, 171 Mo. 338; Kries v. Railroad, 148 Mo. 328; Weller v. Railroad, 120 Mo. 635; Green v. Railroad, 192 Mo. 131; Palmer v. Railroad, 142 Mo.App. 440; Laun v. Railroad, 216 Mo. 563; Gumm v. Railroad, 141 Mo.App. 306. (3) Nor does the fact that train No. 6, which struck and killed the deceased, was running through the station of Moselle at a high rate of speed, and without stopping or slackening up to stop, upon the exact time of train No. 14, which was scheduled to stop and always did stop at the station of Moselle, and on that account approached the station more slowly, excuse the deceased from the charge of such contributory negligence as bars a recovery. Moody v. Railroad, 68 Mo. 470; Boyd v. Railroad, 105 Mo. 371.
Frank H. Farris and C. C. Bland for respondent.
(1) The plaintiff makes out a prima facie case on the subject of listening where the evidence shows no bell was rung or whistle sounded as the train approached the crossing, and then the burden of nonliability shifts to the defendant. Weigman v. Railroad, 223 Mo. 699; Busching v. Gas Light Co., 73 Mo. 231; Toohey v. Fruin, 96 Mo. 109; Gannon v. Gas Co., 145 Mo. 516; Crumpley v. Railroad, 111 Mo. 152; Green v. Railroad, 192 Mo. 131. (2) An act done by a railroad passenger in the face of impending peril caused by the company's negligence in order to avoid injury, is not contributory negligence, as a matter of law, though it in fact contributes to the injury, and the rule is the same in case of negligent accidents generally, where the peril of the injured person is created by another's fault, and the injured person is rightfully where he is. Garret v. Railroad, 159 Mo.App. 64. (3) One is not chargeable with negligence when exposed to sudden danger, if he does not adopt the safest and best course to avoid injury. Whether the course adopted by him to free himself from the peril in which he was involved by the approaching train was such as a man of ordinary prudence might or would have adopted was a question for the jury. Byars v. Railroad, 161 Mo.App. 706; Palmer v. Railroad, 142 Mo.App. 646; Shanahan v. Transit Co., 109 Mo.App. 231; Donohue v. Railroad, 91 Mo. 357.
--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 $ 2000 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 fifty 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 six feet from the north rail of the sidetrack. At a point southeast of the depot and just south of the sidetrack there was a granary, and on the sidetrack 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 twenty feet southwest of the footpath 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 six 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 sixty 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 sidetrack and the main track was eight feet, and all the witnesses practically agreed that at the northeast corner of the east box car the distance was seven feet and eight inches, and at the path, about six 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 1400 to 1500 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 six hundred 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 six hundred 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 six hundred feet.
The evidence showed that the side of the box car extended two feet north of the south rail of the sidetrack, and this distance deducted from the distance between the rails left a space of five feet and eight 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 sidetrack was from the main track at the point where the path crossed the same is immaterial. The issue would be the same if the sidetrack 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 five feet and eight 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, 148 S.W. 925; Green v. Ry., 191 Mo. 131, 90 S.W. 805.]
This duty to look and listen before attempting to cross the track includes the obligation to see and hear a train, and where the undisputed evidence shows that the deceased, by looking, had an opportunity to see the approaching train before the time of the accident, and that his opportunity was such that he could not have failed to have seen or heard the train in time to avoid the injury, if he had used ordinary care in looking, then under the law he will be deemed to have seen and...
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