Garrett v. Wabash R. Co.
| Decision Date | 15 July 1911 |
| Citation | 159 Mo. App. 63,139 S.W. 252 |
| Parties | GARRETT v. WABASH R. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Montgomery County; J. D. Barnett, Judge.
Action by Sarah M. Garrett against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
J. L. Minnis, G. Pitman Smith, H. W. Johnson, and Bates & Blodgett, for appellant. R. H. Norton and Avery, Young & Woolfolk, for respondent.
This is a suit for damages accrued to plaintiff on account of the death of her husband through the wrongful negligent act of defendant. Plaintiff recovered, and defendant prosecutes the appeal.
Plaintiff's husband came to his death while walking upon defendant's railroad tracks in the village of Jonesburg, Mo., through being run upon by defendant's east-bound passenger train. Finding the public crossing obstructed by a freight train, decedent was walking eastward from the depot along the tracks, to the end of the crossing at another place, when defendant's east-bound passenger suddenly came upon him at a speed of from 60 to 65 miles per hour. It appears defendant's railroad tracks run through Jonesburg around a considerable curve, and that its depot is at the apex of the curve of the tracks and on the north side of the main line. There are two side tracks at Jonesburg. One of them runs around the north side of defendant's depot and connects with its main line. The other and principal side track lies immediately south of the main line and connects at either end with it. Plaintiff and her husband lived south of the depot in the village of Jonesburg, and he was presumably en route home at the time he was killed. A freight train from the eastward had pulled into the town of Jonesburg and entered upon the side track south of the main line. This train stood there for about 30 minutes and obstructed the public street crossing immediately east of the depot. Plaintiff's husband, presumably en route home, or at least to some place on the south side of the railroad, was prevented from crossing the railroad tracks on the street immediately east of the depot because of defendant's freight train standing there. He thereupon walked to the eastward as though he intended to cross to the south side of the tracks on the street crossing next east from that one near the depot. He walked eastward on the parcel of ground situate between defendant's main line and the south switch track on which the freight train was standing. Upon reaching the crossing next east from that at the depot, it, too, was obstructed by the same freight train, and decedent walked thence farther east as though he intended to cross the tracks at the next crossing, known as the mill crossing. The strip of land between the two tracks on which plaintiff's husband thus walked eastward is shown by the evidence to have been used by the public as a walk, with the knowledge and consent of defendant, for many years. Indeed, the proof is overwhelming to the effect that the public travel passed up and down the railroad from one street to another on the strip of ground between these two tracks as though it were a commonly used sidewalk.
That plaintiff's husband and others were licensed to so use that portion of defendant's right of way is established beyond question. After plaintiff's husband had passed the first road crossing east from that adjacent to the depot, and while he was walking toward the next one farther east as if to cross the track to the southward there, the freight train on the side track commenced moving slowly to the westward, and about the same time defendant's fast passenger train came suddenly around the curve from the depot at the westward, running at a rate of speed from 60 to 65 miles per hour. Because of this curve in the track and the long freight train on the side track, the view to the westward was obscured so that one occupying the position of plaintiff's husband could not see to the westward beyond the depot and observe the approach of a train from that direction. It is shown that defendant's fast passenger train was behind time and came into the town of Jonesburg and around the curve at the depot without sounding either the whistle or bell on the locomotive and first signaled plaintiff's husband of its presence from 100 to 150 feet away. At the time the passenger train came into view from the westward, plaintiff's husband was walking east on the space between the tracks on which slowly moved to the westward the freight train and the main track on which was approaching the passenger train eastward at high speed. The space on which deceased was walking and on which the license to do so obtained is shown to be about nine feet in width from rail to rail, but is reduced to four feet in width between passing trains. As the passenger train approached around the curve at the depot, two men on the slowly moving freight train hallooed at plaintiff's husband, as did a boy on the mill crossing just east of him, and all pointed toward the approaching passenger train. About the same time, the engineer on the passenger train discovered the peril of decedent and sounded the alarm, whereupon decedent moved "as fast as he could," "angling" across the main track in an effort to reach a place of safety. Before he had gotten out of the way, the locomotive of the passenger train struck and killed him.
It is argued that the court should have directed a verdict for defendant on the ground of the contributory negligence of decedent; but we do not accede to this view, for, in view of all the facts, the question was for the jury. To a proper consideration of the question of contributory negligence, the defendant's conduct must be scrutinized with care, as it relieves the...
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