Green v. Missouri Pac. Ry. Co.

• Decision Date: 22 November 1905
• Parties: GREEN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

90 S.W. 805

192 Mo. 131

GREEN v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 22, 1905.

1. RAILROADS — INJURY TO PEDESTRIAN AT CROSSING—NEGLIGENCE—LIABILITY.

A railway company is not liable for the death of a pedestrian, occasioned by being struck by an engine, though it was negligent in running its engine at an unlawful rate of speed and in failing to ring the bell as required by the statute, where the negligence of the pedestrian directly contributed to the accident.

2. SAME—EVIDENCE—SUFFICIENCY.

In an action against a railway company for the death of a pedestrian in consequence of being struck by an engine, the evidence showed that decedent was walking fast, looking straight ahead, and that she made but one step on the track when the engine struck her. The engine was run at from 15 to 40 miles per hour. Held insufficient to warrant a finding that she saw the engine until in a moment of peril, and hence there was no presumption that she trusted that the engineer was obeying the ordinance limiting the speed of trains to six miles an hour.

3. SAME—PRIMA FACIE CASE OF NEGLIGENCE —STATUTES.

Acts 1881, p. 79, amending Rev. St. 1879, § 806, making a railway company liable for damages which a person may sustain at a railway crossing in case the engine bell was not rung as required, by adding the proviso that the company shall not be precluded from showing that the failure to ring the bell was not the cause of the injury complained of, makes proof of the accident and of the failure to ring the bell as required sufficient for a prima facie case, and to throw on the company the burden of proving that the accident was not the result of the failure to give the signal; but where plaintiff, in proving the accident, also shows that it was not caused by the failure to give the signal, or that the person injured was guilty of negligence, there is nothing for the company to prove in order to prevail.

Appeal from Circuit Court, Franklin County; Jno. W. McElhinney, Judge.

Action by John Green against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

M. L. Clardy and Wm. S. Shirk, for appellant. James Booth, William McNamee, and A. R. Taylor, for respondent.

VALLIANT, J.

Plaintiff's wife was killed by being run over by a locomotive on defendant's road in the city of Pacific. This suit was brought to recover $5,000 damages, under the provisions of section 2866, Rev. St. 1899. The trial resulted in a verdict and judgment for plaintiff for that amount, and defendant has appealed.

The petition charges that the locomotive was negligently run at a high and excessive rate of speed; that the bell was not rung or kept ringing, as the statute requires; and the locomotive was run in excess of six miles an hour in violation of an ordinance of the city. The answer was a general denial and a plea of contributory negligence. Reply, general denial.

The testimony for plaintiff tended to show as follows: An ordinance of the city, prohibiting the running of locomotives or trains through or within the city limits at a rate of speed in excess of six miles an hour. Defendant's railroad tracks run east and west through the city. There is a main track, one side track north of the main track, and two or more side tracks south of it. We are concerned only with the main track and the side track north of it. Between these two tracks was a space eight feet wide. First street runs north and south, crossing the tracks at right angles. There is a sidewalk on each side of the street. A freight train had just come in from the west, headed east, and stopped on this north side track with the point of the engine at, or perhaps a little over, the west line of the west sidewalk. It stood there puffing or making the noise usual from engines just brought to a stop with steam on. The plaintiff's wife, with a party of friends, approached from the north on First street, walking south toward the railroad tracks, aiming to cross to the south side of the tracks. Something detained the plaintiff's wife a moment on the north side, while the rest of the party walked on across the tracks to the south side. The plaintiff's wife resumed her course, walking along the west side of First street until she came near the front of the engine of the freight train. Then she passed over to the east sidewalk, then on the south, crossing the side track on which the freight train was standing, crossing the eight-foot space between the tracks, and stepped with one foot on the main track, and in that instant a locomotive, coming east on the main track, struck her and killed her. Her body fell on the north side of the track. The engine which struck the plaintiff's wife was what they call a "helper"; its use being to help trains over a grade just west of Pacific. It had at this time no cars attached to it, and was being run backwards; that is, tender in front. It came without ringing the bell, and at a rate of speed of which the plaintiff's several witnesses gave various estimates, ranging from 15 to 40 miles an hour. Looking west from the crossing at First street, the main track was straight for 300 yards, and there was nothing in the way to obstruct the west view of one standing in the eight-foot space between the tracks. So far as the witnesses could discern, the deceased, after passing the front of the freight train, continued onward until she stepped upon the main track, without pausing and without turning her head to look in either direction, keeping her face straight to the south. Some of the plaintiff's witnesses said she was running; others that she was walking fast. All said she was looking straight south, and going fast. At the close of the plaintiff's case defendant asked an instruction in the nature of a demurrer to the evidence, which was refused and exception taken. The defendant's evidence was to the effect that the engine was running only six or seven miles an hour, and that the bell was ringing all the while. In other respects it was not materially different from that of plaintiff. At the close of all the evidence the defendant again asked an instruction in the nature of a demurrer to the evidence, which was also refused and exception taken.

The demurrer to the evidence should have been sustained. Conceding that the engine was going at an unlawful rate of speed, and that the bell was not ringing, and therefore that defendant was negligent, still the defendant was not liable, if there was negligence of the deceased which directly contributed to the accident. The testimony shows that the situation was such that if the deceased, after passing the freight engine and before stepping on the main track, had looked, she would have seen the helper engine...