Green v. Missouri Pacific Railway Company

• Citation: 90 S.W. 805,191 Mo. 131
• Parties: GREEN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Decision Date: 21 December 1905
• Court: United States State Supreme Court of Missouri

90 S.W. 805

191 Mo. 131

GREEN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Division One

December 21, 1905

Appeal from Franklin Circuit Court. -- Hon. John W. McElhinney Judge.

Reversed.

Martin L. Clardy and Wm. S. Shirk for appellant.

(1) The undenied and undisputed evidence in this case, in fact, the plaintiff's own evidence, makes this a clear case of contributory negligence upon the part of plaintiff's wife. Every eye-witness to the accident, both for the plaintiff and defendant, strongly, pointedly and repeatedly testified that Mrs. Green hurried across the track on which the freight train stood, and then on across the space between the two tracks, and on the track on which she was struck looking straight ahead of her, neither to the right nor to the left, and stepped upon the track immediately in front of the engine, and was struck by it the moment she stepped on the track. Such conduct constitutes negligence which bars the plaintiff from recovery. 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; Hook v. Railroad, 162 Mo. 569; Sharp v. Railroad, 161 Mo. 214; Mirrielees v. Railroad, 163 Mo. 470; Elliott on Rys., sec. 1166, and note p. 1776; Kelsoy v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 566. This case but shows a repetition of the old, old story -- stepping off of a track on which there was no danger, on to another, immediately in front of a train. Tanner v. Railroad, 161 Mo. 497; Vogg v. Railroad, 138 Mo. 180; Maxey v. Railroad, 132 Mo. 1; Harlan v. Railroad, 64 Mo. 480. It has always been the law in this State that a person who goes upon a railroad track or proposes to cross it must use his eyes and ears to avoid injury and must be vigilant and watchful of the approach of a locomotive. The failure to exercise such vigilance is negligence per se, and precludes a recovery. Boyd v. Railroad, 105 Mo. 371; Harlan v. Railroad, 64 Mo. 480; Butts v. Railroad, 98 Mo. 272; Weller v. Railroad, 120 Mo. 635; Watson v. Railroad, 133 Mo. 250; Holwerson v. Railroad, 157 Mo. 216; Moore v. Railroad, 176 Mo. 544. And this is true, although the defendant's train may have been running in excess of ordinance speed. 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; Baker v. Railroad, 122 Mo. 533; Payne v. Railroad, 136 Mo. 562; Prewitt v. Eddy, 115 Mo. 283. So that it seems to us that there can be no doubt that the court below should have sustained defendant's demurrer to plaintiff's evidence. (2) And, as the defendant's evidence did not aid the plaintiff's case, the defendant's peremptory instruction to find for the defendant, at the close of all the evidence, should have been given. Weber v. Railroad, 100 Mo. 206; Eberly v. Railroad, 96 Mo. 361; Glover v. Bolt, 153 Mo. 342.

James Booth, William McNamee and A. R. Taylor for respondent.

(1) The doctrine of contributory negligence and its application by the court as a matter of law, has been very greatly advanced, it must be conceded. The courts have laid down as a hard-and-fast rule of human action what a citizen when passing over a railway track on a public highway must do. He or she must use ordinary care in looking and listening for an engine or train and to avoid danger therefrom. We say ordinary care in looking and listening for a train, because no case has yet held more than this, or, in other words, there is no authority yet for a contention that a citizen must exercise extraordinary care in the manner of watching for a train and escaping danger therefrom. It is an absolute truth based upon physical laws that no person endowed with good sight and good sense of hearing might not by a high exercise or the highest exercise of these faculties see or hear the approach of any train in time to avoid injury from such train unless fastened upon the track and physically unable to get out of the way of the train. Therefore, no court has ever held that in watching for a train and avoiding injury from it a person must do more than look and listen as any ordinarily prudent person would look and listen. The fact that he or she could possibly see or hear of the approaching train and fails to do so does not, as a matter of law, make him or her negligent; to hold that it does, would be holding that the citizen must insure himself against any and all negligence on the part of the railroad. That deceased might, by using a high degree of care, have seen this engine and realized the speed at which it was running and have avoided the danger from it by not going upon the track, no one can question. It was possible under the law of physics for her even before she passed across the side track on which the freight engine stood, and before she could see the engine that killed her, to have, by intently listening, realized that there was another engine on that track which might imperil her passage and have stopped and saved herself. If a failure to do so rendered her conduct negligent, then there is no case, and no case can ever be made, where a person is killed by a railroad upon a public crossing no matter how gross the negligence of the railroad. The law does not require of a citizen in the exercise of his right to cross a railway track at a public crossing that he do more than exercise ordinary care under the circumstances to avoid being injured. Ordinary care requires that he use his senses as a reasonably prudent person would do to save himself from injury, and the law in the first instance presumes in every instance that the citizen does exercise such care. The above rudiments of the care to be observed and of the relation held by the citizen to the railroad when going across a public crossing, we think are recognized by all the decisions when speaking upon this question, and are necessarily inherent in every such case unless, as we have said above, the citizen, when crossing a railway track upon a public crossing, must take into consideration that a law limiting speed to six miles per hour will be violated by the railroad and the train run from six to eight times as fast as the law allows. And also take into consideration that a law requiring the railroad to ring the bell on the engine eighty rods from the crossing and to continue to ring the bell until the engine crosses the highway, will also be disregarded. (2) This statute has been construed by this court to mean that when the plaintiff shows that the party whose injury or death on a crossing is the cause of action, and that the railroad failed to observe the requirements of the statute in failing to ring the bell, then a prima facie case is made for the plaintiff. Huckshold v. Railroad, 90 Mo. 555. Contributory negligence, however, under the statute remains a defense which the railroad may establish. (3) Here, then, in considering the question of the care of the deceased, we have two safeguards of the law which she had a right to rely upon in determining her course; she had the clear right in regulating her own movements to rely upon the railroad in moving its engines and cars not to violate the law and run six or eight times as fast as allowed to run. She had also as a guide for her movement and action the fact that a train approaching the crossing was bound to sound the bell eighty rods from the crossing, and to continue sounding it until the engine crossed the crossing. This court has very often and very recently held this healthy and reasonable rule. Hutchinson v. Railroad, 161 Mo. 254; Weller v. Railroad, 164 Mo. 199; Riska v. Railroad, 180 Mo. 190; Johnson v. Railroad, 77 Mo. 546; Petty v. Railroad, 88 Mo. 318; Jennings v. Railroad, 112 Mo. 276. (4) When the court sits in judgment on this issue, it takes cognizance of each fact and circumstance in evidence, and in addition thereto presumes, in favor of the deceased, that she, with the instinct of self-preservation alert, which the evidence shows was true, did not negligently expose her life. Buesching v. Gaslight Co., 73 Mo. 233; Petty v. Railroad, 88 Mo. 320; Bluedorn v. Railroad, 108 Mo. 448; Schlereth v. Railroad, 115 Mo. 100; Meadows v. Ins. Co., 129 Mo. 93; Weller v. Railroad, 164 Mo. 199. (5) The court will also, in passing upon the act of deceased and in considering her surroundings, give weight to the fact that she had a right to rely upon the railroad obeying the ordinance limiting the speed of the engine to six miles an hour. If this had been done, there is no question but her action in crossing the street would have been safe, and if the bell had been constantly rung, as required by the statute, she would have had timely notice of the approaching engine, and its proximity to the crossing would have been indicated at each sound of the bell, thus giving what the statute intended to be, a constantly approaching safety signal to warn citizens. This court has repeatedly held that the citizen has a right to rely upon such laws. That is, in regulating their action they have a right to do so, with the expectation that the railroad will obey such laws. Hutchinson v. Railroad, 161 Mo. 254; Weller v. Railroad, 164 Mo. 199.

OPINION

VALLIANT, J.

Plaintiff's wife was skilled 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 2865, Revised Statutes 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...