Guyer v. Missouri Pac. Ry. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Valliant
• Citation: Guyer v. Missouri Pac. Ry. Co., 73 S.W. 584, 174 Mo. 344 (Mo. 1903)
• Decision Date: 18 March 1903
• Parties: GUYER v. MISSOURI PAC. RY. CO.

73 S.W. 584

174 Mo. 344

GUYER v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

RAILROADS—INJURIES AT CROSSING—CONTRIBUTORY NEGLIGENCE—DISCOVERED PERIL.

1. Plaintiff's decedent, while driving a team drawing a heavy load, attempted to cross a railway crossing. Just before reaching the crossing he was compelled to ascend a grade, and his horses drew the load with difficulty, and could have been stopped almost instantly. For a distance of 26 feet from the track he had an unobstructed view, and could have seen the engine, by which he was injured, 700 feet away; but he drove on the track without stopping, and was struck and killed. Held, that an instruction that decedent's act in driving on the track was such negligence as would preclude a recovery unless the engine was far enough away for the person in charge of it, by the exercise of ordinary care, to have discovered his peril, and stopped the engine so as to have avoided the injury, was not justified by the evidence, as the engineer was entitled to presume that the driver would not attempt to cross in front of the engine.

Appeal from Circuit Court, Pettis County; Geo. F. Longan, Judge.

Action by A. D. Guyer against the Missouri Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Plaintiff's husband was killed by a locomotive on defendant's road at a street crossing in Sedalia, and this suit is to recover damages for the injury. The petition alleges several acts of negligence, viz., the failure to ring a bell; running at a rate of speed prohibited by city ordinance; running at a dangerous and reckless speed, without warning by bell or whistle; omitting to have an engineer on the engine, or fireman at his place of duty, or any one on the lookout at the end of the tender while backing. It was also alleged that the men in charge of the engine, after they saw, or by the exercise of ordinary care would have seen, the peril in which the plaintiff's husband was, could, by the exercise of ordinary care, have avoided the accident, if they had not been running faster than 10 miles an hour, in violation of the city ordinance. The answer was a general denial and a plea of contributory negligence. There was in evidence an ordinance of the city which prohibited the running of a locomotive faster than 10 miles an hour, requiring the bell of the engine to be rung on the approaching of crossings, and requiring, when the engine was backing, a man stationed on the end of the tender farthest from the engine, as a lookout, to avoid accidents. There was evidence on the part of plaintiff tending to show that those requirements of that ordinance were neglected in this case. The plaintiff's evidence also showed that her husband drove on the railroad track at the street crossing when the defendant's engine was approaching in plain view, and when it was obvious that the engine would strike him as it did. Plaintiff and defendant asked a number of instructions. Among those of the latter was one at the close of the plaintiff's evidence to the effect that the plaintiff was not entitled to recover. The court refused all the instructions asked, and submitted the case to the jury under an instruction of its own, designed to cover the whole case. In that instruction the jury were instructed that the act of the plaintiff's husband in driving on the railroad track was negligence, and would preclude a recovery, unless the engine was far enough away for the person in charge of it, by the exercise of ordinary care, to have discovered the peril of the plaintiff's husband, and to have stopped the engine in time to avoid the injury. Then the jury were instructed that, if they found from the evidence that such was the case, they should find for the plaintiff; otherwise for the defendant. There were a verdict and a judgment for the plaintiff for $5,000, and the defendant appealed.

Martin L. Clardy and Wm. S. Shirk, for appellant. C. C. Kelly and Sangree & Lamm, for respondent.

VALLIANT, J. (after stating the facts).

The case should not have been submitted to...