Harshaw v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 07 July 1913
• Citation: 173 Mo. App. 459,159 S.W. 1
• Parties: HARSHAW v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

159 S.W. 1

173 Mo. App. 459

HARSHAW v. ST. LOUIS, I. M. & S. RY. CO.

Springfield Court of Appeals. Missouri.

July 7, 1913.

Rehearing Denied July 25, 1913.

1. RAILROADS (§ 350)—CROSSING ACCIDENTS —CONTRIBUTORY NEGLIGENCE.

Where a railroad right of way was so obstructed that a traveler on a highway approaching a crossing could not have seen a train until within a few feet of the track, if he had looked, and no signals were given by the train, and he could not have heard it had he listened, he was not negligent, as a matter of law, in proceeding up to that point.

2. RAILROADS (§ 350)—CROSSING ACCIDENTS —CONTRIBUTORY NEGLIGENCE.

Where, because of the obstructed condition of a railroad track and the failure to give any signal, a traveler on a highway did not see or hear an approaching train until his team was almost, if not entirely, on the tracks, his team was afraid of an engine, and behind him was a culvert over a ditch into which the team might have precipitated him, and he made desperate efforts to get across the tracks and almost succeeded, it was a question for the jury whether in this perilous situation he was negligent in attempting to cross.

3. APPEAL AND ERROR (§ 1075) — REVIEW — WAIVER OF ERRORS.

Where, on an appeal by defendant, it stated in its brief that the sole ground upon which a reversal was sought was that the evidence wholly failed to show any liability on its part, and that a verdict should have been directed, and that it did not seek a new trial because of errors claimed to have occurred, but a reversal outright because the evidence absolutely failed to show liability, the other errors claimed to have occurred were eliminated from consideration.

Farrington, J., dissenting in part.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by George W. Harshaw, administrator of Aaron W. Harshaw, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. T. Railey, of St. Louis, John L. McNatt, of Aurora, and Barbour & McDavid, of Springfield, for appellant. William B. Skinner, of Mt. Vernon, for respondent.

ROBERTSON, P. J.

On May 28, 1912, Aaron W. Harshaw was killed at a crossing on the defendant's railroad by a passenger train, and on August 9, 1912, the plaintiff, as administrator of his estate, brought this suit, under section 5425, R. S. 1909, alleging a failure of the defendant to ring the bell or sound the whistle, as required by section 3140, R. S. 1909.

The testimony introduced at the trial discloses that the crossing at which the accident occurred is on a public road, running north and south through what is called Bowers Mill in Lawrence county; that the crossing is 2,420 feet east of the station of Larussell, which is on the south side of the defendant's railroad. The place called Bowers Mill is a little settlement in which there is a store, hotel, livery stable, and some other buildings north of the crossing about 1,000 feet, and some residences a short distance south of the crossing. The train which caused the accident was coming from the east upon a track that enters a cut 2,237 feet east of the road crossing, runs through the cut 800 feet in a northwesterly direction, and passes a milepost 98 feet further on towards the station, curves slightly to the southwest, and 533 feet east of the crossing passes what is called the red elevator or mill south of the track, and at 450 or 454 feet east of this crossing it crosses an old wagon road with an old approach on the north side of the track, and at 367 feet east of the crossing where the collision occurred it passes what is called the white elevator on the south side of the track. The track is on a fill, eight feet above the natural surface of the wagon road, which decreases towards the cut. On the north side of defendant's railroad, at the crossing where the collision occurred, it constructed an incline approach for the wagon road, and placed thereon a culvert 16 feet wide, made of planks. The south edge of this culvert is 29 feet from the north rail of defendant's track, and the north edge of the culvert is 23 feet south of where the fill commences. The top of the culvert is 6 ft. 8 in. from the ground or bottom of the ditch over which it is built.

On the morning of the accident, which was a bright, clear day, at about 10:30, the deceased and his aged wife were driving south on this public road in a buggy drawn by two horses, and as they passed over this crossing the rear portion of their buggy was struck by the engine of defendant's train, and both of them were killed; the wife dying instantly and the husband surviving only a short time. It is undisputed that the train came through the cut at the rate of 45 or 50 miles an hour; but there is some dispute as to the ringing of the bell or the sounding of the whistle, and as to the obstructions which were upon the old approach north of the railroad 450 or 454 feet east of this public road crossing where the collision occurred.

There were four persons who crossed the railroad track at this crossing shortly before these old persons were killed, and their attention was particularly directed to the train, because they knew the time the train was due and remarked as they were going over the track that it was about train time, and one of them took out his watch and observed the time, and they continued to watch the deceased and his wife, and when these witnesses were about 117 steps south of the railroad crossing they first saw and heard the train, after all of the coaches had passed the white elevator, and they then first heard any signal given. There are numerous other witnesses who testified that no signals were given until the train had reached the white elevator or some point near there. From the cut to the crossing the grade is descending until the station in Larussell is reached.

There is an abundance of testimony to the effect that one approaching the crossing where the collision occurred from the north could not see beyond the old crossing until they had advanced upon the culvert to within about 18 or 20 feet of the railroad track. There is other testimony to the effect that 80 feet north of the defendant's track neither cars nor engines thereon could be seen approaching from the east. Others testified that at the time one started up the grade at the crossing it was impossible to see a train east of the old crossing. There was also the testimony of a witness to the effect that for the entire distance of 880 feet north of the crossing there were only short intervals of about one-half that distance where a train could be seen beyond the old crossing, and, as the witness was indicating on a plat, we infer that the last point at which the witness testified a train could be seen was a considerable distance north of this crossing.

The section foreman of the defendant who had in charge the right of way along the portion of the defendant's track in controversy was a witness and testified that in September and October, 1911, there were cut off of the right of way, under his supervision, "weeds and some new sumac, blackberry briars—that was about all; maybe a few sprouts."

The appellant presents its case here on the theory that the physical facts were such that it must be held, as a matter of law, that the deceased could have seen the train had he looked or heard it, if he had listened before he arrived at a place of danger, and could, had he exercised those senses and exercised reasonable care, have avoided the collision. The appellant assumes that even when the deceased was yet north of the track and south of the culvert, and when the train at that time was coming past the mill and elevator, that by the exercise of reasonable care he could have avoided the accident, or should not have undertaken to go upon the defendant's track; but upon this point we are of the opinion that the appellant misconstrues the law and the facts.

If, as the jury must have found, there being much testimony tending to prove it, the defendant's right of way was obstructed so that the deceased, before passing over the culvert, could not have seen the train if he had looked, and if there were no signals given by the defendant, and the deceased could not have heard the train had he listened, then, up to the point where he was, as all of the witnesses who saw him (including the fireman and engineer on the defendant's engine) testified, it could not be said, as a matter of law, that the deceased was negligent in proceeding up to that point. Baker v. Railroad, 122 Mo. 533, 544, 26 S. W. 20; Weigman v. Railroad, 223 Mo. 699, 123 S. W. 38; Donohue v. Railroad, 91 Mo. 357, 361, 363, 2 S. W. 424, 3 S. W. 848.

If the deceased had reached the point between the south end of the culvert and the defendant's tracks even before he was guilty of contributory negligence, then it is insisted by the appellant that we should hold that he was guilty of contributory negligence, and that the plaintiff cannot recover, because the deceased should not have continued onto the defendant's tracks. Under those conditions, considering his perilous situation from that point on, under the authorities, it is clearly a question for the jury, which, in this case, has been passed upon by them and resolved against the appellant, and, therefore, we are relieved of any further discussion upon that point. Kleiber v. Railway, 107 Mo. 240, 247, 17 S. W. 946, 14 L. R. A. 613; Donohue v. Railroad, 91 Mo. 357, 365, 2 S. W. 424, 3 S. W. 848; Byars v. Railroad, 161 Mo. App. 692, 706, 141 S. W. 926; Feeney v. Railroad, 123 Mo. App. 420, 431, 99 S. W. 477; Ransom v. Depot and Express Cos., 142 Mo. App. 361, 369, 126 S. W. 785.

When the deceased reached the point between the south end of the culvert and the defendant's tracks, he was in a position where, under the conditions there existing, a reasonably prudent person may have concluded that the safest...