Harshaw v. St. Louis, Iron Mountain and Southern Railway Company
| Decision Date | 28 July 1913 |
| Parties | GEORGE W. HARSHAW, Administrator of the Estate of AARON W. HARSHAW, Deceased, Respondent, v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lawrence County Circuit Court.--Hon. Carr McNatt, Judge.
AFFIRMED.
Judgment affirmed.
R. T Railey, John L. McNatt, Barbour and McDavid for appellant.
(1) The defendant's demurrer at the close of the evidence for the plaintiff and its demurrer at the close of all the evidence should have been given. Clark v. Railroad, 242 Mo 605; Dyrcz v. Railroad, 238 Mo. 46; Hook v Railroad, 162 Mo. 579; Schmidt v. Railroad, 191 Mo. 228; Sims v. Railroad, 116 Mo.App. 572; Baecker v. Railroad, 240 Mo. 518; McGee v. Railroad, 214 Mo. 545; Stotler v. Railroad, 204 Mo. 628; Laun v. Railroad, 216 Mo. 578; Sanguinette v. Railroad, 196 Mo. 488; Holland v. Railroad, 210 Mo. 350; Porter v. Railroad, 199 Mo. 96; Barrie v. Transit Company, 102 Mo.App. 87; Loring v. Railroad, 128 Mo. 359; Huggart v. Railroad, 134 Mo. 673; Ries v. Transit Co., 179 Mo. 7; Reno v. Railroad, 180 Mo. 481-482; Schaub v. Railroad, 133 Mo.App. 444; Moore v. Railroad, 176 Mo. 544. (2) As Mr Harshaw could have seen and heard the train he would be negligent in going upon the track; and the failure to give statutory signals would furnish no ground for recovery. Pope v. Railroad, 242 Mo. 238; Stotler v. Railroad, 204 Mo. 632; Green v. Railroad, 191 Mo. 142; Schmidt v. Railroad, 191 Mo. 228; Walker v. Railroad, 193 Mo. 479; Mockowik v. Railroad, 196 Mo. 570; McGee v. Railroad, 214 Mo. 545; Giardina v. Railroad, 185 Mo. 334; Porter v. Railroad, 199 Mo. 96; Ries v. Transit Co., 179 Mo. 7; Markowitz v. Railroad, 186 Mo. 357. (3) The evidence and the physical facts showed that the train was in plain view of the deceased before he went upon the track, and therefore the rate of speed was immaterial. Stotler v. Railroad, 204 Mo. 630; Schmidt v. Railroad, 191 Mo. 231; Green v. Railroad, 192 Mo. 139; Sanguinette v. Railroad, 196 Mo. 492; Walker v. Railroad, 193 Mo. 480-481; Holland v. Railroad, 210 Mo. 349; Porter v. Railroad, 199 Mo. 97; Kelsay v. Railroad, 129 Mo. 372; Loring v. Railroad, 128 Mo. 359; Schaub v. Railroad, 133 Mo.App. 444; Moore v. Railroad, 176 Mo. 544; Hook v. Railroad, 162 Mo. 581-582; Giardina v. Railroad, 185 Mo. 334-335; Higgins v. Railroad, 197 Mo. 314-318; Newton v. Railroad, 152 Mo.App. 170-173. (4) The evidence does not show that the condition of the crossing and the approach thereto (no matter what the condition was) had anything whatever to do with the injury. Porter v. Railroad, 199 Mo. 94; Sanguinette v. Railroad, 196 Mo. 492; Hayden v. Railroad, 124 Mo. 570-571; Moeller v. Railroad, 242 Mo. 725. (5) The conceded physical facts in this case show conclusively that if the deceased had looked and listened for the train before he drove on the track he would have seen and heard it. Weltmer v. Bishop, 171 Mo. 116; Van Dyke v. Railroad, 230 Mo. 278-279; Waggoner v. Railroad, 152 Mo.App. 179; Zalotuchin v. Railroad, 127 Mo.App. 584; Barrie v. Transit Co., 102 Mo.App. 91; Hook v. Railroad, 162 Mo. 580-582; Payne v. Railroad, 136 Mo. 584; Schaub v. Railroad, 133 Mo.App. 448; Ferguson v. Transportation Co., 79 Mo.App. 361; Reed v. Railroad, 112 Mo.App. 581; Stafford v. Adams, 113 Mo.App. 721; Demaet v. Storage Co., 121 Mo.App. 104; Dunphy v. Stock Yards, 118 Mo.App. 522.
William B. Skinner for respondent.
(1) The law imposes no rules of conduct upon one who is forced to escape as he may from impending danger that threatens him with great bodily harm. Donohue v. Railroad, 91 Mo. 357; Moberly v. Railroad, 17 Mo.App. 543; Lang v. Railroad, 115 Mo.App. 498; Boyce v. Railroad, 120 Mo.App. 175; McFern v. Gardner, 121 Mo.App. 12; Feeney v. Railroad, 123 Mo.App. 430; Jewell v. Manufacturing Co., 143 Mo.App. 200; Ransom v. Depot and Express Co., 142 Mo.App. 368; Weigman v. Railroad, 223 Mo. 699; Root v. Railroad, 195 Mo. 348; Bischoff v. Railroad, 121 Mo.App. 225; Kleiber v. Railroad, 107 Mo. 247; Byars v. Railroad, 161 Mo.App. 706. (2) It is obligatory upon those in charge of railroad trains to exercise a degree of caution and circumspection in approaching public road crossings, commensurate with the danger to travel by the public, so that the law should not be so applied to the citizen as to impose the whole responsibility on him for any injury that might ensue. Moberly v. Railroad, 17 Mo.App. 543; Johnson v. Railroad, 77 Mo. 546. (3) The condition and character of the approaches to railroad tracks which are required to be built and maintained by railroads, at crossings of public roads, are to be considered, when justified by the evidence, as producing causes of the injury in actions against railroads for injuries arising from failure to give statutory signals at public road crossings. Moberly v. Railroad, 17 Mo.App. 518; Day v. Railroad, 132 Mo.App. 715- 716. (4) In the absence of direct evidence or rebutting circumstances the deceased, Aaron W. Harshaw, in attempting to cross the railroad track is presumed to have been in the exercise of proper care in looking and listening for approaching trains. Moberly v. Railroad, 17 Mo.App. 546; Riska v. Railroad, 180 Mo. 168; Stotler v. Railroad, 200 Mo. 146; Weigman v. Railroad, 223 Mo. 718-720. (5) A citizen who approaches, on a public highway, a railroad crossing, and who can neither see nor hear, on account of the topography of the country and other obstructions and hindrances, an approaching train, may rely upon the required signals, venture upon the track and not be chargeable with negligence. Zimmerman v. Railroad, 70 Mo. 486-487; Kennedy v. Railroad, 45 Mo. 255; Elliott v. Railroad, 105 Mo.App. 523; Weigman v. Railroad, 223 Mo. 718-721.
(6) The defendant cannot impute a want of vigilance to one injured by his act--as negligence--if that very want of vigilance were the consequence of an omission of duty on the part of the defendant. Kennayde v. Railroad, 45 Mo. 262; Donohue v. Railroad, 90 Mo. 263; Weighman v. Railroad, 223 Mo. 718. (7) The measure of precaution to be observed by a traveler at railroad crossings of public roads depends often upon the circumstances and surroundings. When the view of the railroad is obstructed, the question of whether the traveler was wanting in due care is one for the jury. Baker v. Railroad, 122 Mo. 543; Mitchel v. Railroad, 122 Mo.App. 57.
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, Revised Statutes 1909, alleging a failure of the defendant to ring the bell or sound the whistle as required by section 3140, Revised Statutes 1909.
The testimony introduced at the trial discloses that the crossing at which the accident occured is on a public road, running north and south, through what is called Bowers Mill in Lawrence county; that the crossing is 2420 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 a thousand 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 2237 feet east of the road crossing, runs through the cut 800 feet in a northwesterly direction and passes a mile post 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 sixteen feet wide, made of planks. The south edge of this culvert is twenty-nine feet from the north rail of defendant's track and the north edge of the culvert is twenty-three feet south of where the fill commences. The top of the culvert is six feet eight inches 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 forty-five or fifty 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...
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