Hayden v. The Missouri, Kansas & Texas Railway Company
| Decision Date | 12 November 1894 |
| Citation | 28 S.W. 74,124 Mo. 566 |
| Parties | Hayden, Plaintiff in Error, v. The Missouri, Kansas & Texas Railway Company |
| Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. -- Hon. T. H. Bacon, Judge.
Affirmed.
R. B Bristow for plaintiff in error.
(1) The traveler had the same right upon the crossing as the train had, and it was as much the duty of the train men to keep a lookout as the traveler, enhanced by the greater danger from the machinery used by the defendant. Eswin v Railroad, 96 Mo. 290; White v. Railroad, 34 Mo.App. 57. (2) The defendant was negligent in permitting a mudhole in the roadway on its crossing, and to permit a broken wagon to remain in the roadway that compelled the traveler to go around it, which not only impeded his passage but forced him in a position where the view was more obstructed. Tetherow v. Railroad, 98 Mo. 74. (3) The defendant was negligent in approaching this crossing in not sounding whistle or bell, and on that the plaintiff was entitled to go to the jury. Murray v. Railroad, 101 Mo. 236; Hanlon v. Railroad, 104 Mo. 388. (4) The defendant was guilty of the grossest kind of negligence to allow prairie grass seven feet high to grow on its right of way close up to the roadbed and up to and adjoining the fence of the public road, so shutting out the view that a traveler on the highway could not see the approaching train until he was up on the roadbed, too late to avoid the fatal collision. Petty v. Railroad, 88 Mo. 306; Kelly v Railroad, 88 Mo. 534. (5) If a company permits brush, etc., to grow on its right of way and fails to give signals, it is guilty of negligence. 80 Ill. 339; 87 Ill. 78; 70 N.Y. 119.
Jackson & Montgomery for defendant in error.
(1) The plaintiff's husband was guilty of contributory negligence in failing to look and listen before he attempted to cross the railroad track, and his failure to do so being a proximate cause of his death, his widow can not recover. Harlan v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Turner v. Railroad, 74 Mo. 602; Stepp v. Railroad, 85 Mo. 229; Fox v. Railroad, 85 Mo. 679; Taylor v. Railroad, 86 Mo. 458; Boyd v. Railroad, 105 Mo. 371. (2) If deceased only looked and listened at a place where he could not discover a train, he was guilty of contributory negligence which prevented a recovery. He should have put himself in a position where he could have discovered the approaching train. Turner v. Railroad, 74 Mo. 602; Hixon v. Railroad, 80 Mo. 336; Moberly v. Railroad, 98 Mo. 183. (3) The men running the train had the right to presume that a traveler would use ordinary care, would heed the usual signals, and would not pass upon the track in front of an approaching train. Bell v. Railroad, 72 Mo. 50. (4) It was the deceased's duty to look and listen notwithstanding a failure to give proper signals. Henze v. Railroad, 71 Mo. 636; Harlan v. Railroad, 64 Mo. 480; Zimmerman v. Railroad, 71 Mo. 476; Purl v. Railroad, 72 Mo. 168. Under the above cases the peremptory instruction was properly given.
This is an action for damages for the death of plaintiff's husband, who was struck and killed by one of defendant's passenger trains, on a public road crossing about two miles west of Monroe City, about noon on the first day of September, 1891. The petition charges that his death was caused by the negligence of the defendant in allowing prairie grass and weeds to grow upon its right of way around and near said crossing so as to obstruct the view of its tracks and trains; in permitting said crossing to become and remain obstructed with holes and ruts and the wreck of broken wagons and vehicles, so as to delay and impede the quick and safe passage of persons and vehicles over its tracks at said crossing; and in failing to sound the whistle or ring the bell on the approach of its train to said crossing as required by law. The answer was a general denial and a plea of contributory negligence, upon which issue was joined by reply.
At the close of the plaintiff's evidence the defendant demurred to its sufficiency and the court overruled its demurrer. At the close of all the evidence the defendant again demurred to the evidence and the demurrer being sustained, the plaintiff took a nonsuit with leave to move to set the same aside, and the court having refused to set the same aside upon motion duly made thereafter, the plaintiff brings the case here by writ of error.
I. There was substantial evidence tending to prove a failure by defendant's servants managing the train to give the statutory signals required on its approach to the crossing on which the plaintiff was killed, and the only theory upon which the court's action in taking the case from the jury can be sustained, is that the evidence disclosed the fact that the deceased was guilty of negligence which contributed directly to his death.
It appears from the evidence that the deceased was a farmer aged about sixty-four years, somewhat hard of hearing, who lived about five miles southwest of the crossing, on which he was killed, and which was on the road he usually traveled from his home to Monroe City. At the crossing the railroad runs east and west, and the public road north and south. He was struck by the locomotive of one of defendant's passenger trains going west, from Monroe City, a few minutes behind time, at the rate of about thirty or thirty-five miles an hour, while he was in the act of crossing the track from the south, driving a two horse team hauling a common farm wagon loaded with wood. He was seated on a spring seat elevated about five and a half or six feet from the ground.
The railroad track from the crossing to Monroe City is on a straight line. At a point about one half mile east of the crossing, the track passes over a sag or drain, towards which the surface of the ground inclines from the east and west. A train in passing west from Monroe City goes down grade to this point, and thence up grade toward the crossing until it reaches a point variously estimated by the witnesses to be from one hundred feet to two hundred yards from the crossing thence upon a level to the crossing. In the public road, and about the middle thereof, and south of the track about fifteen, twenty, twenty-five or thirty feet there was a mudhole in which, prior to the accident, a wagon loaded with wheat had broken down. On the east side of the public road, on the right of way, and extending from about six feet from the south rail of the track to the railroad fence on the south side of...
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Moore v. St. Louis Transit Company
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