Henderson v. St. Louis-San Fransico Ry. Co.

Citation284 S.W. 788
Decision Date12 April 1926
Docket NumberNo. 25147.,25147.
PartiesHENDERSON v. ST. LOUIS-SAN FRANCISO RY. CO.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Walter H. Henderson against the St. Louis-San Francisco Railway Company. Judgment for defendant was affirmed by the Springfield Court of Appeals (248 S. W. 987), and cause certified to Supreme Court on the ground that the holding conflicted with other decisions: Affirmed.

Frank B. Williams and John T. Sturgis, both of Springfield, for appellant.

W. F. Evans, of St. Louis, and Mann & Mann, of Springfield, for respondent.

LINDSAY, C.

The plaintiff sued to recover damages for injury done to his automobile, which was struck by a train of defendant upon a street crossing in the city of Springfield. The plaintiff, at night, was driving south on a much traveled street, over which crossed, near together, two east and west tracks of defendant. The south one of these was the main track. As plaintiff approached near the north track, which was a long switch track, a long freight train was moving eastward thereon. Plaintiff started across about the time the caboose of this train, moving slowly, passed from the east part of the street. Crossing the first track, and coming upon the south track, the automobile was struck by the engine of a train moving westward, on the south or main track.

The allegations of negligence were: (1) Defendant's train which struck the automobile was running at a speed excessive under the circumstances, and in violation of a city ordinance; (2) failure to give warning by bell or whistle of the approach of the west-bound train; (3) failure of defendant to keep a watchman at the crossing to warn travelers as required by a city ordinance; (4) running the west-bound train at high speed over the crossing of such street, in a populous city, immediately after another train, going in the opposite direction, had cleared the crossing, thereby causing congestion of travel and a dangerous condition. The answer pleaded a general denial and contributory negligence on the part of the plaintiff.

The plaintiff did not testify that he knew of the ordinance of the city requiring a watchman at that crossing, but said he was well acquainted with the crossing, having often passed over it, had never seen a watchman there, and knew no watchman was there at the time. It was shown, and indeed conceded, that defendant had not maintained and did not maintain any watchman at that crossing. Plaintiff presented his principal instruction, submitting the various acts of negligence alleged. A clause thereof would have told the jury that the ordinance of the city required `the defendant to keep a watchman at this crossing, and that the failure to do so was negligence. The court struck that clause out of the instruction, and, on behalf of defendant, gave an instruction which expressly withdrew from the consideration of the jury the failure to maintain a watchman who would display a red flag by day and a red lantern by night, and further instructed the jury that the defendant was not negligent in failing to have such crossing watchman at the place.

There was a verdict for defendant. Upon appeal to the Springfield Court of Appeals, two of the judges were of the opinion that plaintiff was guilty of contributory negligence as a matter of law, and that the judgment should be affirmed upon that ground. There was a dissent upon that point. The views of the judges upon that question are severally set forth in the principal opinion, the separate concurring opinion, and the dissenting opinion, and they may be found in Henderson v. St. Louis & S. F. Ry. Co., 248 S. W. 987 et seq. The judge dissenting was of the opinion that the conclusion of the majority, that plaintiff was guilty of contributory negligence as a matter of law, was in conflict with the rulings of this court in certain cases hereinafter mentioned. Upon the hearing before the Court of Appeals, the sole assignment of error relied upon by the plaintiff was the action of the court in instructing as it did in respect to the ordinance requiring a watchman. On behalf of defendant, the contentions were that the action of the court in that regard was proper, if the case was submissible at all, but that the plaintiff was guilty of contributory negligence as a matter of law, and defendant's peremptory instruction should have been given.

The contention of the defendant as to the correctness of the action in the court upon the watchman ordinance is stated and disposed of in the principal opinion as follows:

"It is contended by counsel for respondent that its failure to keep a watchman at the crossing cannot be used as a basis for recovery on the part of plaintiff because he did not testify or show that he knew of the city ordinance requiring a watchman to be kept at that crossing, and relied upon its being complied with by the railroad, and to sustain that position cites us to the following cases: Voelker Products Co. v. United Rys. Co. of St. Louis, 185 Mo. App. 310, 316, 170 S. W. 332; Paul v. United Rys. Co. of St. Louis, 152 Mo. App. 577, 587, 134 S. W. 3; Mockowik v. K. C., St. J. & C. B. R. Co., 196 Mo. 550, 571, 94 S. W. 256.

"(1-3) Appellant contends that these and other cases only hold that knowledge of the ordinance, or the want of such knowledge, is to be considered in determining the question of contributory negligence. We agree with appellant's position on that question, and especially so as applied to the ordinance requiring the maintenance of a watchman at a railroad crossing. Such a crossing might be so located that surrounding noises and obstructions to the view would prevent a traveler on the street from either hearing or seeing an approaching train, and the only way that crossing could be made safe to persons on the street would be by the maintenance of a watchman to give warning of the approach of trains. In that case a careful person might be struck and injured as a direct result of the failure to maintain a watchman at the crossing, and it would be manifestly unjust to hold that a person who knew of the ordinance should be protected, while one who did not know of it should not be protected. If the failure to do the thing required by the ordinance should be the proximate cause of the injury, want of knowledge of the ordinance should not deprive the injured party of his remedy. Knowledge a an ordinance or the lack of it, and reliance upon the ordinance being obeyed or the lack of it, are, however, very properly considered in determining the question of contributory negligence."

The evidence showed that the street in question, sometimes spoken of as Springfield avenue, and sometimes as the National Boulevard, was one of the principal streets of the city, and that there was ordinarily much travel upon it. The south of the two tracks was the main line track of defendant's Memphis Line. The space between the two tracks at the crossing was about 9 feet. The evidence was conflicting upon the question of the sounding of the whistle and ringing of the bell of the engine which struck plaintiff's automobile, and there was conflict as to the rate of speed of that train, but there was evidence that it was moving at a speed of 30 to 35 miles an hour, and other evidence that its speed was 10 or 12 miles.

The contention of counsel for defendant as to the failure to observe the ordinance requiring the watchman is that plaintiff did not testify he knew of that ordinance or relied thereon, but did testify he knew no watchman was in fact kept at the crossing; that there was no evidence to show that plaintiff was injured by reason of nonobservance of the ordinance, and therefore the case stands as though there had been no ordinance. Under this contention counsel cite the cases mentioned in the foregoing extract from the principal opinion. They further urge that the failure to comply with the ordinance is not negligence as to one who knows it had been habitually violated, citing Reeves v. Railroad, 251 Mo. 169, 176, 158 S. W. 2; Payne v. Railroad, 129 Mo. 403, 420, 31 S. W. 885; Pope v. Railroad, 242 Mo. 232, 239, 146 S. W. 790. These cases do not have the application to the instant case which counsel attempt to make of them. In Reeves v. Railroad, the deceased knew that the train which struck her, a regular train, and other trains customarily ran at a much higher speed than that provided by the ordinance. Charged with that knowledge, she stepped on the track in front of the train, which she knew was coming. In doing so she was guilty of gross contributory negligence as it was held, because she could have no reason to suppose that on that particular day there would be done the unusual thing of reducing the speed of that train to 12 miles an hour. She could not rely upon such reduction of speed; therefore her own negligence could not be excused by the fact that the defendant was negligent in violating the ordinance. Thus, in that case, her knowledge that the train ran customarily at a forbidden rate of speed, and the fact that she saw the train, were facts applied in the determination that she was negligent, and not in determining that defendant was not guilty of negligence. The like distinction may be made under the facts in the other cases cited. In this case the plaintiff is not claiming, and cannot claim, that " failure of defendant to have a watchman at the crossing is an excuse for negligence on his part. His position necessarily is that he was not misled by the failure to have a watchman. He acted upon his own knowledge and observation of an existing situation. The question as to whether he was contributorily negligent must be determined upon that basis. There being no watchman, and plaintiff being aware of it, he was under the duty of exercising the care of an ordinarily prudent person under that situation. If there had been a...

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