Henderson v. St. Louis & S. F. Ry. Co.

• Decision Date: 16 March 1923
• Docket Number: No. 3210.,3210.
• Citation: 248 S.W. 987
• Court: Missouri Court of Appeals
• Parties: HENDERSON v. ST. LOUIS & S. F. RY. CO.

248 S.W. 987

HENDERSON v. ST. LOUIS & S. F. RY. CO.

No. 3210.

Springfield Court of Appeals. Missouri

March 16, 1923.

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, and plaintiff appeals. 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.

COX, P. J.

Action for damages to an automobile caused by a train striking the automobile as plaintiff was crossing the track of the railroad. Trial by jury, and' verdict for defendant. Plaintiff appealed.

Plaintiff charged negligence in running the train at an excessive rate of speed, to wit, 35 miles per hour in crossing a much-traveled street, and also in violation of a city ordinance limiting speed to 10 miles per hour and failure to ring the bell or sound the whistle; failure to maintain a watchman at the crossing as required by city ordinance; that defendant maintained two tracks close together at this crossing, and the train which struck plaintiff's automobile was a west-bound train that reached the crossing immediately after an east-bound train had cleared it; and that the passage of the east-bound train bad caused traffic to congest on the street, and that those in charge of the west-bound train knew, or &tight to have known, that as soon as the east-bound train had cleared the crossing vehicles would attempt to cross the tracks; and that they ran the west-bound train at a rapid rate of speed aver" this crossing and without warning. The defense was a general denial and plea of contributory negligence.

The alleged acts of negligence were all submitted to the jury, except the failure to maintain a watchman at the crossing, and that issue was taken away from the jury by a peremptory instruction. No complaint is made of the instructions which submitted the issues as to the other allegations of negligence to the jury, but the appeal is based solely on the alleged error of the court in refusing to permit the jury to pass) on the question of defendant's negligence in not maintaining a watchman at the crossing where the accident occurred.

It is conceded that a watchman was not maintained at the crossing, and the ordinance of the city of Springfield introduced by plaintiff plainly required that a watchman be maintained at this crossing. There was therefore no question but that the defendant violated the city ordinance. Appellant contends that this violation was negligence per se, and that it was therefore error for the court to take that issue from the jury. Respondent concedes that the violation of the city ordinance was negligence per se, but contends that it did not constitute a ground of recovery in this case, because plaintiff knew that no watchman was stationed there, and that the violation of the ordinance was not the proximate cause of the injury, and that plaintiff was guilty of contributory negligence as a matter of law, and therefore the verdict was for the right party, and defendant's demurrer to the testimony should have been sustained, and the judgment should be affirmed regardless of any other error.

The accident occurred in the nighttime, at a crossing on what is known as the National boulevard or Springfield avenue in the eastern part of the city of Springfield. Plaintiff, after church, had driven to the north part of the city to take a party home, and as he returned with his wife and niece in the car they approached the tracks of defendant from the north on the National Boulevard. Thee defendant had two parallel tracks running east and west at this crossing 8 or 10 feet apart. The ground was level, the tracks straight, and the view of the tracks unobstructed for at least 200 yards to the east. The south track was the main track and the north track, on which a freight train was at the time passing eastward, was a switch track. Plaintiff knew there were two tracks there, but did not know which was the main line track and which the switch track. He also knew that a watchman was not maintained at that crossing. As ha approached the track from the north, he found two other automobiles had stopped, one behind the other, to wait for the crossing to be cleared by the freight train, which was moving toward the east over the crossing on the north track. Plaintiff drove past one of these automobiles and up even with the other one. Another party drove up, and came up even with him to his left. As soon as the caboose at the rear of the freight train had cleared the street, plaintiff started forward, and as he passed over the second track, his car was struck by the engine of a west-bound train and badly demolished. The occupants of the car were hurt also, but this action is for damages to the car alone. Other facts will be noted later.

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. 186 Mo. 550, 571, 94 S. W. 256.

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 of 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.

In this case, as in all others, in determining the Question of plaintiff's contributory negligence as a matter of law, every reasonable intendment is to be drawn in his favor. No hard and fast rule can be fixed in any case, but each case must be determined upon its own facts. Lamb v. Mo. P. R. R. Co., 147 Mo. 171, 186, 48 S. W. 659, 51 S. W. 81; Kenney v. Hannibal St. J. Ry. Co. 105 Mo. 270, 284, 285, 15 S. W. 983, 16 S. W. 837; McGee v. Railroad, 214 Mo. 530, 547, 114 S. W. 33.

The guiding star in passing on a question of negligence is what an ordinarily prudent person would have done under the same circumstances, and out of this has developed a few general rules which may be said to apply in all cases, unless the particular circumstances of a given case may create an exception to the rule. Among these are the following: A railroad track is, in and of itself, a warning of danger. Generally speaking, this is true of a switch track the same as a main line track. Morrow v. Hines, Director General (decided by this court) 233 S. W. 493.

A person, before venturing to pass over a railroad crossing, should look and listen for approaching trains, and this duty continues until the dangerous locality is passed. Stevens v. Mo. Pac. Ry. Co., 67 Mo. App. 356, 364, 365; Weller v. C., M. & St. J. Ry. Co., 120 Mo. 635, 647, 23 S. W. 1061, 25 S. W. 532. He must use ordinary care to look, as he can, in both directions. Looking in one direction only will not suffice, unless he has good reason to believe that a train will not approach from any other direction. Moore v. St. Louis Transit Co., 95 Mo. App. 728, 736, 75 S. W. 699.

A person's conduct in going upon a railroad crossing must be measured by what he knew at the time, and the circumstances which surrounded him. Reeves v. K. C., St. L. & C. R. Co., 251 Mo. 169, 158 S. W. 2; Pope v. Wabash It. Co., 242 Mo. 232, 238, 146 S. W. 790. What a party could have learned by the exercise of ordinary care, he must be held to have known. Vandeventer v. Chicago & A. R. Co. (MO. Sup.) 177 S. W. 834, 838.

With these general rules in view, we pass to a consideration of plaintiff's conduct in going upon the crossing where the accident occurred, based upon his own testimony while on the witness stand. From that testimony we note the following facts: Plaintiff knew there were two parallel tracks, 8 to 10 feet apart, at this crossing, and that trains passed over these tracks at all hours. That the tracks were straight, and when no trains were on either track, the view of both tracks was unobstructed for at least 200 yards to the east from this crossing. He knew that no watchman was maintained at this crossing, and was not therefore depending upon a watchman to notify him of the approaching trains. When he approached this crossing, he found two other automobiles there, one behind the other, waiting for the train to clear the crossing. Plaintiff drove past one and up to the side of and even with the other, some 12 to 15 feet from the north track. From this point he started on as soon as the...