Henderson v. St. Louissan Francisco Railway Company

• Decision Date: 24 May 1926
• Docket Number: 25147
• Parties: WALTER H. HENDERSON, Appellant, v. ST. LOUISSAN FRANCISCO RAILWAY COMPANY
• Court: Missouri Supreme Court

284 S.W. 788

314 Mo. 414

WALTER H. HENDERSON, Appellant, v. ST. LOUISSAN FRANCISCO RAILWAY COMPANY

No. 25147

Supreme Court of Missouri

May 24, 1926

Transferred from Springfield Court of Appeals.

Affirmed.

Frank B. Williams and John T. Sturgis for appellant.

(1) The court excluded from the consideration of the jury the ground of defendant's negligence in failing to have a watchman at the crossing in question to warn travelers of the approach of trains. The defendant concedes, and the evidence uncontradicted shows that defendant did not comply with the ordinance of the city in this respect. No watchman was at the crossing and no one warned plaintiff of the approaching danger. Defendant's violation of the city ordinance in this respect was negligence per se, and it was error to instruct the jury, as the court did, that defendant was not negligent in this respect. 33 Cyc. 949; 2 Thompson on Negligence, sec. 1538; 3 Elliot on Railroads (3 Ed.) pp. 502 544; Annacker v. Railroad, 47 N.W. 66; Murray v Railroad, 101 Mo. 236; Dahlstrom v. Railroad, 108 Mo. 525; Wilkins v. Railroad, 101 Mo. 93; Schlereth v. Railroad, 115 Mo. 87; Schlereth v Railroad, 96 Mo. 509; Stotler v. Railroad, 200 Mo. 107; King v. Railroad, 211 Mo. 1; Yonkers v. Railroad, 182 Mo.App. 558. (2) The right of a city to require railroads to maintain flagmen at busy crossings, or provide other safeguards for the protection of the traveling public, belongs to the police power of the city, and is an inherent power of all cities for the protection and promotion of the public safety. 33 Cyc. 673; Seibert v. Railroad, 188 Mo. 657, 70 L. R. A. 752. (3) The duty cast on railroads by ordinance or statute to maintain flagmen at public crossings, or other devices to warn travelers of the approach of trains, is mandatory and not discretionary; and the duty of such flagmen is positive and active in giving warning to every traveler and on all occasions when trains approach or are about to move. The railroad cannot set up as a defense to its negligence that its violation of such duty has been so long continued, so open and flagrant, that the public generally, or some particular traveler, knew that no flagman was there and did not rely on one to give him warning. That would nullify the statute or ordinance and allow the railroad to profit from its own wrong. 33 Cyc. 946, 949; Annacker v. Railroad, 47 N.W. 66; Dickson v. Railroad, 104 Mo. 491; Murray v. Railroad, 101 Mo. 236; Wilkins v. Railroad, 101 Mo. 93; McNamara v. Railroad, 126 Mo.App. 152; Edwards v. Railroad, 94 Mo.App. 36; Montgomery v. Railroad, 181 Mo. 477; Lamb v. Railroad, 147 Mo. 171. (4) The only bearing which a knowledge on the part of the traveler that no flagman is being maintained at a crossing has on the case is on the question of contributory negligence. It is held that where a flagman, or other warning device, is required by law or is customarily maintained at a crossing, then a traveler on the highway has a right to rely to some extent on the absence of same as being an assurance of a clear crossing and an invitation to proceed. This, to an extent, excuses his act, which would otherwise be contributory negligence. Where the traveler knows that no flagman is kept there, he cannot say that his absence lured him into danger or that he was thereby led to be less vigilant. 33 Cyc. 1028; 3 Elliot on Railroads (3 Ed.) secs. 1667, 1651; Yonkers v. Railroad, 182 Mo.App. 558; McNamara v. Railroad, 126 Mo.App. 152; Edwards v. Railroad, 94 Mo.App. 36; 2 Shearman & Redfield on Negligence, sec. 467; Swigart v. Lusk, 192 S.W. 138. (5) The question of plaintiff's contributory negligence was one for the jury and not a matter of law. This is not the ordinary crossing case. The two tracks were so close together as to constitute one crossing. There was not room between the two tracks for a driver of an automobile to stop, as the front wheels of the automobile would be on the rail of the second track when the driver's body was over the rail of the first one. Plaintiff's negligence, therefore, must be gauged by what occurred in driving onto the first track. The courts have often held that it was not negligence, as a matter of law, for a traveler on the highway to assume, in passing over a crossing, that a second train will not pass over such crossing immediately after another train has cleared it. Trains are not generally and should not be run over a crossing so close together as not to allow one waiting for that purpose to cross over between times, and it is not negligence as a matter of law for a traveler to cross a track just after it is cleared by one train, relying on the presumption that such crossing will not be again used by another train before he has time to so cross. McDaniel v. Hines, 239 S.W. 476; Baker v. Railroad, 147 Mo. 140; Baker v. Railroad, 122 Mo. 533; Lamb v. Railroad, 147 Mo. 171; Kinney v. Railroad, 105 Mo. 270; Stevens v. Railroad, 67 Mo.App. 356; Moore v. Transit Co., 95 Mo.App. 729; Deschner v. Railroad, 200 Mo. 310; Weller v. Railroad, 164 Mo. 204; Jones v. Railway, 220 S.W. 485; French v. Railroad, 116 Mass. 737; McGee v. White, 66 F. 502. (6) The traveler's negligence, in failing to use proper care in looking for and discovering an approaching train at a crossing, is also to be measured and determined by what are termed distracting and confusing circumstances tending to divert and excuse a close and constant attention of the traveler in discovering a coming train. Here there was not only the obstruction to sight by the outgoing train, the confusing noise of such train and its engine toward the east and the waiting automobiles, but plaintiff was thinking of only one crossing and one track and was properly giving attention to the other automobiles massed on either side to avoid danger from that source and was "worming" his way through, as the engineer said, or "picking" his way through, as he said. As the court said in McDaniel v. Railroad (239 S.W. 476), "There are too many distracting and confusing circumstances to justify us in taking the case from the jury because of the deceased's contributory negligence in going upon the crossing." Woodward v. Railroad, 152 Mo.App. 468; Baker v. Railroad, 147 Mo. 140; Lamb v. Railroad, 147 Mo. 171; McGee v. Railroad, 214 Mo. 530.

W. F. Evans and Mann & Mann for respondent.

(1) Under the facts in this case the trial court properly withdrew from the jury, by instruction, the alleged negligence with reference to defendant's failure to maintain a crossing watchman at this crossing as provided by the city ordinance. This is not a case where the plaintiff was expecting the ordinance to be complied with. He testified that he had for a long time been familiar with this crossing and knew that no watchman was stationed at this crossing. He was not expecting a watchman to warn him; on the contrary, he knew that if a train was approaching there would be no watchman to warn him. He did not know of the ordinance requiring a watchman to be stationed at this crossing. The law indulges no presumption that the failure to comply with the ordinance was the cause of the accident. The burden was on the plaintiff to show that defendant's failure in this regard was a contributing cause. The evidence wholly fails to establish this fact. The violation of a city ordinance, as any other act of negligence, must be shown to have been a proximate cause of the accident. There is no presumption of law that because of the violation of the ordinance, the plaintiff's injury resulted proximately therefrom. Schmidt v. Transit Co., 140 Mo.App. 182; Burton v. Pryor, 198 S.W. 1121; Battles v. Railroad, 178 Mo.App. 596; Bibb v. Grady, 231 S.W. 1020; Roper v. Greenspoon, 192 S.W. 149; Decker v Railway, 187 Mo.App. 207; Warner v. Railway, 178 Mo. 125; Bluedorn v. Railway, 121 Mo. 258; Weller v. Railway, 120 Mo. 635; Jennings v. Railway, 99 Mo. 394. Plaintiff must testify that he knew of the ordinance and relied upon its observance and the evidence must show that he was injured by reason of its non-observance, otherwise the case stands as though there had been no ordinance and its violation is not a proximate cause. Voelker Products v. Railroad, 185 Mo.App. 310; Paul v. Railroad, 152 Mo.App. 577; Mockowik v. Railroad, 196 Mo. 550. The failure to comply with the ordinance is not negligence as to one who knows it has been habitually violated. Reeves v. Railroad, 251 Mo. 169; Payne v. Railroad, 129 Mo. 405; Pope v. Railroad, 242 Mo. 232; Peterson v. Railroad, 270 Mo. 67; Vandeventer v. Railroad, 177 S.W. 834; Gubernick v. Railroad, 217 S.W. 33. (2) Even though the violation of the watchman ordinance constituted negligence in this case, yet, where the plaintiff is guilty of contributory negligence, as a matter of law, it was the duty of the trial court to have directed a verdict for the defendant, notwithstanding the violation of the ordinance; and if it was error for the trial court to refuse to submit the violation of the ordinance as negligence, the error is harmless. (3) The plaintiff was guilty of contributory negligence as a matter of law and defendants demurrer offered at the close of plaintiff's evidence and renewed at the close of all the evidence should have been sustained. Langley v. Hines, 227 S.W. 877; Paul v. Railroad, 152 Mo.App. 577; Hornstein v. Railroad, 195 Mo. 440; Hafner v. Traction Co., 197 Mo. 196; Giardina v. Railroad, 185 Mo. 330; Ross v. Railroad, 125 Mo.App. 614; Zeis v. Railroad, 217 S.W. 325; Van Cleave v. Rys. Co., 181 S.W. 1084; Schaffer v. Union Electric Co., 242 S.W. 436; Osborn v. Railroad, 179 Mo.App. 245. The duty of a traveler approaching a railroad track is commensurate with the danger which may be encountered. The duty to look carefully and listen carefully is a continuing one until the...