Hixson v. St. Louis, Hannibal & Keokuk R.R. Co.

• Decision Date: 31 October 1883
• Citation: 80 Mo. 335
• Parties: HIXSON, Appellant, v. THE ST. LOUIS, HANNIBAL & KEOKUK RAILROAD COMPANY.
• Court: Missouri Supreme Court

80 Mo. 335

HIXSON, Appellant,

v.THE ST. LOUIS, HANNIBAL & KEOKUK RAILROAD COMPANY.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Hannibal Court of Common Pleas.--HON. THEO. BRACE, Judge.

AFFIRMED.

R. E. Anderson and T. H. Bacon for appellant.

The court, after hearing all of the testimony on both sides, had no right to direct a verdict for defendant. Woods v. Atlantic, 50 Mo. 112; Kelly v. Hannibal, 70 Mo. 604 The trial court only has the right to set aside the verdict and grant a new trial, and has no right to dictate the verdict of the jury in advance. Lockwood v. Atlantic, 47 Mo. 50. The case is distinguishable from that of Henze v. Railroad Co., 71 Mo. 636. Appellant did not fail to listen. If he had, unless it conclusively appears there was something audible, he was entitled to a jury. Baxter v. Troy, etc., 41 N. Y. 502; Am. and Eng. R. R. Cases, vol. 6, p. 191; Strong v. Placerville, 8 Am. and Eng. R. R. Cases 273; Smedis v. Brooklyn, 88 N. Y. 13; 88 N. Y. 445. Any laxness on appellant's part in approaching the crossing should be attributed to the absence of bell-ringing, and defendant cannot take advantage of any such negligence, superinduced by its own negligence. Tabor v. Missouri, etc., 46 Mo. 353; Morrissey v. Wiggins, 47 Mo. 525; Johnson v. Hudson, 20 N. Y. 66; Jetter v. New York, etc., 41 N. Y. 162; Penn. v. Ogier,35 Pa. St. 60. Defendant and its licensor were jointly liable for the obstructed view and passage caused by box cars on the side-track. Clement v. Canfield, 28 Vt. 302; Ohio v. Dunbar, 20 Ill. 623; 1 Redfield R'y, (1 Ed.) p. 590, § 142, note 8. The licensor had no right to obstruct Third street crossing with a side-track. Lackland v. North Missouri, etc., 31 Mo. 181. The ordinance being in evidence showed that the speed, if over six miles an hour, was excessive. Fanning v. Voelker, 40 Mo. 129. Appellant's most prudent course was to cross as soon as possible Mackay v. New York, 35 N. Y. 75.

Easley & Russell and W. P. Harrison for respondent.

Plaintiff's acts were so negligent and incautious as to bar his recovery. Henze v. Railroad Co., 71 Mo. 636; Turner v. Railroad Co., 74 Mo. 602; Railroad Co. v. Beal,73 Pa. St. 503; Benton v. Railroad Co., 42 Iowa 193; Railroad Co. v. Miller, 25 Mich. 274. The violation of the ordinance would not make a case against the defendant, without the further fact being shown that such violation caused the injury. Karle v. Railroad Co., 55 Mo. 476. Plaintiff cannot hold defendant accountable for the result of his own impatience and carelessness. Blacker's Ex. v. Receivers, etc., 18 Am. Law Reg. 562.

NORTON, J.

This suit was brought to recover damages alleged to have been sustained by plaintiff, in consequence of the negligence of defendant in running its locomotive at Third street crossing, in the city of Hannibal, over and against a buggy in which plaintiff was riding, throwing him therefrom, and inflicting upon him serious personal injuries. It is alleged that defendant was running its train at the speed of fifteen miles an hour, without ringing its bell or sounding an alarm.

Defendant's answer, besides containing a denial of the above averments, sets up that the injuries to plaintiff were occasioned by his own carelessness and negligence.

At the close of all the evidence the court instructed the jury that plaintiff was not entitled to recover, whereupon plaintiff took a non-suit and judgment was rendered for defendant, from which plaintiff has appealed, and the only question which the appeal presents is as to the propriety of the action of the trial court in sustaining a demurrer to the evidence.

It appears from the evidence that the track of the railroad which defendant was operating crossed Third street, in the city of Hannibal; that plaintiff on the day of the accident was riding in a buggy drawn by one horse on said Third street, and was traveling south toward said crossing; that on each side of said street on the north of said crossing for a distance of one block, there were piles of lumber of sufficient height which, with cars standing on a switch or side-track, shut off any view of defendant's track; that because of the lumber and the cars on the sidetrack a person approaching said crossing from the north could not see the track of defendant's road to the west until after the south rail of the side-track was passed; that the south rail of the side-track was about eight or eight and one half feet from the north rail of the main track on which the engine was running; that a person after getting one or two feet south of the south rail of the side-track could see the main track in the direction defendant's train was coming for about seven hundred feet.

Plaintiff, who was examined in his own behalf, testified as follows:

“That from the Hannibal & St. Joseph railroad, on Collier street, to defendant's railway, the piles of lumber on the west side of Third street occupied a third or fourth of the width of the street. The approach on Third street to defendant's track was barely wide enough for two teams to pass each other. That on June 11th, 1880, he and Mr. Lewis Ross were in a buggy, drawn by one horse, going south on Third street, and on reaching the Hannibal & St. Joseph railroad crossing, the defendant's railroad being a block further south, they stopped; they then crossed the Hannibal & St. Joseph railroad and drove on towards the defendant's track. Witness was on the right side of the buggy; was driving with the reins in one hand and the whip in the other. When about fifty yards from the defendant's track witness checked his horse; did not stop him perfectly still as before, but came down to a slow walk and inquired of Ross if he heard anything. Thinks he was on a graveled road, and a buggy makes more noise on that kind of road. Guessed there was nothing in the motion of the buggy to prevent his hearing the approach of a train. Did not hear any bell; did not hear anything; could not hear any sound of a moving train. To inform himself whether there was a train coming or not witness did as people generally do, check up or stop. By checking up witness meant going in a walk or standing still. In approaching the crossing they traveled slowly, not out of a walk, till they got on the track. Did not see the train until after coming out from the car. Could not see the train till they got around the box-car; was looking both ways far as he could. The left side of the buggy was loose and made some noise. Tried to hit the horse but the engine hit first. The engine hit the hind wheel of the buggy and threw him to the south side of the track, the buggy partly on him. The engine mashed his left arm so that it had to be taken off. His left lung was partly paralyzed and his back was affected, causing great pain. The...