Holland v. Missouri Pac. Ry. Co.

• Decision Date: 17 March 1908
• Citation: 109 S.W. 19,210 Mo. 338
• Parties: HOLLAND v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

109 S.W. 19

210 Mo. 338

HOLLAND v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 17, 1908.

1. RAILROADS—OPERATION—INJURIES TO PERSONS ON TRACK—PROXIMATE CAUSE.

Where a train is running 25 miles an hour within the city limits, in violation of ordinances, but slows up to five miles an hour, and then strikes a person walking on the track, the excessive speed is not the proximate cause of the injury.

2. WITNESSES — EXAMINATION — CONTRADICTION.

A party calling a witness is not precluded from proving the truth of any particular fact by any other competent testimony in direct contradiction to what such witness may have testified.

3. RAILROADS — OPERATION — PERSONAL INJURIES—SPEED OF TRAIN—SUFFICIENCY OF EVIDENCE.

In an action for the death of a person by being struck by a train, evidence considered, and held insufficient to show that at the time of the accident the train was running more than five miles an hour.

4. SAME—PERSON ON OR NEAR TRACK—DUTY TO USE CARE.

A railroad company owes a stranger walking along a railroad track no other or greater duty than to exercise ordinary care and caution in looking out for and avoiding injuring him.

5. SAME—CARE OF PERSON INJURED.

Every person who goes on a railroad track, or purposes to cross it, must use his eyes and ears to avoid injury, and every intelligent person who has arrived at years of discretion is presumed to know that it is dangerous to be on a railroad track when trains are passing to and fro, and when crossing one is expected to be vigilant and watchful of the approach of a locomotive.

6. SAME—CONTRIBUTORY NEGLIGENCE—SUFFICIENCY OF EVIDENCE.

In an action for the death of a person struck by a train while walking along a railroad track, evidence considered, and held to show that the deceased was grossly reckless in not avoiding the train, and that the operatives of the train were not guilty of negligence.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge.

Action by Mary Ann Holland against the Missouri Pacific Railway Company to recover the statutory penalty of $5,000 for the death of plaintiff's husband. From a judgment for plaintiff, defendant appeals. Reversed.

Martin L. Clardy and Ben J. Woodson, for appellant. W. K. Amick, T. F. Ryan, F. G. Chase, and G. A. Smith, for respondent.

BURGESS, J.

This suit was instituted by plaintiff to recover the statutory penalty of $5,000 for the death of her husband, John Holland, who was killed by one of defendant's engines through the alleged negligence of defendant's servants in operating said engines. The deceased was run over and killed on February 25, 1904, about 8:10 p. m., by one of defendant's engines attached to a passenger train going south on Fifth street, in the city of St. Joseph. This street ran north and south, and the Burlington Railway Company had its tracks laid thereon for a distance of seven or eight blocks, and the defendant, under a contract with the Burlington company, operated its trains over the same tracks. The street, while occupied by railroad tracks, was also used as public thoroughfare by pedestrians. There were two main tracks on Fifth street; the east track being used for northbound trains and the west track for southbound trains. Cedar street crosses Fifth street, and north of Cedar street is a cross-over track connecting the two main tracks, which cross-over track connected with the west track at a point about 255 feet north of Cedar street, and connected with the east track at the north line of Cedar street. All passenger trains going south took this cross-over, passing from the west to the east track, but all freight trains going south did not do so, but kept on the west track. There was a switch at each end of said cross-over track, and switchmen to operate them. John Holland, the deceased, was about 60 years of age, and was a section hand in the employ of the Burlington Railroad at the time he was killed. He was walking north on Fifth street between the two main tracks, and was struck by the engine of the train when he reached the cross-over track, while the engine was crossing from the west to the east track. The headlight on the engine was shining brightly at the time, and there was no obstruction to prevent deceased from seeing the approaching train.

A. H. Rehard, who was fireman on the engine in question, testified: That he saw Holland walking north between the tracks. The last time he saw him before he was struck Holland was at "about the south frog between the two tracks," and was still coming north. As the engine had at this time entered the cross-over track, and was headed in a south-easterly direction, witness, who was on the left side of the engine, was unable to see Holland after that; the engine obstructing his vision. He did not think deceased was at the time in a position of danger, and he gave no warning to the engineer. He said he rang the bell continually from the time the train left the Union Station up to the time deceased was struck. That the train was running about five miles an hour at the time he last saw deceased between the tracks. That a train going at that rate of speed could be stopped in 20 or 25 feet by use of the air brake. That from the time he last saw the man before he was struck the train did not run more than 15 or 20 feet before the air brakes were applied, and that the train ran 25 or 30 feet after the application of the air brakes. This witness also testified that the train stopped or almost stopped at Oak street, which was one block north of Cedar street, for the reason that the east track was blocked by a Burlington train which was standing at the water tank south of Cedar street, the rear car of the Burlington train being about on a line with the north line of Cedar street, and that the engine on which witness was did not cross over till the Burlington train had pulled out.

Witness Frank Hahn, testifying for the plaintiff, said that he was a laborer and had been around railroads all his life. He lived on the corner of Fifth and Cedar streets, and on the night in question he was going up town on Fifth street. When within about 50 feet of Sycamore street, which was the fourth street north of Cedar, a Missouri Pacific passenger train passed him going south, which he said was running at a speed of 25 miles an hour. There was no bell ringing on the train as it passed by him. Just as he reached the other side of Sycamore street, he heard the train whistle several times in quick succession, from which he understood that there was a man or some obstruction on the track. He looked back, and saw the train standing near Cedar street. Going back to where the train was, he found that Holland had been removed from under the engine, the front end of which, he judged, was opposite a switch stand on the north side of Cedar street. The next day witness examined the place on the track where deceased was run over, and noticed that some object had been dragged along the track which made an impression in the ground about half an inch deep for a distance of about 40 feet. The dragging, he said, had been done along the west rail of the east track, and commenced at the frog or point where the cross-over track converged with the west rail of the east track. Witness did not know what had made this impression, but thought it was made by a sack of coal which deceased had with him. He did not see any train standing south of Cedar street as he got on the track that evening, as testified to by witness Rehard, nor did he think that the Missouri Pacific train which passed by him and killed the deceased made any stop after it passed by him until deceased had been killed.

Plaintiff in her petition pleaded, and also introduced in evidence, over the objection of defendant, section 2 of a special ordinance of the city of St. Joseph granting the Burlington Railroad the right to lay and maintain tracks on Fifth street, which section provided: "Said railroad company shall not have the right to run their cars over the right-of-way herein granted at a greater rate of speed than five (5) miles per hour, and the city council may by ordinance...