Hook v. Missouri Pac. Ry. Co.

• Decision Date: 21 May 1901
• Citation: 63 S.W. 360,162 Mo. 569
• Parties: HOOK v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

63 S.W. 360

162 Mo. 569

HOOK v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

May 21, 1901.

RAILROADS—CROSSING ACCIDENT—CONTRIBUTORY NEGLIGENCE—SUBMISSION OF ISSUE— EVIDENCE — CONFLICT WITH PHYSICAL FACTS—SUFFICIENCY—PRESUMPTION.

1. Where the configuration of the surrounding country was such that plaintiff, on approaching a railroad crossing in the daytime, had a plain view of defendant's tracks for 200 or 300 feet of the crossing from the time he approached within 30 feet thereof, his evidence that he constantly looked for a train, and could not see it until his horse was going on the track, immediately in front thereof, is so irreconcilable with the physical facts as to forbid the submission of the issue of plaintiff's inability to see the train until he started to cross the track.

2. A person driving towards a railroad crossing, where his view of the track is obstructed to within 10 feet thereof, and who knows that it is but two or three minutes after the time of the regular train, is not freed from contributory negligence by stopping 35 feet from the track and listening, and then driving forward, but he should stop and listen when about to cross the track.

3. The mere existence of a railroad track is sufficient warning of the danger to render a person driving thereon in front of a train without looking or listening guilty of contributory negligence.

4. Where a person approaching a railroad crossing could have seen an approaching train, but drove on the track and was injured, it will be presumed that he did not look, or that he failed to heed the warning given by seeing or hearing the train.

Valliant, Brace, and Gantt, JJ., dissenting.

In banc. Appeal from circuit court, Lafayette county.

Action by James Hook against the Missouri Pacific Railway Company for the killing of plaintiff's son in a crossing accident. Judgment was rendered in favor of plaintiff, which was affirmed in division. Motion for rehearing in banc. Motion granted, and judgment reversed.

Martin L. Clardy and W. S. Shirk, for appellant. Alexander Graves and Blackwell & Son, for respondent.

ROBINSON, J.

This is an action by James Hook to recover damages for the death of his son Henry Hook, occasioned by the alleged negligence of defendant, the Missouri Pacific Railway Company. The case was tried by a jury, and resulted in a verdict and judgment in favor of plaintiff for $5,000, and is here on defendant's appeal. This opinion is on defendant's motion for a rehearing in this court after the judgment of the trial court had been affirmed. The petition filed by plaintiff is in two counts, alike in all respects, except that in the first count it is alleged that the crossing on which plaintiff and his sons were struck by defendant's train is a public road or street in the city of Lexington, while in the second count the crossing is described as being on a road, used by the public as such, and kept in repair by public authority, and treated by defendant railway company as a public road for many years. The negligence charged in the first count is that defendant failed and neglected to sound its whistle or ring the bell on its engine as required by statute when approaching the crossing at which occurred the injury complained of. The negligence charged in the second count is the failure alone to sound the whistle. The answer is a general denial, coupled with a plea of contributory negligence on part of plaintiff. No question of pleading is involved in the case, nor are the legal propositions announced by the trial court in its instructions to the jury assailed as erroneous, if, under the evidence, the question of plaintiff's alleged contributory negligence could be said to be for the determination of the jury. The propriety of the action of the trial court in submitting the case to the jury upon the facts before it is the sole question for consideration on this appeal, and its determination involves alone the consideration of plaintiff's duty and obligation in approaching the crossing with the team in which he and his two sons were driving.

The evidence in this case shows that while plaintiff and his two sons, on the morning of June 19, 1896, were driving upon one of the public streets in the outskirts of the city of Lexington, in this state, called "Mill Street," where the same crossed the tracks of the defendant's railroad, the wagon in which they were riding was run into by a train upon defendant's road, and all the parties therein were thrown from it, and the plaintiff's minor son Henry Hook was killed; that the road or street upon which they were traveling crossed the tracks of defendant's railroad at grade, and almost at right angles; that at the intersection of the railroad with Mill street, upon which plaintiff and his sons were traveling at the time of the accident, and for several hundred feet to the east of the crossing, the railroad runs practically east and west, and that on the north side of the railroad track, and to the east of Mill street, there is a tall hill, upon the sides of which weeds and sunflowers had grown so thick as to greatly obstruct the view of an approaching train from the east to one traveling south upon Mill street; that the south slope of this hill, which faces the railroad track, stands at an angle of about 45°, and its base comes up to within eight feet of the north end of the ties on defendant's railroad, and that this eight-foot space from the foot of the hill to the railroad ties is a smooth and even surface, used as a path, and is kept comparatively free and clear of weeds and growth of all kinds. From the public road upon which plaintiff was driving the hill also slopes back to the east at about the same angle as it does from the railroad. As said, the time of the accident was June 19, 1896, at about 8 o'clock in the forenoon, while plaintiff with his two sons were going in a two-horse wagon from their home to a sand bank south of the city of Lexington for a load of sand, and in the course of their route they were required to cross the track of defendant's railroad where the accident occurred. The day was clear and bright, and there was nothing unusual in the surroundings or conditions at the crossing at the time of or just preceding the accident to disturb plaintiff, or to distract his attention. Plaintiff was in the full possession of all his senses, and, as he said, so far as he knew, his sense of sight and hearing was perfect. Save and except the noise made by plaintiff's horses and wagon, and that of the team driven by the witness Lewis 25 or 50 feet behind plaintiff, and the sounds and shouts of warning of an old negro woman who stood about 80 feet south of the crossing, calling to plaintiff to look out, as a train was coming, and the rumbling noise of the approaching train that ran into plaintiff, all was quiet in the vicinity of the crossing. Plaintiff's position at the time of the accident was on an elevated spring seat, which stood about 6 feet high from the ground, fastened to the side boards of the wagon in which he and his two sons were riding. The horses driven by him were perfectly gentle, and thoroughly accustomed to the sight and noise of trains, and would not become frightened at the rapid passing of a moving train. Plaintiff testifies that he was thoroughly familiar with the crossing and its surroundings, and of the time the regular trains on defendant's road were due to pass this particular crossing. In fact, one of the excuses given for his going upon the crossing as he did was that he had just examined his watch when about 35 feet south of the crossing, and, finding that it was then two or three minutes past the regular time of the train at that crossing, according to his watch, and having heard a faint whistle, as he says, in the direction of Myrick, a station west of this crossing some half mile or more, he concluded it was the whistle of the train that had just passed the crossing, giving its signal for Myrick, where it then would be about due. The speed of the train at the time it struck plaintiff's wagon was estimated to be 25 or 30 miles an hour. Plaintiff also stated that at the time he looked at his watch he stopped his team, to try to ascertain the whereabouts of defendant's train upon its road, but that he could neither see nor hear the train approach, on account of the hill to his left, that obstructed both the view and noise of the train, and that from the time and place when and where he first stopped his team until the feet of his horses were between the railroad tracks, although driving in a slow walk and constantly looking for a train, he was unable to see it until he was thus situated, and the train was then within 10 or 12 feet of the crossing.

Conceding that the finding of the jury upon the question of defendant's alleged negligence in failing to ring the bell or sound the whistle upon the engine of its train as it approached the crossing at which occurred the accident complained of is conclusive upon this court, though based entirely upon what might properly be called negative testimony, and opposed to what seems to have been the great weight of positive testimony to the contrary, given by witnesses called both by plaintiff and defendant, the question that presents itself now is whether, on the issues of plaintiff's alleged contributory negligence the trial court should not have declared, as a matter of law, that he was not entitled to recover upon his own statement of the facts, notwithstanding his testimony on the question of his inability to see the approaching train upon defendant's track until it was within 10 or 12 feet of the crossing, from any point on the highway upon which he was driving, until his team had actually gotten upon the crossing,—a statement, however, which, from the very nature of the situation and surroundings as detailed by the plaintiff and all the witnesses, could not be true, and which is in utter disregard of all the...