Kelsay v. Missouri Pac. Ry. Co.

• Decision Date: 30 March 1895
• Citation: 30 S.W. 339,129 Mo. 362
• Parties: KELSAY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

30 S.W. 339

129 Mo. 362

KELSAY v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 30, 1895.

ACTION AGAINST RAILROAD COMPANY — ACCIDENT AT CROSSING — CONTRIBUTORY NEGLIGENCE — FAILURE TO LOOK AND LISTEN.

1. In an action for injuries received at a railway crossing, it appeared that the train could not be seen, on account of an embankment on which corn and weeds were growing, until the traveler was within 25 feet of the crossing, from which place a train could be seen for a quarter of a mile in either direction. Held that, though plaintiff stopped and listened for an approaching train when 200 feet from the crossing, her failure to again stop and look after passing the obstruction rendered her guilty of negligence.

2. Where a person of good eyesight, in attempting to cross a railway, is struck by an approaching train, which was plainly visible from the point where it became his duty to stop, look, and listen for trains, it will be conclusively presumed that he failed to do so, and was therefore guilty of contributory negligence.

Appeal from circuit court, Vernon county; D. P. Stratton, Judge.

Action by Sarah B. Kelsay against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

R. T. Railey, for appellant. Hoss & King, for respondent.

MACFARLANE, J.

Plaintiff sues for damages on account of personal injuries by being struck by a train of defendant on a public crossing in Vernon county. The petition is in two counts. The first charges negligence generally in running and managing the train. The second charges negligence in permitting an embankment to remain upon its right of way, and suffering weeds to grow thereon, thus obstructing plaintiff's view of the track as she approached it. The answer was a general denial and a plea of contributory negligence. The plea charged that plaintiff negligently drove upon the track without taking any precaution to ascertain whether the train was approaching. A trial resulted in a judgment for plaintiff for $6,000, from which defendant appealed.

On the trial, defendant objected to the introduction of any evidence, on the ground that neither count of the petition stated facts sufficient to constitute a cause of action. The objection to the first count was that a mere general charge of negligence was not a statement of facts required by the Code. To the second count the objection was made that obstructing the view of the track at a crossing was not actionable negligence. It will not be necessary to consider these objections. The evidence shows that defendant's railroad runs into the city of Nevada from the southeast, and that a public road, running north and south, crosses it at an angle of about 45 degrees. At the time of the accident, September 13, 1892, on the north of the railroad right of way, and east of the public road, was a field of corn. The railroad track from the southeast approached the public road in a cut for a distance of about 420 feet. The cut immediately east of the crossing was about 3½ feet below the natural surface of the ground. Further east it acquires a depth of 4½ feet, and gradually lessens to the end. In making this cut the dirt had been deposited on the right of way, about 25 feet north of the track. Upon the embankment thus formed was a growth of weeds and grass. The public road was 60 feet wide, and the embankment extended up to this road. This embankment, 21 feet from the center of the public road, was 2 feet above the natural surface of the ground. Forty-six feet further east it was about 3 feet, which was the highest point. The average to the end of the cut was about 2 feet. There was no evidence that weeds grew between the railroad and the embankment. The railroad was practically straight, having a curve of only 3 degrees to the south. All witnesses who had knowledge testified that the corn in the first place, and the embankment and weeds afterwards, greatly, if not wholly, obstructed the view of the track to the southeast, and a train thereon to a traveler on the public road, approaching the railroad from the north, could not be seen until after he had passed the embankment, which was 25 feet from the track. The county surveyor, who was called as a witness by plaintiff, testified that he had taken measurements, and observed approaching trains; and a person standing in the public road, or seated in a buggy, at a point 25 feet from the railroad, and at any point between that and the crossing, had an unobstructed view of the track towards the southeast for a fourth of a mile; that this was the case regardless of the height of the embankment and weeds thereon. The evidence of this witness was corroborated by others and contradicted by none, unless that of plaintiff. The view of the railroad to the northwest was unobstructed at any point after the right of way was reached. On the 13th day of September, 1892, plaintiff drove along this public road from the north, on her way from Nevada to her home. She was driving a gentle and tractable horse, which was accustomed to trains, and was not frightened by them. She had been over this crossing several times before, though this was not her usual road from Nevada to her home. As her horse stepped upon the track, he was struck by a passenger train from the east, and killed, the buggy was torn up, and plaintiff severely injured. There was some evidence tending to prove that the required statutory signals were not given in approaching this crossing.

Plaintiff testified as a witness on the trial, and, as her right to recover depends largely on her own evidence, and as it is somewhat indefinite, we quote largely from it, as it bears on the question of contributory negligence. She testified in chief: "I had been to Nevada, and had done my errands, and was returning home, rather earlier than common; and I had some cattle that I wanted to sell, and I took that south road. I have traveled that road before, and this time I wanted to go that way. And I was traveling along slow, and I was watching and looking for the train. And I first looked toward the east, and there was an obstruction there, and I couldn't see anything or hear any noise. And I went very slow, and stopped my horse for a moment or so; and he walked all the way, — I don't think he trotted at all. And I was watching for the train, and when I got, I don't know how far from the crossing, — it wasn't very far, — I looked toward Nevada, to see if I could see the train, and that was all clear. I couldn't see anything there; and by that time the train was coming down very fast, and my horse had got his feet up on the track and the engine run against him." On cross-examination, after testifying that the first stop was 200 or 300 feet from the track, she testified: "Q. So, when you first stopped, the corn obstructed your view in that direction? A. Yes, sir. * * * Q. Then, you say, you went on toward the track? A. Yes, sir. Q. Did you stop your horse again — stop him still? A. Yes, sir; I did. Q. Now, where was that? A. That was pretty near to the track. It was nearer to the track. Q. Had you got past the corn when you stopped the second time? A. I don't know whether I had or not. I don't know whether it was the corn or the weeds that obstructed the view of the cars. I know that when I get right close to the track, — his head was right up to it, — that I looked toward Nevada, and I couldn't see anything that way; and I looked the other way, and here was the cars coming right on me. Q. You say that the first time you stopped was out where the corn obstructed your view? A. Yes, sir. Q. And then you stopped again, still? A. Yes, sir. Q. How far was that from the track? A. Just a few feet. Q. Well, how far? A. Well, four or five or six feet. Q. Did you come to a full stop? A. Yes, for a minute. Q. Then you looked to the west, and didn't see any train? A. Yes, sir. Q. And your horse at that time was not on the track? A. He had gone on again. He started on again. Q. Let's get at that. I believe you say that you stopped four or five feet from the track, and your horse came to a full stop. Is that correct? A. Yes, sir; he just stopped for a minute. Q. Did he come to a full stop? A. Yes, sir. Q. Did he stop long enough for you to look in each direction? A. I looked as he was going, and then he stopped. Then he started up again on a walk, and when his feet got on the rails he was struck. Q. When your horse stopped, what did you do then? A. I looked for the cars. Q. Which way did you look? A. Both ways. Q. And you say that you were within four or five feet of the track? A. Yes; that was the second time. I looked toward Nevada, and could not see anything, and I would have looked toward the other way, but I didn't have time. Q. Now, then, wasn't your horse moving on at that time? A. He was going very slow, I say, after I stopped him a minute there. Q. When you got within a few feet of the track, did you ever stop your horse at all long enough to look east? A. Yes, sir. Q. Did you look east while your horse was standing still before he got on the track? A. I tried to, but I couldn't see anything. Q. Do you say that you could not have seen east a quarter of a mile, when you were within fifteen or twenty feet from the track? A. I didn't see anything. Q. Was there anything to obstruct your view for a quarter of a mile, when you got within fifteen or twenty feet of the track? A. I think the embankment and the weeds would do it. Q. Is it not a fact that, regardless of the embankment and the weeds, that within twenty feet of that track you could have stopped your horse, and seen up and down the track for a quarter of a mile each way? A. I know that I didn't see anything, and I was watching and listening all the while. I didn't see anything. Q. Isn't this true, that you were driving along, and drove on this track,...