Kenney v. Hannibal & St. J.R. Co.

• Citation: 16 S.W. 837
• Parties: KENNEY v. HANNIBAL & ST. J. R. CO.
• Decision Date: 15 June 1891
• Court: Missouri Supreme Court

16 S.W. 837

KENNEY v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri

June 15, 1891

In banc. Appeal from Clinton county court; J. M. SANDUSKY Judge.

Action for personal injuries to plaintiff, and for the death of his wife, resulting from a collision at a railroad crossing. Rev St. Mo. 1889, § 4425, provides that, whenever any person shall die from an injury resulting from the negligence of an employe running any locomotive or train of cars, the company shall forfeit and pay $5,000, to be recovered by the husband or wife of the deceased.

Thos E. Turney and Strong & Mosman, for appellant.

S. S. Brown, J. F. Harwood, and Wm. A. Wood, for respondent.

OPINION

BARCLAY, J.

This cause has been thoroughly reargued before the court in banc (15 S.W. 983,) and the conclusion we have reached will be announced in a few words. Defendant’s chief point now is that the case should not have been submitted to the jury, the plaintiff’s conduct being claimed as negligent as a matter of law. A majority of the court in banc adhere to the conclusion reached, and the views expressed in the opinion of division No. 1 on this point. To what was then said we may add that the testimony of defendant’s engineer (in charge of the locomotive that struck plaintiff’s buggy) appears to corroborate plaintiff’s witnesses in their statement of the difficulty of observing a coming train from plaintiff’s position. The engineer said: "When we got almost to the road crossing, I saw a team coming right on the rails, the horses’ forefeet just inside the north rail. The horses shied off to one side. I saw a man stick his head out of the buggy, look up, and then struck his horses with the lines, or may be a whip. The engine caught the buggy. When I first saw them we were about thirty feet from crossing, and were running about 25 miles per hour." And on cross-examination he added: "I was looking forward out of my cab window on the north side of engine when I first saw Kenney. This is my side of the engine cab. The window in front of me is on the right-hand side of the boiler, and I looked through it. The first I saw he was coming on the track. I immediately shut my engine off, and called for brakes, and we stopped about 40 or 50 car-lengths west of the crossing." From this statement of the engineer, whose position in the cab placed him considerably above the level of plaintiff’s buggy, it is evident that the surroundings of the point of crossing are very unfavorable to a view of the track or of the highway from each other. If the engineer, on the lookout, could not observe plaintiff’s buggy till the engine was within 30 feet of the crossing, it is a mere matter of easy calculation to show that plaintiff’s team must then have been within 7 or 8 feet of the rails. He was moving at 4 or 5 miles an hour. At the higher rate he would cover a little less than 7½ feet each second, while the engine (at the rate of 25 miles an hour) would pass over the 30 intervening feet in five-sixths of a second. So, when first...