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

• Decision Date: 23 March 1891
• Citation: 15 S.W. 983,105 Mo. 270
• Parties: Kenney v. The Hannibal & St. Joseph Railroad Company, Appellant
• Court: Missouri Supreme Court

15 S.W. 983

105 Mo. 270

Kenney v. The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri, First Division

March 23, 1891

Rehearing Denied 105 Mo. 270 at 289.

Appeal from Clinton Circuit Court. -- Hon. J. M. Sandusky, Judge.

The action is for various kinds of damages sustained by plaintiff, including the death of his wife, at a public crossing of defendant's railway, in consequence (as is charged) of the negligence of operatives of a train of defendant in failing to give signal of bell or whistle as it approached the crossing. The defenses are contributory negligence and the general issue.

The instructions referred to in the opinion of the court are the following, viz.:

Given for plaintiff: "1. If the jury believe from the evidence that on the eleventh day of December, 1885, the defendant's tram approached the point mentioned in evidence, and that at such point a traveled public road crossed the defendant's railroad; and that the bell of the locomotive engine which hauled said train was not rung at a distance of eighty rods from said crossing, and kept ringing until said engine crossed said public road; and that the steam whistle, attached to said engine, was not sounded eighty rods from said crossing; and that plaintiff was approaching said crossing on said traveled public road in a buggy with his wife, and that by reason of said failure of defendant's servants upon said train to sound said whistle ringing said bell, the said engine struck the buggy of plaintiff while the same was crossing said public road and killed plaintiff's wife and injured plaintiff and plaintiff's buggy; and that at the time of said injury the plaintiff was exercising ordinary care in crossing said railroad, the jury will find for the plaintiff on each of the three counts of the petition, and assess the damages on the first count at $ 5,000, and on the second count at such amount as the jury believe from the evidence plaintiff has sustained by reason of the bodily injuries received by him not to exceed the sum of $ 10,000, and on the third count such a sum as the jury believe from the evidence plaintiff's buggy was damaged, not to exceed $ 100. The term ordinary care, as used in this instruction, means such care as a man of ordinary prudence would exercise under like circumstances."

For defendant: "5. There is no evidence in this case tending to show that, after defendant's servants in charge of the train mentioned in proof discovered the perilous situation of plaintiff and his wife, they could by any means or exertions have prevented collision of the engine with plaintiff's carriage.

"6. If the injuries complained of were the joint result of plaintiff's carelessness and lack of vigilance for his own safety, and of the failure of defendant's servants in charge of said train to give signals of approach to said crossing, then the verdict must be for defendant. If both parties were careless, neither can recover from the other on account thereof.

"7. If the injuries complained of were the result of mere accident, and if neither plaintiff nor defendant's servants in charge of the train committed a fault causing or contributing to the accidental collision, then the jury will find for defendant. Neither party can be required to answer to the other for accidental mischance."

"9. If the jury believe from the evidence that the plaintiff was well acquainted with the crossing, and the road leading thereto, and further believe that, at a point twenty-six feet from the crossing, he could have stopped his team, and from that point, if he had looked, could have seen the train approaching, and thus have averted the accident, the verdict must be for defendant."

"13. The plaintiff, in his testimony, admits that at all times before driving his team upon said crossing, he had them under perfect control.

"14. If, by reason of any miscalculation of plaintiff as to the proximity of a train, he concluded to drive upon the crossing without further efforts to ascertain certainly whether he could safely do so, the verdict must be for the defendant."

By court itself: "A. Defendant had the right to run said train at any rate of speed, and to pass said crossing either on its card time, or earlier, or later, at any speed, as it or its servants in charge thereof might choose, and plaintiff was not excused from the duty to use ordinary care to ascertain the presence of said train before driving upon said track, by the fact that it was an extra train, not running on card time; nor by the fact of its running at any rate of speed shown, nor by any failure to give signals of its approach; nor by all of such facts if found by the jury.

"B. It was the duty of plaintiff, while approaching said railroad track, and before driving upon the same, to use his eyes and ears, to look and listen for an approaching train, and if the jury believe from the evidence that plaintiff, if he had so looked and listened, could have thereby seen or heard the train in time to have avoided collision with it, and the injuries complained of, then your verdict must be for the defendant, notwithstanding the jury may further believe from the evidence that defendant's servants failed to give signals by bell or whistle of the train's approach."

Asked by defendant and refused: "4. If the jury believe from the evidence that plaintiff drove his team and carriage from a point north of, and about ninety feet distant from, the crossing, to and upon defendant's track, and, while so doing, neglected to look and listen for an approaching train they will find for defendant, notwithstanding they may find from the evidence that defendant's servants in charge of the train in question neglected to signal the approach of the train to said crossing."

"8. If the jury believe from the evidence that plaintiff, when he approached the crossing, stopped at a point some ninety feet away, and, while passing thence to said crossing, was of the impression that no train was at that time due to pass said crossing, and that, in consequence of said impression and belief, he drove said ninety feet to and upon said crossing having his attention directed entirely to his team, or to his personal discomfort from cold weather, or to any other subject, and that, while so driving over that space, he didn't think of, nor endeavor at all points where, by sight or hearing, he might have made observations to learn whether a train was near or not, then such conduct was negligence of plaintiff, and he cannot recover in this case."

"10. Plaintiff admits in his testimony that he neither stopped his team to listen, nor looked for the train while driving the distance of ninety feet, immediately before passing upon the track, and, for the purpose of this case, such admission must be taken as true.

"11. Defendant has the right to run said train at any rate of speed, and to pass said crossing, either on its card time, or earlier, or later, at any speed as its servants in charge thereof might choose; and plaintiff was not excused from the duty to be alert and watchful, and ascertain the presence of said train before driving upon said track, by the fact that it was an extra train, not running on card time, nor by the fact of its running at any rate of speed shown, nor by any failure to give signals of its approach, nor by all of such facts, if found by the jury."

"12 1/2. If the plaintiff directly contributed to the causing of the injuries complained of, by failure to look and listen for an approaching train at each and all points from which such train might have been seen or heard by him, while near, and approaching said crossing and before driving upon said track, then the court instructs the jury that it would in this case make no difference whether defendant's servants were also guilty of negligence in some one or more of the particulars as alleged in the petition or not. In such case the verdict must be for the defendant.

"12 3/4. It was the duty of the plaintiff, while approaching said railroad track and driving on the same, to constantly use his eyes and ears, to look and listen for an approaching train; and, if the jury believe from the evidence that the plaintiff, if he had looked and listened, could have thereby seen or heard the train in time to have avoided collision with it and the injuries complained of, then your verdict must be for the defendant, notwithstanding the jury may further believe from the evidence that defendant's servants failed to give signals by bell and whistle of the train's approach."

The jury found for plaintiff as follows: On the first count, $ 5,000; on the second count, $ 1,600; on the third count, $ 100; total, $ 6,700; and afterwards there was a judgment rendered accordingly from which defendant appealed after the usual steps.

One of the main questions is whether or not plaintiff should have been forced to a nonsuit because of the contributory negligence ascribed to him by defendant.

The substance of the evidence on his part, bearing on this issue, is this: Plaintiff was familiar with the place, having lived for many years near by, and having had occasion to pass it frequently. The railway there ran east and west. The highway crossed it at a right angle. Plaintiff was coming from the north. The train whose engine struck his buggy came from the east. It was an "extra" running "wild;" that is to say, it had orders to pass every way station without stopping, unless signaled to stop.

The highway, approaching the railway from the north, crosses a creek about one hundred and twenty feet from the track, and some eight or ten feet below it, thence runs up an incline some thirty feet, where there is a short level space in the road (about ninety feet from the rails), after which the...