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

105 Mo. 270 at 289.

Original Opinion of April Term, 1891, Reported at: 105 Mo. 270.

Barclay J. Sherwood, C. J., dissents.

OPINION

ON REHEARING IN BANC.

Barclay J.

This cause has been thoroughly reargued before the court in banc, 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 number 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 twenty-five 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 forty or fifty 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 thirty feet of the crossing, it is a mere matter of easy calculation to show that plaintiff's team must then have been within seven or eight feet of the rails. He was moving at four or five miles an hour. At the higher rate, he would cover a little less than seven and one-half feet each second, while the engine (at the rate of twenty-five miles an hour) would pass over the thirty intervening feet in five-sixths of a second. So, when first seen by the engineer, plaintiff's team must have been just clearing the cut referred to particularly by the plaintiff's witness, who said that "he would not get clear of the obstruction made by the cut until within six or eight feet of the railroad crossing."

The engineer was at his post, on the side of the...