Killingsworth v. Kansas City, C. & S. Ry. Co.

• Decision Date: 25 February 1919
• Docket Number: No. 2407.,2407.
• Citation: 209 S.W. 301
• Court: Missouri Court of Appeals
• Parties: KILLINGSWORTH v. KANSAS CITY, C. & S. RY. CO.

209 S.W. 301

KILLINGSWORTH v. KANSAS CITY, C. & S. RY. CO.

No. 2407.

Springfield Court of Appeals. Missouri.

February 25, 1919.

Appeal from Greene County Court; Guy D. Kirby, Judge.

Suit by J. S. Killingsworth against the Kansas City, Clinton & Springfield Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas and William C. Lucas, both of Kansas City, for appellant.

Roscoe Patterson, of Springfield, for respondent.

STURGIS, P. J.

Plaintiff, a traveler on a public highway where same crossed defendant's railroad, was injured by a collision with defendant's passenger train. The defendant's road runs substantially north and south, and plaintiff was traveling east along the public road in a one-horse buggy, when same was struck by a southbound train, resulting in demolishing the buggy, killing the horse, and in a broken arm and bruises and other injuries to plaintiff. Bringing this suit for such injuries and trying the same before the court without a jury, the plaintiff obtained judgment for $1,000, and defendant appeals.

The basis of plaintiff's complaint is defendant's negligence in failing to comply with the statute requiring a warning signal by bell or whistle to be sounded on the train's approaching a public road crossing 80 rods distant therefrom and continued at intervals till the train passes the road crossing. The defendant denied this negligence and thereby raises the first issue of fact. The defendant by its answer alleged that plaintiff was guilty of negligence contributing to his injury, in that he heedlessly drove onto the railroad, itself a warning of danger, without keeping a lookout for approaching train and failed to stop and look and listen for such train. This raises the second and only other issue in the case.

The law is so well settled with reference to these issues that the learned counsel for each party drew declarations of law submitting same which the trial court gave as being correct, and, as neither party makes complaint as to these declarations of law, there is unanimity in that respect. The trial court found the issues of fact, both as to defendant's failure to ring the bell or sound the whistle on approaching this crossing and as to plaintiff not using due care to discover the approaching train, in plaintiff's favor. The defendant concedes that it is bound by these findings of fact, provided there is any substantial evidence upholding the court's finding. The defendant now stands on its demurrer to the evidence.

As to the first issue of defendant's failure to give the statutory warning by bell or whistle on approaching this crossing, the evidence is conflicting, and we have no difficulty in concluding that there is substantial evidence of defendant's failure in this respect. The crossing in question is one mile south of the station of Phoenix, at which the train stopped. The country there is broken and hilly, causing many curves in the track, which, with the cuts through which it passed, obscured a view of the train for any considerable distance from almost every viewpoint. The plaintiff lived on a hill some 175 to 200 feet west from the crossing in question, and, knowing that his view of an approaching train was very much obscured, he testified positively that on this occasion he was giving heed and listening for an approaching train and that he heard neither bell nor whistle till he saw the train right at the crossing. In this he is corroborated by his eleven year old daughter, who was riding in the buggy with him. The plaintiff is a preacher as well as farmer and was on his way to preach a neighbor's funeral, and defendant's learned attorney argues with much force that he must have been so absorbed in the coming funeral discourse as to be oblivious to the sounding whistle and bell. This argument accepts as absolutely true the evidence of the trainmen, section men, and other evidence of less weight that the whistle was in fact sounded at the whistling post, two long and two short blasts, and thereafter the bell was kept ringing till the crossing was reached. This, of course, is the very point in dispute. The plaintiff's evidence cannot be classed as unbelievable because contrary to the physical or unquestioned facts, and the cases cited by appellant are not applicable. Schaub v. Kansas City Southern R. Co., 133 Mo. App. 444, 448, 113 S. W. 1163; Pennell v. Chicago, R. I. & P. R. Co., 153 Mo. App. 566, 570, 134 S. W. 114; Spain v. Railroad, 190 S. W. 359, 361. Moreover, the evidence as to the bell being sounded so as to continue the warning signals till the train reached the crossing is very much weaker than as to the whistle being sounded in the first instance.

We recognize the inherent weakness of purely negative evidence as to witnesses not hearing the signals, and much of plaintiff's evidence belongs to this class; but this is true only when the witness is either not in a position to have heard or was giving no attention to the matter of signals. While it is not usual that a passenger on a train pays any attention to the constantly recurring crossing signals, yet when one of plaintiff's witnesses swears, as here, that she was sitting by an open window in the second coach from the engine and, knowing that the train was approaching this dangerous crossing at a high rate of speed, listened to hear whether the whistle or bell was being sounded between the whistling post and the crossing and that no such signal was given, then there is no question presented except her credibility; for, under such facts, it is almost certain that she could and would have heard the signals had they been given. Moreover, another witness, a man ploughing in a field who was about opposite the whistling post and 150 yards therefrom, and also a woman who had been milking and was in a similar position, each testified that they saw and observed the passing train and that no signal of bell or whistle was given. It is true that on cross-examination these witnesses admitted that their statements that no signals were given are based on the fact that they heard none, yet how can any one negative sound in any other way? We find no case holding that such evidence has no probative force and, if we did, we would decline to follow it.

The defendant's negligence being established by the court's finding, the next inquiry is to determine whether plaintiff's cause of action is defeated by his contributory negligence in heedlessly driving in front of the moving train. There is no controversy as to plaintiff's duty to use the care and vigilance of a prudent man warned of his danger by the railroad itself and that he cannot blindly and deaf to the noise of the train enter such place of danger trusting implicitly on the whistle or bell to give him warning. Though no warning signal by bell or whistle is being given, a traveler about to cross a railroad track must take such track itself as a warning of danger and use his eyes and ears, that is, look and listen, to discover and avoid a coming train. The courts have often said that the law will not excuse a traveler about to cross a railroad from looking and listening for trains, and when the facts clearly show that had he looked he would have seen the train, or had he listened he would have heard it, in time to have saved himself from the danger, then he cannot recover, though he says he did do these things. Farris v. Railroad, 167 Mo. App. 392, 398, 151 S. W. 979; Waggoner v. Railroad, 152 Mo. App. 173, 179, 133 S. W. 68; Burge v. Railroad, 244 Mo. 76, 94, 148 S. W. 925; Owens v. Railroad, 188 Mo. App. 450, 454, 174 S. W. 116. The law in this respect is forcibly and aptly stated by defendant's counsel in the instructions given for defendant by the trial court in this case to the effect that, if plaintiff failed to look and listen for the approach of the train before attempting to cross the railroad, then he was guilty of negligence barring this action; and further:

"It was the duty of plaintiff while approaching the railway track and driving onto the same to constantly use his eyes, if he could see by looking, and ears, to look and listen for approaching trains; and, if you believe from the evidence that the plaintiff could have seen or heard the train in time to have avoided the collision with it, then your verdict must be for the defendant, and this is true, even though you may believe the defendant's servants failed to give signal by bell or whistle of the train's approach."

The burden was on defendant to make good this defense of plaintiff's contributory negligence, and, since the credibility of defendant's witnesses and evidence was a matter for the trier of the facts, the only question here is whether the plaintiff's evidence, or rather the whole evidence, is such as to conclusively show the plaintiff's negligence in this respect. This must be...