King v. Missouri Pac. Ry. Co.

• Decision Date: 20 May 1889
• Citation: 98 Mo. 235,11 S.W. 563
• Parties: KING v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

11 S.W. 563

98 Mo. 235

KING v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

May 20, 1889.

RAILROAD COMPANIES — ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE — DAMAGES — EVIDENCE.

1. In an action for negligently killing plaintiff's husband at a railway crossing, it appeared that there was no sign-board at the crossing, as required by statute, and the evidence conflicted as to whether the bell or whistle of the train that killed decedent was sounded. Defendant's evidence showed that deceased was negligent, but other evidence showed that he had never been over the public road, was unacquainted with the crossing, and that the railroad could be seen from the public road only when a few feet from the track. Held, that the question of decedent's contributory negligence was properly submitted to the jury.

2. In such case it is error to instruct a verdict for plaintiff for $5,000, if the death resulted from failure to ring a bell or sound a whistle, or from failure to have erected a sign-board, as, in order to recover that amount as a fixed sum, the case must come within Rev. St. Mo. § 2121, which fixed that as the amount of recovery in cases of death caused by negligence in managing a train of cars; and, if death is caused by failure to have erected a sign-board, the case falls within section 2123, which fixes the amount of recovery as "not exceeding $5,000," as the jury may deem just.

3. It is error to ask witnesses in such case to "state whether or not the crossing is dangerous for a stranger crossing there," as calling for an opinion.

Appeal from circuit court, Jasper county; M. G. McGREGOR, Judge.

Action by D. S. King against the Missouri Pacific Railway Company, for negligently killing plaintiff's husband. Judgment for plaintiff, and defendant appeals.

T. J. Portis and Thos. G. Portis, for appellant. T. B. Haughawout, for respondent.

BLACK, J.

A freight train on defendant's road ran over and killed James King at a public crossing some six miles south of Carthage, on the 2d April, 1885. King was traveling on the highway with a team and wagon. The plaintiff is his widow, and she bases her cause of action upon a failure of the servants in charge of the train to ring the bell or sound the whistle, as required by section 806, Rev. St., as that section has been amended; and also upon a failure of the defendant to place and maintain a sign-board over the public road at the crossing, as required by section 807. The proof is clear, and not disputed, that at the time of the accident there was no sign-board over the road at the crossing. A number of persons who saw the train testified that the bell was not rung, nor the whistle sounded, until the engine reached the crossing. Upon this point the employés in charge of the train testified to the contrary, and their evidence tends to show a compliance with the law in respect of ringing the bell or sounding the whistle. Defendant put in evidence tending to show a want of care on the part of deceased, but it is very much weakened by other evidence, which shows that King had never before traveled the public road, was not acquainted with the crossing, and that the railroad could not be...