Lagarce v. Missouri Pac. Ry. Co.
| Decision Date | 07 April 1914 |
| Docket Number | No. 13,572.,13,572. |
| Citation | 183 Mo. App. 70,166 S.W. 1063 |
| Parties | LAGARCE v. MISSOURI PAC. RY. CO. |
| Court | Missouri Court of Appeals |
A traveler on a highway which crossed defendant's tracks had a view of about 700 to 900 feet at a point about 40 feet from the tracks, and from that point the approaching train which struck him was not visible. The ordinances of the city wherein the accident occurred required the bell to be continuously rung and forbade the operation of trains at a greater speed than 20 miles an hour. There was testimony showing that the bell of the train which struck deceased was not rung, and it appeared that if the speed prescribed by ordinance had not been exceeded the traveler would have passed over the crossing before the train could have reached him. Held, that the refusal of an instruction that if the traveler's death was the result of unavoidable accident, due to his inadvertent act in driving on the track immediately in front of a moving train, verdict should be for defendant, was proper, because it omitted all references to defendant's violation of the ordinances and treated the collision as the result of unavoidable accident due to the traveler's inadvertent act, though plaintiff claimed that it was the result of his intentional act, induced by defendant's negligence.
4. RAILROADS (§ 327)—CROSSING ACCIDENT— DUTY OF TRAVELER.
A traveler about to cross railroad tracks is bound to stop, look, and listen only when he can neither see nor hear, and where, from a point 40 feet from the crossing, he saw that there was no train within between 700 and 900 feet, he is not bound to stop before proceeding on the tracks.
Appeal from St. Louis Circuit Court; Chas. C. Allen, Judge.
Action by Mary Lagarce against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
The authorities cited by appellant on the proposition of the contributory negligence of plaintiff's intestate are as follows: Farris v. Railroad, 167 Mo. App. 398, 151 S. W. 979; Kelsay v. Railroad, 129 Mo. 365, 30 S. W. 339; Dyrcz v. Railroad, 238 Mo. 33, 141 S. W. 861; Burge v. Railroad, 244 Mo. 76, 148 S. W. 925; Laun v. Railroad, 216 Mo. 563, 116 S. W. 553; Stotler v. Railroad, 204 Mo. 619, 103 S. W. 1, 12 L. R. A. (N. S.) 240, 120 Am. St. Rep. 710; Green v. Railroad, 192 Mo. 131, 90 S. W. 805; Schmidt v. Railroad, 191 Mo. 215, 90 S. W. 136, 3 L. R. A. (N. S.) 196; Sanguinette v. Railroad, 196 Mo. 466, 95 S. W. 386; Hook v. Railroad, 162 Mo. 569, 63 S. W. 360; Lien v. Railroad, 79 Mo. App. 475; Jones v. Barnard, 63 Mo. App. 501; Drake v. Railroad, 51 Mo. App. 562; Hayden v. Railroad, 124 Mo. 566, 28 S. W. 74; Ries v. Railroad, 179 Mo. 1, 77 S. W. 734; Lane v. Railroad, 132 Mo. 4, 33 S. W. 645, 1128; Huggart v. Railroad, 134 Mo. 673, 36 S. W. 220; Stepp v. Railroad, 85 Mo. 229; Butts v. Railroad, 98 Mo. 272, 11 S. W. 754; Haffey v. Railroad, 154 Mo. App. 493, 135 S. W. 987; Sims v. Railroad, 116 Mo. App. 572, 92 S. W. 909; Gumm v. Railroad, 141 Mo. App. 313, 125 S. W. 796; Railroad v. Houston, 95 U. S. 702, 24 L. Ed. 542.
James F. Green, of St. Louis, for appellant. A. R. & Howard Taylor, of St. Louis, for respondent.
Statement.
This is an action brought by the wife to recover damages for the death of her husband occasioned, as it is alleged by the negligence of defendant, the negligence charged being excessive speed— over twenty miles an hour—and also failure of the employés of defendant to cause the bell on the engine to be constantly sounded while the engine and train were running in the city of St. Louis, both in violation of the ordinance of the city.
The answer, after a general denial, avers that the injuries to and death of plaintiff's husband were the result of his own negligence and carelessness, which directly contributed to cause his death, in this: That he drove on defendant's track, on which his team was struck, so close to cars standing on the adjoining track or tracks that his approach to the track could not be discovered by the person in charge of defendant's engine which struck the team the decedent was driving, without ascertaining before he drove on the track, as it was his duty to have done, whether a train was approaching thereto, and by not stopping his team before he drove on the track to ascertain that fact, and in failing to observe and heed the signals given by the train and the noise and smoke made thereby, and stop his team until the train had passed, and in failing to heed the warnings of persons on or near the crossing, given him of the approach of the train, and failing to avoid the train after he had discovered the danger of being struck thereby, and in otherwise failing to exercise such care as an ordinarily prudent person would have done under similar circumstances.
The reply was a general denial.
The locus in quo was at the crossing of a private roadway over the tracks of appellant, this private roadway, which we will call the dirt road, running north and south and leading from the works of the Missouri Fire Brick & Clay Company north to Manchester avenue. While not a dedicated street of the city, it was in constant use by the public, particularly by the employés of the Missouri Fire Brick & Clay Company, for whom plaintiff's husband, owning his own team, was engaged in hauling, and was in the habit of using this road to reach the Brick Company's works from Manchester avenue. This dirt road crosses four of defendant's tracks. These four tracks, two spur tracks or sidings, and two main tracks, are south of Manchester avenue and run parallel to each other and to Manchester avenue and run east and west. The spur tracks are immediately south of Manchester avenue. The next track south of these spurs or sidings is the main track, called the westbound track; next south of that is the other main track, called the eastbound track; south of that and of the right-of-way is the property of the Brick Company. Lagarce was struck and killed at the crossing of the dirt road over the westbound track. Thirteen feet, two and one-half inches from the center of the eastbound track, which is the most southern track, and to the north, is the center of the westbound track. Fourteen feet, one and one-half inches north from the center of this is the center of the south spur track or siding, and twelve feet, two and one-half inches north of the center of this is the center of the north spur track. Ten feet and ten inches north of the center of this latter is the south line of Manchester avenue, along which are the double tracks of the United Railways Company. The westbound main track of defendant is thirty-nine feet and six inches south of the south line of Manchester avenue, at the point where the dirt road leaves that avenue and runs south. We gather these figures from the testimony, aided by the plat which was in evidence and is before us. Referring to these measurements and to the testimony, the distance between the north rail of the westbound track of defendant and the south rail of the spur track next north of that is nine feet one and one-half inches clear between these two tracks. There were box cars standing on the spur tracks, on which of them is not very clear; apparently west of the crossing of the dirt road. It was in evidence that these box cars extend from two to two and one-half feet beyond the rail. Hence there was a space of about six feet, seven and one-half inches clear along the side of this car between it and the north rail of the westbound track. The length of the horses of decedent and the distance back to the wagon where he sat while driving was eight feet, so that when the line of vision alongside of these cars was open for decedent to see a car coming from the east, his horses would be about one foot north of the track, one and a half feet, say counsel for respondent. Knox avenue was one hundred and sixty-five feet west of this dirt road, and Sulphur avenue nine hundred feet east of it. It may be added that the train, the engine of which struck Lagarce, was the Kirkwood Accommodation coming from the east going west and, as stated, on the westbound track, the track immediately north of the eastbound track. The train consisted of an engine and tender, combination coach and one or more passenger coaches. Its crew was made up of an engineer, fireman, brakeman and conductor. Just as the horses of Lagarce had gotten well on to the westbound track, the engine struck them, killed Lagarce, killed one of the horses instantly and fatally injured the other, and was not brought to a stop until it had run several hundred feet west of the place of the accident. It further appears that just before this westbound train came along and passed this crossing, an eastbound train had gone over this same crossing along the eastbound track, the two trains having met at about Sulphur avenue.
Going into the evidence in detail, the summary of it made by the learned counsel for appellant is very concise and with few changes we follow that summary.
Miss Jennie Katherine Lang testified that she saw John Lagarce killed by a westbound passenger train on the Missouri Pacific tracks on April 9, 1906; that when the accident occurred she was standing on a platform on the south side of the street car tracks at Knox avenue, waiting for a street car; that when she saw...
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