Lagarce v. Missouri Pacific Railroad Company
| Decision Date | 07 April 1914 |
| Citation | 166 S.W. 1063,183 Mo.App. 70 |
| Parties | MARY LAGARCE, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
March 4, 1914, Argued and Submitted
Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.
AFFIRMED.
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 employees 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 in 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 employees 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 onto 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 Lagarce he was driving his wagon on Manchester avenue, going east; that as he turned across Manchester avenue into this dirt road, he stopped for awhile, stopped to listen, as witness supposed, for a few minutes, and looked east and west, turning his head in those directions, and then started over the track; that his horses were moving at a walk, going about two or three miles an hour; that the train that struck Lagarce was running about fifty miles an hour never heard any signals given by the train; did not remember seeing or hearing any train approaching from the east at the time Lagarce stopped and looked; that after Lagarce had stopped at the entrance to the driveway he did not stop again but drove along continuously until he was struck. On cross-examination, Miss Lang, indicating on the plat the place where she was standing, as north of defendant's tracks, and west of the dirt road crossing, repeated that when she first saw Lagarce he was driving east on Manchester avenue; that he stopped north of the first railroad track, which would be north of the north spur track, and then drove on but halted "a little bit" before he got to the main track, that is, the westbound track upon which he was struck; that some cars were standing on the first two spur tracks. Asked if there was not a train, which she saw when she was first down there at the platform, going east, she answered that she could not remember that train at all; did not remember that train going east at all; remembered the one going west, which was the one she saw after it had struck Lagarce. Witness further testified that she had been standing on this platform about ten or fifteen minutes before the accident, waiting for a street car; had no recollection, while she stood there, of hearing the noise of either one of these trains. That, said the witness, was "all a blank" to her. Asked if, after the collision occurred between the train and Lagarce, she recalled looking over to the point of collision and seeing both of the trains, one going east and one going west, she answered that she did not remember anything of any train except the one that struck Lagarce. Asked what there was on these two tracks, the northernmost tracks, or the spur tracks, between where she was and this driveway, she said that there were no cars there; that there was a sort of culvert or trestle and she repeated that she had never noticed the noise of either of the trains, either the one coming from the east or the one going west, until the westbound one struck Lagarce; had not heard this westbound train at all until it passed where she was standing at Knox avenue; then she heard the train coming from the east, the one which struck Lagarce, and she watched that, but she repeated, under close cross-questioning, that she had no remembrance whatever of seeing or hearing any eastbound train, the one going toward St. Louis; may have heard it at the time but could not recall it; did not remember hearing any bell or whistle; if the train going west whistled or rang a bell, she did not hear it nor had she heard a whistle or bell from a train going east; had no recollection of how far the train was from Lagarce when he drove his team onto the track; all she remembered of that train was seeing it strike him,...
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