Lamb v. Missouri Pac. Ry. Co.

• Decision Date: 16 November 1898
• Citation: 51 S.W. 81,147 Mo. 171
• Parties: LAMB et al. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

51 S.W. 81

147 Mo. 171

LAMB et al. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

November 16, 1898.

Dissenting opinion. For majority opinion, see 48 S. W. 659.

SHERWOOD, J.

Action for $10,000 damages for injuries resulting to Mrs. Lamb, the beneficial plaintiff herein, by being struck by a tender which was attached to an engine belonging to defendant company, and which knocked plaintiff down, bruising her about the head, face, and limbs, and the engine and tender ran over and crushed the heel and under portion of her left foot. The answer of defendant was a general denial, coupled with a plea of contributory negligence. The reply was a general denial. The petition counted on the night of the occurrence of the injury being "dark and cloudy." In her original petition, "smoke" was alleged as an additional ingredient of injury; but this element was eliminated from the amended petition, because of an instruction given at the instance of defendant, to the effect that, if plaintiff's view was obstructed by smoke or otherwise, it was her duty to have waited until such smoke or other obstruction had been removed before attempting to cross the track, and a failure to do so would preclude a right of recovery. The accident occurred on the 16th day of June, 1893, about 8:20 o'clock in the evening of that day, in the city of Pleasant Hill (a city of over 2,000 inhabitants), at a public crossing of Wyoming street, where that street crosses the railroad track of defendant company, which track runs through the city from the southeast, in a northwesterly direction, and divides the business from the residence portion of the city. Wyoming street runs north and south through the city, and across the tracks (two in number) at that crossing. A plat and photographs which will accompany this opinion will give an accurate idea of the scene of the accident and its surroundings.¹ It will be noted in this connection that the two tracks involved in the evidence preserved in the record are parallel, and for a long distance entirely straight, — for a distance of a quarter of a mile to the east, — and there are no obstructions to the vision along the lines of the first and second tracks. Along those tracks a great many trains were accustomed daily to pass backward and forward. Mrs. Lamb was 26 years of age; was born and reared in Pleasant Hill; was perfectly familiar with the crossing and with the running of the trains, and, living, as she did, north of the railroad tracks, was accustomed to cross them at this same crossing two or three times a day; and a great many trains were passing as plaintiff usually went over the crossing, and this had been the case with her for years. This crossing was west of the depot about two-thirds of a block, or about 322 feet. There is a sidewalk on the west side of Wyoming street, which crosses these tracks. At this point the first track is a switch track, on the south, and the passenger track is next to it on the north. It is 13 feet and 8 inches from the south rail of the second or passenger track to the south rail of the first or switch track; and each track is 4 feet 8 inches wide. On the evening in question she had been over on the south side of the railroad to Rayburn's grocery store, about 175 feet to the south of the first railroad track, and left there for the purpose of returning home. Accordingly she walked north on the sidewalk on the west side of Wyoming street until she approached within four or five feet of the south rail of the first (south or switch) track. There she stood for three or four minutes, waiting, as she says, for the passenger train then about due to come in from the west, or Kansas City, and go on east across the sidewalk on the west side of Wyoming street, before she would venture to cross. Pretty soon the expected passenger train came in view. The engine whistled at the usual place, west of the Wyoming street crossing, 80 rods, or 1,320 feet, from the place where plaintiff was standing. This passenger train traveled on the second track north of plaintiff, proceeding east to the depot. While this was occurring, and when the passenger train, the cars of which were brilliantly lighted, had almost crossed over the crossing at Wyoming street, the last car having gotten about east of that street, an engine and tender came from the east along the first (south or switch) track, on the immediate south of which plaintiff was then expectantly standing. This engine and tender, running backwards, was going west, and crossed Wyoming street running at a rate of speed variously estimated at 6 to 20 miles per hour. It is asserted in plaintiff's behalf that no signals were given by the engine going west, but on this there is the usual conflict. She testifies that, before she stepped on the first or nearest track to her, she looked both ways, up and down the track, and did not see or hear the engine, and then stepped on the first or switch track, when "almost instantly" she heard the engine whistle, and then the tender immediately struck her, knocking her 25 or 30 feet westward, etc., and that no bell was sounded on the engine in question. And she also testified that, just before the passenger train came down, she looked to the west, and saw some box cars there, some 50 yards distant on the first track, and that her vision was equally unobstructed toward the east, and that she could have seen the engine and tender 50 yards to the east, when she looked in that direction, had it not been for the smoke and dust between her and the engine and tender, and that there was no other obstruction, that she knew of, to have prevented her, when standing four or five feet from the first track, from seeing an engine on that track clear down to the depot, and that the smoke came from the passenger train. Further on she testifies that the smoke, and the dusky evening and the darkness of the night prevented her from seeing the engine and tender, and that when she first went down to the track, and as the passenger train was coming in, she looked down east, and saw Duncan's building, the depot, and the lights in the windows, and that, if there had been no smoke or dust, she could have seen an engine and tender 50 feet to the east as they came towards her. Asked further with reference to the crossing of the passenger train, she says that when she last saw it it was still moving down; that then she looked east, but saw only the passenger train; that, immediately after the passenger train passed by her, she looked east, and then west, and then stepped on the track. Asked whether at that juncture she could see the engine, she answered: "I do not know whether I noticed whether I could see the engine or not. I saw the passenger lights." In no place in her testimony does it appear that she looked down the first track, near which she was standing. She may have looked east, — that is, let her eye follow the passenger train, and the second track on which it was moving, — without looking at the first track at all. She also testifies that as she was standing at the place beside the track at which she stopped, and before the passenger train pulled in, there was nothing to have prevented her from crossing the tracks in safety. She says, indeed, that, even after the passenger train got within 100 yards of the crossing, she had time to have made the crossing, but she felt safer waiting, although it was less than 25 feet from where she was standing to the north rail of the passenger track, and although night was approaching. In addition to plaintiff's testimony already set forth, her testimony had been preserved as given at the last or second mistrial. Asked at that time if she had seen the engine before it struck her, she said: "I do not remember seeing it until it struck me. I heard the sound of the whistle." Asked how far it was when it whistled, — whether 6, 8, or 10 feet, — she said: "It seems it was closer than that. It may have struck me right at once. I do not know." Asked again if it might have been off 8 or 10 feet when it whistled, she said, "No;" if it had, she could have gotten off the track. On that former trial she was also questioned about the smoke about which she had testified, and stated that it settled in the direction where she was, — right close to her. Upon this, being asked if the smoke remained clear up to the time she was hurt, she said she did not remember whether it did or not, and that she did not pay any more attention to it after she first looked and saw it there. On a former occasion the deposition of plaintiff had been taken, and she stated that, when the passenger train had gone by, she started to cross. Asked how far she had gotten before being struck, she answered, "One step; one foot on the track."

Mundy, a negro, came along as plaintiff was standing where she had stopped, saw her there, and then crossed over, and, looking back, saw her still standing there, looking towards the passenger train as it was coming in. This witness says that as he crossed over the tracks he looked east, and saw the engine and tender that afterwards struck plaintiff coming back (that is, coming west); that they were about the lower crossing (Commercial street), a block distant; that this was east of the depot; that there was no obstruction at this time between plaintiff and the engine and tender, or between witness and those objects; "that anybody that was looking that way, and watching for anything to look at, could have seen it."

Hayes, another witness, who crossed the tracks with Mundy, says that he and Mundy crossed the tracks together in front of plaintiff, and that in crossing he looked east, towards the depot, and saw the engine and tender down back of Duncan's, and moving west, and that it was in plain view from where witness was, and that there was nothing in the way to obstruct plaintiff's view of the engine and tender; that they ran up to the crossing just at the same time the passenger...