Lamb v. Missouri Pac. Ry. Co.

• Decision Date: 16 November 1898
• Citation: 48 S.W. 659,147 Mo. 171
• Parties: LAMB et al. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

48 S.W. 659

147 Mo. 171

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

Supreme Court of Missouri.

November 16, 1898.

NEGLIGENCE — QUESTION OF FACT — ACCIDENT AT CROSSING — CONTRIBUTORY NEGLIGENCE — SIGNALS — STATUTORY PROVISIONS — INSTRUCTIONS — EVIDENCE.

1. When the evidence upon material points is conflicting, or when different conclusions may be drawn from undisputed evidence, or if the inferences to be drawn from the evidence are not certain, the question of negligence is for the jury.

2. Plaintiff testified that, after an east-bound passenger train on the second track from her had passed, she looked in each direction, and, not seeing any other train approaching, attempted

to cross, when she was struck by a locomotive running backward in a westerly direction on the track nearest to her.There was further testimony that the headlight was not visible, that no signals were given in time to avoid the accident, and that the locomotive was running from 6 to 20 miles an hour.Held, that plaintiff was not, as a matter of law, chargeable with contributory negligence, although she also testified that the smoke from the passenger train settled around her so as to interfere with her seeing the locomotive, and made contradictory statements as to the degree of darkness, and the circumstances surrounding her, with respect to which other witnesses differed.

3.As Rev. St. 1889, § 2608, requires that the bell of a locomotive be kept ringing on approaching a crossing, a railroad company is not absolved from liability for failure to ring the bell on a conjecture that the person injured would not have heard it, because of the noise and confusion incident to the passage of another train over the crossing immediately before the accident.

4.Where several witnesses testify that the bell of a locomotive was not rung on approaching a crossing, it is not error to refuse an instruction that the failure to ring the bell was not negligence, if the person injured would not have heard it because of the noise and confusion incident to the passage of another train over the crossing immediately before the accident.

5.Possible error in an instruction, requiring that the bell of a locomotive should have been ringing, as required by Rev. St. 1889, § 2608, for a distance of 80 rods on approaching a crossing in a city where streets are not 80 rods apart, is cured by a further instruction that, if the distance which the locomotive went before reaching the crossing was less than 80 rods, defendant was required to ring the bell at any time the locomotive was within 80 rods of the crossing.

Sherwood, Robinson, and Marshall, JJ., dissenting.

In banc.Appeal from circuit court, Cass county; W. W. Wood, Judge.

Action by Jessie Lamb and Harvey Lamb, her husband, against the Missouri Pacific Railway Company for damages for personal injuries sustained by said Jessie Lamb.Plaintiffs had judgment, and defendant appeals.Affirmed.

R. T. Railey, for appellant.W. L. Jarrott and A. A. Whitsett, for respondents.

BURGESS, J.

This is an action by the plaintiff Mrs. Lamb (her husband, Harvey Lamb, joining in the suit with her) for $10,000 damages for personal injuries alleged to have been sustained by her by being run against, knocked down, and bruised about the face, head, and limbs, and her left heel and the under portion of her left foot crushed, by a tender which was attached to one of defendant's engines.The case was tried to a jury, who rendered a verdict in favor of plaintiffs, assessing the damages at $3,000, upon which judgment was rendered.Defendant appealed.

The amended petition, upon which the case was tried, alleges that the injury occurred in the city of Pleasant Hill on the 16th day of June, 1893, under the following circumstances: "That on said day plaintiffJessie Lamb was walking on the public sidewalk on the west side of the public highway and street called `Wyoming Street,' leading from the southern portion of said city in a northwesterly direction, being one of the principal streets in said city, and which crosses said railroad in a northwesterly direction from, and within about one hundred yards of, the defendant's depot in said city, and in the business portion thereof, said plaintiff while in the act of crossing said defendant's railroad track at Wyoming street aforesaid, about eight o'clock and thirty minutes, on the evening of said day, it being dark and cloudy at the time, the defendant, by its agents, servants, and employés, while operating a locomotive engine and tender on said road at said crossing, carelessly, negligently, and recklessly ran said engine and tender backwards over and against plaintiffJessie Lamb; and she was then and thereby struck by said tender, while on said crossing and track, and thrown down against the ties, the stones, and the ground with great force and violence, the said tender and engine passing on and over plaintiff's left foot, whereby and by reason whereof her heel and under portion of her left foot was mashed and mangled.That by reason of the striking and knocking her down as aforesaid she was wounded and bruised about the head, face, chest, body, and limbs, whereby and by reason whereof she was seriously and permanently injured.That the train causing the injury consisted of a locomotive engine and tender.That said train approached said crossing at great speed, to wit, at the rate of 20 miles per hour, running with said tender in front of said engine, there being coal and other substances on said tender.The said train was run in such a way that the headlight of the locomotive engine was hid from plaintiff's view by the said tender in front, and the said coal and other substances on said tender.That defendant's said servants in charge of said engine and tender carelessly and negligently omitted to give any signal or warning by bell or whistle, or otherwise, before reaching said crossing, as required by statute in such case made and provided.That by reason of the darkness of the night, and of the light of the locomotive engine being obstructed by said tender and by the coal and other material as aforesaid, she was unable to see the approach of the engine and tender; and that on the account of the failure of defendant's servants and agents in charge of said engine and tender failing and neglecting to ring the bell or blow the whistle, or give any warning or signal whatever, she was unable to hear the approach of said engine and tender until so near her she was unable to, and could not, make her escape and avoid the accident aforesaid."The defenses were a general denial and contributory negligence.

Pleasant Hill is a city of something over 2,000 inhabitants.The injury here sued for occurred in that city on the evening of June 16, 1893, where Wyoming street crosses defendant's track.This track runs from the southeast in a northwesterly direction, and divides the business from the residence portion of the city.Mrs. Lamb lived on the north side of the track.She had lived in the city about 26 years, and was familiar with the streets, and their crossings with the railroad track.On the evening of the accident she had occasion to call at Rayborn's grocery store, on the south side of the track, and left there for home about 8:15 p. m. of that evening.It is about 175 feet from this store to the first railroad track, in the direction plaintiff had to go to get home.There are some five or six railroad tracks across the street at this point, and a large number of trains were passing each way every day.When she got within 4 or 5 feet of the first track, she stopped.She then heard the whistle of the passenger train from Kansas City, which was about due, and waited for it to cross Wyoming street, to the east, before crossing the track.This train was on the second track from the south, where Mrs. Lamb was standing, waiting for it to cross the street.When it whistled it was about one-fourth of a mile west of the crossing.When it had crossed the street, and the rear end of the hindmost car had about reached the east side of the street Mrs. Lamb attempted to cross the railroad track, when an engine and tender passed over Wyoming street, running backward west on the south track at a rate of speed variously estimated by the witnesses at from 6 to 20 miles per hour, and ran over her, bruising her head, face, and limbs, crushing her left heel and the under part of her left foot, and rendering her a cripple for life.As to whether the bell on the engine to which the `tender was attached was being rung at the time of the accident, the evidence was conflicting, but no other signals were given.There were no lights upon the tender, and plaintiff could not see the lights on the engine.Nor was there any one in charge of the engine and tender at the time, except the engineer.Mrs. Lamb testified in her examination in chief that she heard the passenger train whistle, and waited for it to pull in, and then looked to the west, then to the east, then back to the west, and attempted to cross the track, when the engine and tender struck her; that she heard a whistle, and just about that time — almost instantly — it struck her; that no bell was being sounded on the engine when the tender struck her.On cross-examination she stated that when she first stopped at the crossing of the railroad track she was looking towards the depot, and that there was nothing to obstruct her view of the depot, express office, and water tank; that there was a dim light burning in the depot, and also in the express office; that she looked west before the passenger train came down, and saw some box cars standing there, about 50 yards away, without any engine to them; that she could see those cars, but that it was lighter in the west than in the east; that she looked east after the passenger train had gone by her, and again west, before attempting to cross the track; that she could have seen the engine and tender 50 yards to the...