Landrum v. St. Louis, I.M. & S. Ry. Co.
| Decision Date | 02 July 1915 |
| Docket Number | 13205 |
| Citation | 178 S.W. 273 |
| Parties | LANDRUM v. ST. LOUIS, I. M. & S. RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court of Common Pleas; R. G. Ranney Judge.
“ Not to be officially published.”
Action by D. G. Landrum against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.
J. F Green, of St. Louis, N. A. Mozley, of Bloomfield, and R. T Railey, of Jefferson City, for appellant.
Abington & Phillips, of Poplar Bluff, for respondent.
This is a suit for damages accrued to plaintiff on account of personal injuries through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.
It appears plaintiff was injured by a collision between a switch engine operated in defendant’s railroad yards and a buggy in which he was riding at the crossing of Ash street, in Poplar Bluff. Ash street is a public thoroughfare of Poplar Bluff, and runs substantially east and west, while defendant’s railroad tracks, some seven or eight in number, run substantially north and south. Plaintiff is the proprietor of a dramshop situate at the corner of defendant’s right of way and Ash street; that is, about 10 feet east of defendant’s eastmost track and on the south side of Ash street.
The evidence is that plaintiff, while calling on another dramshop keeper several blocks away, met with one Tucker, a bartender. Tucker invited him to ride in his buggy from the saloon where they met to plaintiff’s place of business, and the two started together. The hour was about 8:45 in the evening, and the date July 18th. The buggy, a light, one-horse conveyance, was equipped with rubber tires and of the ordinary runabout character, that is, without inclosed top. Tucker drove the horse, and plaintiff sat beside him in the single seat. It appears they moved east on Ash street until reaching the point of crossing defendant’s several tracks immediately west of plaintiff’s saloon. It appears defendant maintained as many as seven tracks in its yards at this place, and its depot was about 300 feet distant and north from the crossing. The electric lights of the city of Poplar Bluff were not aglow at the time, and it is said the moon was not shining, though the night was an ordinary one; that is, it was not raining, and there is no evidence that it was cloudy. Plaintiff testified that on reaching the first track, that is, the track farthest west, Tucker stopped the horse for an instant, and both parties looked up and down the tracks and listened also for an approaching engine; moreover, that he personally cautioned Tucker, the driver, "This is a dangerous place; we will have to look out," and Tucker said, "That is right." "I told Mr. Tucker that was a dangerous crossing there; that we would have to look out for cars." Besides as above, plaintiff testified concerning the approach upon the track:
The evidence is that the horse was moving in a slow walk, as before said, attached to an open buggy equipped with rubber tires, and the view was open and clear, save for the darkness that prevailed, and there is nothing to suggest that the darkness was extraordinary or other than that which usually prevails in the absence of street lights when the moon is not shining. The evidence is that the place was quiet, and no considerable noise was emitted from any source. Plaintiff testifies also that after driving upon the first track, that is, the track farthest west, the conveyance proceeded slowly across the tracks, during which time he continued to look and listen up and down the tracks until the collision occurred, and that he neither saw nor heard the locomotive even at the time of the collision. Plaintiff says, too, that they traveled on the several tracks, that is, in crossing the six or seven tracks, as much as 35 feet after entering on the first track before the collision occurred on the track farthest east. While the buggy was yet on the last track, that is, the track farthest east, and within 25 feet of the front door of plaintiff’s saloon, and in the light of it which was emitted through the windows, defendant’s switch engine backing to the southward was discovered by Tucker when, as he says, about 10 or 15 feet away. Plaintiff says he did not see the locomotive at all, but Tucker whipped up the horse in an effort to escape the collision. The tender of the locomotive collided with the rear wheel of the buggy, overturned it, and precipitated plaintiff some 20 feet, so that he fell almost in front of his dramshop, receiving serious and painful injuries. The evidence tends to prove the locomotive was running from 6 to 8 miles per hour backwards, and bore a red signal light, an ordinary railroad red light lantern, on the top of the tender, so that its approach was observed by other witnesses who testified in behalf of plaintiff. The locomotive was not equipped with a headlight on the rear end of the tender, as is usual with switch engines, but this red lantern rested on the top of the tender at its rear end, that is, on the extreme of that portion of the locomotive approaching the crossing.
An ordinance of the city of Poplar Bluff requiring the ringing of the bell or sounding of the whistle of a locomotive on approaching the crossing of any street of the city is relied upon for recovery, and the evidence is that defendant breached its obligation as to this. Several witnesses say that neither the bell nor whistle attached to the locomotive was sounded before approaching the crossing of Ash street on this occasion, and the negligence of defendant is established beyond controversy. Indeed, it seems to be conceded here that the evidence reveals defendant was remiss in its duty, but it is earnestly argued plaintiff may not recover, for the reason that his own negligence concurred at least with that of defendant in causing the collision, and we are persuaded to that view. Plaintiff testified that he was entirely familiar with the crossing. Indeed, he maintained his dramshop opening on the identical street adjacent to the railroad track, and within about 25 feet of the place where the collision occurred, and was about there every day. The force of the collision precipitated him from the buggy almost to the front door of his saloon. He says, too, the tracks were straight, and the view unobstructed except for the darkness. The buggy crossed as many as six tracks, and covered a distance of as much as 35 feet, according to plaintiff’s evidence, before the collision occurred, which came about as its rear wheels were moving off of the last track, the track farthest east. At this point the evidence is the light from plaintiff’s saloon and the Southern Hotel building, in which the saloon was situate, shone upon the track and the street so as to illuminate the crossing slightly, and it is argued that this obscured the view beyond. But neither plaintiff nor Tucker say that this light prevented them from seeing farther north up the track from whence the engine came. Indeed, plaintiff insists that he neither saw nor heard anything at all, though he looked and listened continuously, and did not so much as see the locomotive when the collision occurred, while Tucker says that he could see the rails of the tracks for 300 feet to the north, and did not observe the approach of the engine, though it was from thence it came. Indeed, according to plaintiff’s evidence, he appears to have observed nothing, though he says he looked and listened all the time. He repeats over and over again that he knew switch engines operated on the tracks there, and that all of them emit some noises. Touching this matter, the following questions and answers appear in his testimony:
"Q. I say, if it was running, it was making the usual noise that an engine makes in running over that track?
A. I did not hear any noise.
Q. I know; you said that several times.
A. Yes, sir.
Q. I want you to answer the question.
A. I don’t think hardly anything can run without making noise."
Plaintiff then testifies both his sense of hearing and sight are good. Touching the situation and the view, the following questions and answers appear:
"Q. There were no obstructions at all?
A. No, sir.
Q. It is an open, plain, straight track?
A. Did not see a thing, nothing at all; everything looked a blank; could not see a thing."
Touching the light, the following questions and answers appear:
"Q. And was the moon immediately east of this Southern Hotel?
A. Well, sir, I could not say; I never noticed.
Q. You never saw the moon?
A. No, sir.
Q. Never saw the moon or anything else, did you?
A. I did not see the moon.
Q. Did you see the hotel?
A. I saw the light of the hotel.
Q. Is that all you saw?
A. I saw the bar and the hotel. I could see the bar of the hotel.
Q. From the north hotel door, how far out north did the light extend down the tracks?
A. Well, it was shining clear across the tracks. * * * Well, it shined right straight out in front, due north across the track, the light of the hotel, and the light of the bar also.
Q. You say the light shone right out on Ash street?
A. Yes, sir.
Q. You don’t mean to say it stopped on Ash street and made everything else dark?
A. It went clear across the street.
Q. Shone up on the track north of the crossing?
A. I...
To continue reading
Request your trial