Lane v. Missouri Pac. Ry. Co.

• Decision Date: 30 December 1895
• Citation: 33 S.W. 1128,132 Mo. 4
• Parties: LANE v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

33 S.W. 1128

132 Mo. 4

LANE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

December 30, 1895.

In banc.

Dissenting opinion. For majority opinion, see 33 S. W. 645.

BARCLAY, J.

My concurrence is not given to the ruling that plaintiff has no case to submit for trial. Defendant does not deny that there was evidence warranting a finding of its negligence in omitting to give a statutory signal, on approaching the crossing. Under the statute (section 2608, Rev. St. 1889), proof of such omission, and of the accident following at the crossing, make out a prima facie case (Crumpley v. Railroad Co. [1892] 111 Mo. 152, 19 S. W. 820), unless, of course, plaintiff's evidence also shows, as a conclusion of law, that the omission of a signal was not the cause of the injury, as that statute fairly intimates. But the result of the judgment of my learned colleagues here is to declare that the evidence permits no other reasonable inference than either that the deceased was negligent as a mater of law, or that the omission of the statutory signal of the coming train could not reasonably be found to be the cause of Lane's death.

1. As to the negligence of Lane: Many of the facts in evidence have, no doubt, a strong tendency to prove contributory negligence on his part. But the precise legal questions as to Lane's negligence which the record raises at this stage of the action are — First, whether or not the facts in evidence exclude any other reasonable conclusion than that he was negligent; and, secondly, even if defendant's evidence is held uncontradicted, whether the question of its credibility or sufficiency to support the defendant's plea of contributory negligence is not a question for the jury to decide, as an incident of the right of trial by jury guarantied by the Missouri constitution, in view of the statute above cited, which casts the burden of proof on defendant where there has been an omission of a statutory signal, and an injury following which may reasonably be found to have been caused by that omission. Let us examine the statement of defendant's locomotive engineer to see if it affords ground for a fair and rational inference that Lane was not negligent in conduct at and immediately before the time of the collision. The engineer testified that he was at his post in the cab, on the right (or west) side of the locomotive. His account (on his direct examination) of the performance of Lane and of his team is as follows: "The first that I saw of Mr. Lane or the team was that I saw the team when we were about 75 or 80 feet away. It is very hard and difficult to tell the exact distance of a train when you are running after night. As soon as the headlight shone on the grass, I saw the team, and they were on the run. Just as soon as I saw the team, I put on the emergency to stop the train. I did not have time to whistle the alarm whistle, or anything, until the team and engine came together. From the appearance of the engine, they struck near the front end of the engine. I stopped the train just as soon as the brakes would stop it. I should judge that it ran about 500 feet after it struck the team. I did not see the wagon. I just saw the horses. I should judge, when I first saw the team, it was within 10 or 15 feet of the track, and the engine was about 75 feet from the crossing. It was a dark night. I don't think, running at the rate of speed I was that night, you could discern an object over 150 or 250 feet ahead of you. I should think that the headlight would cast its rays from 15 to 20 feet on either side of the track. * * * It has a tendency to blind. It makes it more difficult to see an object outside of the rays of light. Just as soon as the train stopped I notified the conductor and train porter, and we went back to the crossing. There was the cattle guard there, and both the horses and the man were carried clear over the cattle guard, — knocked clear over, inside of the right of way fence, but I could not tell what distance. The number plate on the front end of the engine was broken, and there was one of the rod cups broken on the forward pin. There was blood and hair between the bumper beam and forward cylinder on the right-hand side. The bumper beam projects at the head of the cylinder. There is 24 inches space between the steam chest and the bumper beam." On cross-examination he stated that he "took it that the team was running away at the time that it was struck"; and that the indications on the engine showed "that the first horse caught between the bumper beam and the cylinder" of the locomotive. The above testimony was given on behalf, and at the instance, of defendant. But, in considering whether or not plaintiff has made out a case to go to the jury, it is proper to give plaintiff the benefit of all the facts, and of every reasonable inference that they will bear, at the time that question arose and was finally...