Lang v. Missouri Pac. Ry. Co.

• Decision Date: 04 December 1905
• Citation: 115 Mo. App. 489,91 S.W. 1012
• Parties: LANG v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

91 S.W. 1012

115 Mo. App. 489

LANG v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

December 4, 1905.

1. RAILROADS — OPERATION — PUBLIC HIGHWAY CROSSINGS—SHIFTING OF CARS.

It is negligence per se for a railroad to send a car over a public crossing without warning and without any means of control, regardless of the impetus which sets the car in motion.

2. SAME—ACTION FOR INJURIES—PLEADING— VARIANCE.

In an action against a railroad for injuries caused by a collision with a team at a crossing, where there was evidence that plaintiff, who was preparing to jump from his wagon, was intercepted by the collision before he could jump and was thrown from his wagon by the force of the blow, there was no variance from the allegations of the petition that by force of the collision plaintiff was thrown into the air and fell to the ground.

3. SAME—ACCIDENTS AT CROSSINGS—CROSSING AS PLACE OF DANGER.

The railroad crossing over a highway is of itself a danger signal, both to persons using the highway and to those operating trains upon the railroad, and each must anticipate the presence of the other at the crossing at any time, and must govern themselves accordingly.

4. SAME — CONTRIBUTORY NEGLIGENCE — ASSUMPTIONS OF SAFETY.

While one using a railroad crossing must be attentive to learn of approaching danger, he is not required to anticipate that the railroad will operate its trains in a negligent manner, and may assume that it will give warning of the approach of trains or cars and will not permit a detached car to run wild over the crossing, and need only exercise such care as a reasonably careful and prudent person would exercise to avoid the dangers incident to a proper operation of trains.

5. SAME—DUTY TO LOOK FOR TRAINS—OBSTRUCTION OF VISION.

Where obstructions exclude a view of railroad tracks at a highway, a person approaching the crossing with a team is not necessarily required, in the exercise of due care, to leave his vehicle and go forward to the track in order to see that he can cross with safety; but, if he is in a position to hear the signals of approaching trains, he may expect that such signals will be given, and may proceed to cross, if, advancing slowly and listening, he hears no signals.

6. SAME—QUESTION FOR JURY.

In an action against a railroad for injuries caused by collision with a team at a highway crossing, whether plaintiff was guilty of contributory negligence held, under the evidence, a question for the jury.

7. SAME—ACTION IN PERILOUS POSITION.

The fact that a person confronted with sudden and unexpected danger of a collision at a railway crossing unwisely attempts to complete his crossing, instead of going back, does not convict him of contributory negligence in law.

8. TRIAL—REQUESTED INSTRUCTIONS — PROPOSITIONS OTHERWISE COVERED.

A requested instruction, which contains a declaration of law embodied in other instructions given on behalf of the party making the request, is properly refused.

Appeal from Circuit Court, Cooper County; J. E. Hazell, Judge.

Action by George Lang against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. L. Clardy and John Cashman, for appellant. John Cosgrove, for respondent.

JOHNSON, J.

This is an action to recover damages for personal injuries sustained by plaintiff at the crossing of a public street and defendant's railroad tracks in the city of Boonville. Plaintiff had judgment in the sum of $3,000, and defendant appealed.

The facts disclosed by the evidence introduced by plaintiff are as follows: Plaintiff, a farmer living six or seven miles west of Boonville, while on his way home, was driving a team attached to an ordinary farm wagon, and at the time of the occurrence in question was standing near the front end of the wagon bed. His position placed him some 15 feet distant from the end of the tongue. In driving westward on Spring street it was necessary for him to cross three tracks of defendant's road. These tracks ran north and south and intersected the street at a right angle. East of the east track, and on the south side of the street, was a grain elevator, and directly across on the north side of the street was another elevator. The east track ran close to both elevators and served as a loading track for them. A box car was standing on this track at the northwest corner of the south-side elevator and extended some six or eight feet into the street. The street declined from the east to the crossing. East of the elevator there was an open space which afforded a view to one approaching from the east of the tracks extending to the south, except the portion of them obscured by the elevator building. When he reached this point of view, plaintiff looked to the south and saw the smoke from an engine several hundred yards away, and from his observation rightly concluded that the engine was not approaching the crossing. He continued on slowly and cautiously, looked both to the right and left, and listened for the approach of trains or cars. His wagon was almost new and made but little noise. Just before crossing the street he checked his team, but did not come to a full stop. He saw and heard nothing to warn him of approaching danger, and proceeded looking, towards the south. The center and main track was 12 feet distant from the east track, and it is asserted that plaintiff, because of the interference of the elevator and box car, could not include it within his range of vision until he passed from behind the car. Consequently, although he was looking towards the south he did not become aware of the approach of the car that ran him down until his horses' front feet had entered upon the main track. At that moment he saw coming from the south on the main track an open coal car, which was running at the rate of five or six miles per hour. It was unattached and unaccompanied by any servant of defendant, and had been set in motion in the process of switching several hundred yards south of the street, and permitted by defendant's servants to run uncontrolled. No servant of defendant was stationed at the crossing to give warning of its approach. When plaintiff caught sight of the car, he vigorously whipped his horses with the lines in an effort to escape by going across, and then, moved by fear of a collision, ran to the back end of the wagon-bed with the intent of jumping to the ground. As he started to jump the car struck the rear end of the wagon, and plaintiff was thrown out and fell to the ground to the east of the track, far enough to miss the passing car. The wagon was pushed around to the west, but the violence of the impact was sufficient to demolish it and tear it loose from the team. Plaintiff was severely injured, but, as no point is made that the verdict is excessive, it is unnecessary to state his injuries.

On the part of the defendant, the evidence goes to show that plaintiff could have seen and did see, the approaching car before he reached a place of danger, and attempted to "run" the crossing; that the car was not "kicked" or "shunted," that is, was not set in motion by the engine and then detached to travel forward, but was given "slack" to start it and then gained headway by force of gravity, the track being down grade towards the crossing. In the view we take of the case, notwithstanding the allegation in the petition that the car was "kicked" or "shunted," it is immaterial whether it was given headway by that operation or was started in the manner claimed by defendant. The means of propulsion used do...