Maxey v. Missouri Pac. Ry. Co.

• Decision Date: 12 December 1892
• Citation: 20 S.W. 654,113 Mo. 1
• Parties: MAXEY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

20 S.W. 654

113 Mo. 1

MAXEY v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 12, 1892.

RAILROAD COMPANIES — INJURY TO PERSON ON TRACK — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

1. Plaintiff attempted to cross a railroad track, and was standing on a side track, waiting for a train to pass on the main track. While thus waiting, he was struck by a train on the side track. If plaintiff had looked, he could have seen the train which injured him, when it was a quarter of a mile away. Held, that plaintiff could not recover, though no signal was given by the approaching train.

2. In an action against a railroad company for personal injuries, it is erroneous to charge that plaintiff should recover if he was attempting to cross defendant's track at a place where footmen were accustomed to cross, and as he stepped on the track was struck by an engine which was being carelessly run at a fast and unusual rate of speed without ringing the bell or sounding the whistle, where the crossing was not a public one.

Appeal from circuit court, Moniteau county; E. L. EDWARDS, Judge.

Action by James Maxey against the Missouri Pacific Railway Company. Plaintiff had judgment, and defendant appeals. Reversed.

The other facts fully appear in the following statement by SHERWOOD, C. J.:

Action for damages for personal injuries, caused by plaintiff being struck by the tender of a construction train of the defendant company. The scene of the accident will be more readily understood by the subjoined plat:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The first count in the petition charges that on the 23d day of May, 1890, while plaintiff was in the act of crossing defendant's north side or switch track in the village of Clarksburgh, Mo., "at the regular passenger crossing," defendant's agents and servants carelessly and negligently ran its gravel or construction train over said crossing, with the tender in front of the engine, which struck plaintiff, and cut off his foot, and otherwise injured him. The second count charges that plaintiff attempted to cross defendant's railway "at the regular passenger crossing" on the north side of the depot in the village of Clarksburgh; that before he made said attempt be looked up and down the railway, and saw only the local freight going east; that after he reached the north track of said railway he remained there for said local freight to pull out; that during said interval of time the defendant's gravel and construction train carelessly and negligently ran over said passenger crossing and the public highway, 50 feet west of said passenger crossing, without ringing the bell or sounding the whistle 80 rods distant from said crossing; that the engine was running with the tender in front, and ran against and over plaintiff, etc. Answer, general denial, and plea of contributory negligence, and reply thereto. The trial resulted in a verdict for plaintiff in the sum of $8,000.

On a line about due east and west the defendant company's railroad runs through the little town of Clarksburgh. Nearly midway between two of its streets which cross the railway tracks at right angles the depot is situated. Seventy-five feet west of the point where the plaintiff was injured one of the streets thus crosses the railroad tracks, and the other about the same distance to the east. Parallel with the north line of the company's right of way is another street, 80 feet wide, which intersects the north and south running streets before mentioned. On the north side of this 80-foot street, and facing south upon the right of way aforesaid, stands a row of shops, stores, and buildings. Crossing this 80-foot street, and nearly opposite the depot, are stepping stones, placed there, it seems, by the city authorities, but certainly not by the defendant company, as is admitted by the plaintiff. There is a ditch along the north side of the north or "switch track," and over this ditch was a plank 12 or 14 inches wide, which plank one witness testifies was put there by the railroad company to enable the people to go over to a platform before the depot was built; but there was no crossing there for vehicles. There was another way of reaching the depot, and that was by the street 75 feet west, but this was further than the usual way, and not often traveled. The stones mentioned reached to the culvert thus formed by the plank crossing the ditch, and this passway had been used by people going to the trains some 23 years prior to the accident. From the plank thus laid across the ditch and over the railroad tracks to the depot platform, — indeed, all along the right of way there, — gravel had been placed by the railroad company to ballast its tracks.

The testimony shows that no signal was given by the train which did the injury; that it was an extra train; came from the east; was running at the rate of 15 to 18 miles an hour; and from the vicinity of the accident could readily have been seen, as it came in on the "switch track," something over 500 yards away to the eastward. It is not disclosed by the evidence that there is any ordinance of the town requiring the giving of signals by passing trains, or regulating their rate of speed. The evidence discloses that the plaintiff was thoroughly familiar with the locality of the accident and all of the surroundings, owning, as he did, an interest in a carpenter shop on the north side of the 80-foot street which parallels the defendant company's right of way, and is in full view of it, and it being his wont to cross over to the depot frequently during the day in his business employment. The place of the injury was at the point of intersection of the "regular passenger crossing," as it is termed, and the north edge of the "switch track." Plaintiff had started from the vicinity of his carpenter shop, on the north side of the 80-foot street, and as he left the sidewalk he looked up and saw to the end of the "switch track" to the east, and the track was clear. Then he wended his way across the stepping stones down to the culvert of plank across the ditch, but when he got there a long freight train came in from the west on the main track. This train, being a long one, stopped his further progress, and then almost immediately he was injured by a train coming in on the ...