McNamara v. Chicago, R. I. & P. Ry. Co.

Citation103 S.W. 1093,126 Mo. App. 152
CourtCourt of Appeal of Missouri (US)
Decision Date24 June 1907
PartiesMcNAMARA v. CHICAGO, R. I. & P. RY. CO.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by James B. McNamara, by J. B. McNamara, his next friend, against the Chicago, Rock Island & Pacific Railway Company. Defendant appeals from a judgment for plaintiff. Affirmed.

Brown & Dolman, for appellant. Thomas F. Ryan, for respondent.

JOHNSON, J.

Plaintiff, a minor, sues by next friend to recover damages for personal injuries he alleges were caused by the negligence of defendant. The jury returned a verdict in his favor in the sum of $1,999, and the cause is here on defendant's appeal.

The injury occurred about 8 o'clock in the morning of April 3, 1906, at the crossing of switch tracks, operated by defendant, and Patee street, a public thoroughfare in the city of St. Joseph. Plaintiff, at the time, was employed in driving a one-horse delivery wagon for a concern engaged in the furniture business. Patee street runs east and west and midway between Fourth and Fifth streets is crossed by five switch tracks which form a part of defendant's terminal system in St. Joseph. The west one of these tracks, as it comes from the north, bears slightly to the east, so that the angle made by it with the street lying west of it is somewhat acute. Immediately west of this track, and on the north side of the street, is a large business house occupied by the Mokaska Coffee Company, which extends to Fourth street on the west. Its south wall is on the north property line on Patee street. A shipping platform 26 feet long, 4 feet high, and 4 feet wide adjoins the building on the south. The distance between the west rail of the Mokaska track (the name given the west switch track) and the building is 4 feet at the point where the track intersects the north line of the street, and in coming from the north the track converges towards the building as it nears that point. Patee street is 50 feet wide between property lines. On its south side, opposite the Mokaska Building, are the freight depot and tracks of the St. Joseph Terminal Company. A short distance east of the east switch track and on the north side of the street, defendant maintains a small house for the use of a flagman employed by it at that crossing. Plaintiff, who at the time of the occurrence in question was 15 years old, drove south on Fourth street, and thence east on Patee. When he turned the corner, he looked for the flagman whose station we have described, but owing to obstructions, could not see him. He was following a wagon and was in the act of passing it on the north side when it turned south into the terminal yards. Plaintiff was not over 20 feet from the Mokaska track when he first saw the flagman. He then was driving in a walk, and his wagon was 18 or 20 feet south of the north property line. He looked to the north, but saw no train approaching; listened, but heard no bell; and, observing that the flagman was talking to a companion and gave him no signal to stop, concluded the way was clear, and suffered his horse to proceed to the crossing. As the horse reached the Mokaska track, a switch engine coming from the north on that track emerged into view from behind the building. The witnesses do not agree about the rate of speed at which it was moving, but there is evidence tending to show that its speed was approximately 10 miles per hour, and many of the witnesses say the bell was not ringing. When discovered by plaintiff, the engine was too close to avoid a collision. In his endeavor to escape, plaintiff urged the horse forward; but the engine struck the wagon, tore it loose from the horse, and carried it to a point about 20 feet south of the street, where it was overturned on the west side of the track. Plaintiff remained in the wagon and received severe injuries, the nature of which it is unnecessary to state, as no claim is made that the verdict was excessive, or that error appears in the instruction given to the jury on the measure of damages. Instantly after discovering the presence of the approaching engine, plaintiff saw the flagman wave his flag, and heard him shout; but these warnings came too late to be of any service. The flagman was 79 years old and was afflicted in one of his legs with rheumatism to the extent of seriously affecting the usefulness of that member. He stood in the sidewalk space in front of his house, and did not change his position during the progress of the events described. An ordinance of the city which was admitted in evidence provides that "no locomotive engine * * * shall be driven, propelled or run upon or along any railroad track within said city at a greater speed than the rate of five miles per hour," and that "the bell of each locomotive engine shall be rung continually while running within said city." The facts detailed are those on which plaintiff bases his right of recovery.

On the part of defendant, the evidence tends to show that the bell was rung continuously; that, when plaintiff was observed to be in peril, an immediate effort was made by the engineer to stop; that, at the time of the collision, speed had been reduced to about two...

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27 cases
  • Perkins v. Kansas City Southern Ry. Co., 29380.
    • United States
    • United States State Supreme Court of Missouri
    • April 2, 1932
    ......Railroad, 199 S.W. 273; Hatten v. Ry. Co., 233 S.W. 281; Nicholson v. Railroad, 297 S.W. 998; Genglebach v. Payne, 236 S.W. 1092; McNamara v. Railroad, 126 Mo. App. 152, 103 S.W. 1093; Wack v. Railroad, 175 Mo. App. 123, 157 S.W. 1070; Yonkers v. Railroad, 182 Mo. App. 558, 168 S.W. 307; ...273; Highfill v. Independence, 189 S.W. 804; Saulan v. St. Joe Ry. Co., 199 S.W. 714; Miller v. Eagle, 185 Mo. App. 578; Boyce v. Chicago Ry. Co., 120 Mo. App. 168; Gibler v. Quincy Ry. Co., 129 Mo. App. 93; Carrol v. Railroad, 60 Mo. App. 468; Clark v. Hammerle, 27 Mo. 55; Johnson v. ......
  • Wack v. St. Louis, Iron Mountain & Southern Railway Company
    • United States
    • Court of Appeal of Missouri (US)
    • June 3, 1913
    ...... on the part of the decedent's husband, is not well. founded. Montgomery v. Railroad, 181 Mo. 507;. Railroad v. Volan, 81 S.W. 130; McNamara v. Railroad, 126 Mo.App. 152; McGrath v. Railroad, . 63 N.Y. 529, 530; Railroad v. Hutchinson, 120 Ill. 587; Giddings v. Railroad, 133 ... second time while upon the track, but rather the question. concerning that matter is frequently one for the jury. [See. Giddings v. Chicago, R. I., etc., R. Co., 133. Mo.App. 610, 113 S.W. 678; Elliott on Railroads, (2 Ed.),. sec. 1166a.]. . .          Moreover. a ......
  • Cuccio v. Terminal Railroad Association
    • United States
    • Court of Appeal of Missouri (US)
    • May 7, 1918
    ...... this state and the person approaching such crossing has a. right to rely upon the invitation of the open gates. McNamara v. Railroad, 126 Mo.App. 152, 159-160;. Edward v. Railway Co., 94 Mo.App. 36; Wack v. Railroad, 175 Mo.App. 111, 122, 123; Yonkers v. ......
  • Wack v. St. Louis, I. M. & S. Ry. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • June 3, 1913
    ......See Giddings v. Chicago, R. I., etc., R. Co., 133 Mo. App. 610, 113 S. W. 678; Elliott on Railroads (2d Ed.) § 1166a. .         Moreover a pedestrian approaching a ...Edwards v. Chicago & Alton R. Co., 94 Mo. App. 36, 44, 67 S. W. 550; McNamara v. Chicago, R. I., etc., R. Co., 126 Mo. App. 152, 103 S. W. 1093; Jennings v. St. Louis, I. M., etc., R. Co., 112 Mo. 268, 20 S. W. 490. Therefore, ......
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