Miller v. Engle
| Decision Date | 11 January 1915 |
| Citation | 172 S.W. 631,185 Mo.App. 558 |
| Parties | ELLEN BELLE MILLER, By next Friend, ANNIE S. CARPENTER, Respondent, v. C. J. ENGLE and CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. C. H. Mayer, Judge.
Judgment affirmed.
John E Dolman and O. E. Shultz for appellants.
Stigall & Otis for respondent.
--Plaintiff driving in a one-horse buggy, passed under an overhead railroad crossing. Just as she was emerging therefrom, a train ran over the crossing and her horse became frightened and ran away, throwing her out and crippling her for life. She brought this suit for damages alleging that the fright of the horse and resulting injury to her were caused by negligence of the defendants, the engineer and the railroad in charge of and operating the train.
The crossing was inside the city limits of St. Joseph. The surroundings at the scene of the injury are well described in the petition. It charged that plaintiff was driving east in a public highway which was an extension of Commercial street, and upon this highway was constantly a large amount of travel; that said highway "extended east from the end of the South Park car line in said city along the north side of and closely parallel to defendant's track for the distance of one-half mile, thence sharply south, passing beneath defendant's track, which is sustained at that point by an overhead bridge, thence east again along the south side of and closely parallel to the defendant's track, to the city limits;" that in going east along the highway on the north side of the track, and when plaintiff reached the crest of a hill about eighty-three steps west of the crossing, she looked east along the track and saw it was clear; that after passing the crest of the hill it was no longer possible to see east along the track because of a clump of trees in the right of way east of the crossing and north of the track; that before passing under the track she listened to learn of a train's approach but heard no bell nor other signal of an approaching train; that, hearing none, plaintiff turned south and passed beneath the bridge or crossing, and just as she emerged on the south side and was about twenty-five feet from the bridge and before reaching the point where the road turns east again, a westbound passenger train reached said bridge.
The petition then charged: First, that the defendants negligently ran the train at thirty-five miles per hour in violation of an ordinance of said city which prohibited the running of an engine or train within said city at a greater speed than five miles per hour; second, that the defendants negligently and carelessly omitted to give any warning of the train's approach to the crossing and negligently failed to ring any bell, in violation of an ordinance of said city which provided that "the bell of each locomotive engine shall be rung continuously within said city;" third, that when said train reached said overhead bridge, defendants negligently sounded the whistle "unnecessarily, repeatedly, and with unnecessary, unusual, and deafening shrillness," that defendants "unnecessarily sounded said whistle, well knowing, or when, by the use of ordinary care, they could have known, that said sounding of the whistle would frighten and terrify the horse which plaintiff was driving," and that defendants "saw, or by the use of ordinary care could have seen, that plaintiff's horse was being frightened by said whistle and was becoming unmanageable, but that well knowing these facts they continued said unnecessary and careless sounding of the whistle," all of which was in violation of an ordinance of said city forbidding "the blowing of steam whistles on railroad locomotives within the city limits, except in cases of immediate danger."
The petition then alleged that "on account of the aforesaid negligent acts the horse which she was driving became frightened and unmanageable; that it overturned the buggy in which she was driving, throwing her out and violently to the ground, seriously injuring her, etc."
Defendants demurred to the evidence, but this was overruled.
Plaintiff's instructions submitted the case to the jury upon the last two alleged acts of negligence, namely, the failure to ring the bell or give warning of the train's approach to the crossing, and the negligent sounding of the whistle on reaching the bridge. The jury returned a verdict in favor of plaintiff for $ 3500 and defendants have appealed.
It will be observed that both of these grounds charge defendants with the neglect of a statutory duty, i. e., the violation of an ordinance in not ringing the bell and also the violation of an ordinance in blowing the whistle when it was unnecessary. Hence we are not confronted with the question of whether or not the two grounds can be joined in the same count of the petition. And, so far as the failure to ring the bell is concerned, we are not concerned with the question whether, under the circumstances, it was negligent not to ring it, since a violation of the ordinance in reference thereto is negligence per se. [Jackson v. Kansas City etc. R. Co., 157 Mo. 621, 58 S.W. 32; Murray v. Missouri P. R. Co., 101 Mo. 236, 13 S.W. 817.] The blowing of the whistle was likewise negligence per se unless there were circumstances which required, or seemed to require, that it should be blown to obviate danger. If there were no circumstances of danger, or apparent danger, calling for the blowing of the whistle, then we are not concerned with the question whether the omission to ring the bell or the blowing of the whistle were made acts of negligence by reason of the nature of the crossing and the surroundings thereof--the ordinances have settled that question for us by making them negligence in and of themselves. Of course, even if the defendants were guilty of negligence per se in the manner specified, this would not entitle plaintiff to recover unless at least one, or both, of such negligent acts proximately caused the injury; and if only one of them proximately caused the injury; then plaintiff can recover only upon that one.
With regard to the ground of negligence contained in the alleged failure to ring the bell, it would seem that the question whether such failure proximately caused the injury is one that is more important rather than whether or not the defendant railroad is required to signal the approach of its trains to a crossing which is not on the grade of the highway. The ordinance requires the bell to be rung continuously within the city limits, so that the bell should have been rung as it approached this crossing whether it was on, above, or below the grade of the highway. If defendants' liability for failure to ring the bell depends solely upon the question whether or not such failure was the proximate cause of the injury, then the further question would arise whether the appellate court could say as a matter of law, that it did not proximately cause it. For us to say that, is to hold that a position under, or very nearly under, an overhead railroad bridge is no more dangerous or likely to scare a horse than if he were a further distance away and the train was on the ground and level with him. It would seem that all would agree that a horse would be much more likely to scare at a ponderous engine rushing swiftly and without warning over his head than he would if the engine were on the ground. "It is well known that a horse is more likely to scare at a sound made over his head than when the same sound is made on the ground." [Rupard v. Chesapeake & Ohio R. Co., 88 Ky. 280, l. c. 284.] Even a human being under a railroad bridge when a train thunders over it, will instinctively seek a place of greater security elsewhere, and if this feeling exists in the human breast what must the effect of such an experience be upon the mind of an animal? If now the failure to ring the bell, and thus give notice of the train's approach to the crossing led plaintiff to go into a more dangerous situation than she otherwise would have been, we do not have the power to declare, as a matter of law, that such failure was not the proximate cause of the injury. Again, the danger of plaintiff's situation would arise not only because her horse was so nearly under the bridge as to greatly increase the chances of it being frightened, but also from the fact that the want of notice of the train's approach to which she was entitled under the ordinance, resulted in the train catching her unawares and depriving her of the opportunity of taking precautions to insure her safety. The question whether the failure to ring the bell induced plaintiff to go under the bridge at the time she did was for the jury to determine. So also was the question whether a position under, or very nearly under, the bridge was more dangerous than where she would otherwise have been. [St. Louis etc. R. Co. v. Boback, 71 Ark. 427, 75 S.W. 473.] Consequently, the question of whether the failure to ring the bell was a proximate cause of plaintiff's injury was for the jury to settle under all the evidence. The testimony was that after leaving the crest of the hill and for some distance before the crossing was reached, the trees on the right of way prevented plaintiff from seeing the train, so that she had to depend upon her sense of hearing to learn whether the train was coming, that as she travelled this distance she listened but heard no train, of which the bell, if it had been rung, would have warned her. And as the passageway under the crossing was a steep descent with banks on either side, the danger of her horse being frightened by a train passing suddenly and unexpectedly above the animal's head...
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