Montgomery v. Missouri Pac. Ry. Co.

• Decision Date: 01 March 1904
• Parties: MONTGOMERY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

79 S.W. 930

181 Mo. 477

MONTGOMERY v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 1, 1904.

RAILROADS—PERSONAL INJURIES—ACCIDENT AT CROSSING—INSTRUCTIONS—GENERALITY— ADMISSIONS AGAINST INTEREST — WATCHMAN—DUTIES—EVIDENCE—SUFFICIENCY.

1. The court charged that the jury should consider the interest which witnesses had in the litigation, and refused to instruct that, while plaintiff was a competent witness, her testimony should be considered with reference to her interest in the result, and given only such weight as the jury thought it entitled to, while her testimony against her interest should be taken as true. There were no admissions in plaintiff's evidence particularly requiring the instruction refused. Held, that its refusal was not error.

2. In an action against a railroad company for personal injuries alleged to have been caused by negligently backing a train over a street crossing without warning, the court charged that in moving its cars across the crossing defendant was required to exercise ordinary care. The instruction then defined ordinary care, and stated that, if defendant was guilty of negligence as defined, the plaintiff was entitled to recover. Other instructions set out the precise facts in the case, and based plaintiff's right to recover on such as were claimed to constitute negligence. Held, that the instruction was not objectionable as too general.

3. In an action against a railroad company for personal injuries from a collision between plaintiff's buggy and defendant's train at a crossing, a requested charge that, if the night was so dark that a moving box car could not be seen 10 feet away, it was plaintiff's duty to stop and look before crossing the track, and that if by reasonable care she could have learned of the approach of the train in time to avoid the injury she could not recover, was sufficiently covered by instructions that if plaintiff knew there was a train in the town, switching, it was her duty to determine whether a train was about to cross the crossing, and that if a person could have seen a box car at such a distance as to be able to avoid a collision it was plaintiff's duty to stop before passing over the crossing.

4. The mere fact that a watchman is at a railroad crossing is insufficient to constitute a warning not to cross, travelers being entitled to a signal of danger, instead of being required to await a signal of safety.

5. Where a railroad company habitually maintains a watchman at a crossing, his absence when a person having knowledge of the custom is injured by collision with a train at the crossing is evidence of negligence on the part of the railroad company.

6. In an action against a railroad company for personal injuries caused by the collision of defendant's train with plaintiff's buggy at a street crossing, evidence considered, and held to justify submission to the jury of the issues of defendant's negligence and plaintiff's contributory negligence.

Appeal from Circuit Court, Cass County; W. W. Graves, Judge.

Action by Bertha B. Montgomery, by next friend, against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R. T. Railey, for appellant. H. A. Jones and A. A. Whitsitt, for respondent.

GANTT, J.

From a judgment in favor of the plaintiff in the circuit court of Bates county the defendant appeals. The action is for damages based on the alleged negligent backing of a freight train across Wyoming street, in the city of Pleasant Hill, Cass county, Mo., in the nighttime, without having a watchman at said crossing to warn travelers of the approach of said train, and without having a brakeman on the rear end of said train to notify plaintiff of the backing of the train over the crossing, and without having a light on the rear of said train to signal its backing. The answer was a general denial and a plea of contributory negligence. Reply denied all new matter. The evidence tends to establish the following facts:

Miss Bertha Montgomery, at the time of the injuries complained of, was 17 years old, and resided with her parents in Pleasant Hill, an incorporated city, Cass county, Mo., with a population of about 2,000 inhabitants. On Sunday night, October 29, 1899, she had attended services at the Christian Church in that city with her older sister, Miss Sadie Montgomery, and a young brother, Clarence. After the service these three started home in a single buggy, drawn by a gentle horse. The church was north of the Missouri Pacific Railway, which divided the business portion of the city from the residence part. Plaintiff's parents lived in the southwest part of the city, and in returning home that night she and her sister and brother were required to cross defendant's tracks on Wyoming street, one of the principal thoroughfares of the city, over which crossing there was much travel, both by pedestrians and vehicles. Across this street the defendant maintained three tracks. The one on the north is designated in the evidence as the "house" or "storage" track, the center one as the "main" track, and the one on the south as the "L. & S.," or Lexington & Southern, track; Pleasant Hill being the point at which the defendant's railroad from Joplin and the south connects with its main line between Kansas City and St. Louis. Owing to the great number of trains operated every day and night over this crossing, and the large amount of travel by the citizens over this street, the defendant company had, for a long time prior to the night of October 29, 1899, kept a flagman at this crossing to warn and advise travelers of the approach of its trains, and to prevent accidents and collisions, and the fact that said flagman was so kept was known to the plaintiff. The night was dark, and it was about 9 o'clock when the plaintiff and her sister and brother reached the crossing. The evidence on behalf of the plaintiff was that when her party reached a point known as "Maloney Smith's Corner," or the corner of Cedar and Lake avenue or Miller streets, about two blocks from the crossing, they heard an engine bell down in the southeast part of the city, the direction in which defendant's railroad ran from the crossing on Wyoming street. Thereupon they checked their horse, and drove in a walk, and listened for a train. Their buggy had no side curtains up at the time. When they reached a point known as "Swarthout's Corner," about 27 feet from the north or house track, they came to a complete stop, and waited some 15 or 20 seconds to ascertain if a train was coming, and, not hearing any signals, either bell or whistle, and not seeing any train or lights to indicate the approach of one, they started on, their horse walking towards the crossing. They testified they looked both ways, and listened, and heard no train, and saw no flagman, and thereupon they proceeded over the crossing. It was agreed that by actual measurement Swarthout's corner was 27 feet from the north track, and it is 20 feet from this north track to the main track, and from the main track to the L. & S. or south track it is 8 feet 4 inches, and the width of each of these tracks is 4 feet 8 inches. Being unable to see or hear any train moving toward the crossing from the southeast or the west, and seeing no lights, and receiving no signal from the watchman or flagman, they drove on, keeping a lookout in both directions. While on the south or L. & S. track, a freight train backed against their buggy, and demolished the buggy, and seriously injured the plaintiff and her sister. The horse was not injured. The evidence tends quite conclusively to show that prior to the plaintiff's reaching the crossing a freight train from Kansas City, consisting of some 12 cars had reached the crossing, and the rear end had been cut off, and was standing on the switch west of the crossing, and the front end of the train, consisting of about 10 cars, had moved across Wyoming street on the L. & S. track with the engine headed southeast, and the lights on it were not discernible by plaintiff or her sister and brother. There was no light on the west end of this portion of the train, and no brakeman on it with a lantern. The engine was some 325 feet southeast of the crossing. They heard no signal of the backing of the train. When plaintiff was knocked out of the buggy she fell under this train moving back west, and she caught hold of an iron bar under the car, and clung to it until she was dragged 105 feet. She was dragged over rocks, cinders, and gravel and thrown against the iron rails. She was wounded and bruised from head to foot, and her right leg and knee permanently injured and lacerated. Her flesh was torn loose from the bone, and the ligaments on the right kneecap and the cap torn loose. The left leg also received a deep gash, and her hip was bruised until it was black. Her head received a deep gash. Her clothing was nearly entirely torn from her body, and her right foot mashed and bruised. She was confined to her bed from October 29th until March. At the time of the trial she was not able to bear any weight on her left leg. All the strength had gone out of it. She had no control over it. She was unable to do any work of any kind, and could not go to school. She testified her suffering had been almost intolerable. A rubber cap had been adjusted to her left knee, and without it she could not walk at all. As to the nature and extent of her injuries she was fully corroborated by two physicians, Drs. Smith and Warden, both of whom testified she was permanently injured, and that the ligaments supporting the kneecap would never be supplied.

The defendant declined to offer any proof controverting the extent of her injuries, and announced that it would stand upon the proposition that it was not liable.

As to the absence of any light on the rear end of the train when it struck plaintiff's buggy, and that there was no flagman on the crossing when the buggy...