Moore v. Wabash R. Co.

• Decision Date: 01 May 1911
• Parties: MOORE v. WABASH R. CO.
• Court: Missouri Court of Appeals

137 S.W. 5

157 Mo. App. 53

MOORE v. WABASH R. CO.

St. Louis Court of Appeals. Missouri.

May 1, 1911.

1. RAILROADS (§ 350)—ACCIDENT AT CROSSING — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE.

In an action for personal injuries from a collision of a locomotive with a surrey in which plaintiff was riding, evidence held to present a question for the jury whether plaintiff was negligent.

2. RAILROADS (§ 330)—ACCIDENT AT CROSSING — CONTRIBUTORY NEGLIGENCE — RELIANCE ON CARE OF DEFENDANT.

One approaching a railroad crossing is not required to anticipate the company's negligence, but may rely on its performance of duty, and assume that, if a locomotive is in the immediate vicinity, it will comply with ordinances as to rate of speed and as to signals of approach.

3. RAILROADS (§ 350)—ACCIDENT AT CROSSING — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Though one approaching a railroad track in a vehicle is required to approach with caution by looking and listening till an obstruction of view is passed and keeping his conveyance under control, one is not careless as a matter of law in failing to leave his place in the conveyance and go on the ground to make a survey.

4. RAILROADS (§ 350)—ACCIDENT AT CROSSING — QUESTION FOR JURY — PROXIMATE CAUSE.

In an action for injuries from a collision between a locomotive and a vehicle at a crossing, evidence held to present a question for the jury whether the violation of a city speed ordinance by the railroad company was the proximate cause of injury.

5. RAILROADS (§ 351*)—ACCIDENT AT CROSSING —INSTRUCTIONS—PROXIMATE CAUSE.

An instruction, requiring the jury to find that plaintiff's injury resulted as a direct consequence of the excessive rate of speed of defendant's locomotive, is not subject to the objection that it fails to require the jury to find that the excessive speed was the proximate cause of the injury.

6. TRIAL (§ 296)—INSTRUCTIONS—CONTRIBUTORY NEGLIGENCE.

In an action for an accident at a railroad crossing, instructions requiring the jury to find that plaintiff exercised ordinary care are not erroneous for failure to define contributory negligence, especially where defendant's instructions on that question sufficiently enlighten the jury.

7. DAMAGES (§ 38) — ELEMENTS — LOSS OF EARNING CAPACITY.

In an action for personal injury to a child nine years old, damages may be awarded for loss of capacity for earning a livelihood after attaining his majority, though there was no evidence as to his financial condition nor as to whether his earning capacity was depreciated.

8. DAMAGES (§ 132)—EXCESSIVE DAMAGES— PERSONAL INJURY.

Where plaintiff suffered a complete complex fracture of the femur, a fracture of both bones in the left leg below the knee, a slight injury to his knee, and the stiffening of his ankle permanently, and he was rendered unconscious and dangerously ill for a number of days, and suffered a hemorrhage from the ear and a severe shock to his nervous system, and his left leg was 1½ inches shorter than the right, an award of $7,000 damages is not excessive.

Appeal from Circuit Court, Audrain County; Samuel Davis, Special Judge.

Action by Raymond Moore, by next friend, against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. L. Minnis and Robertson & Robertson, for appellant. D. A. Murphy and Barclay, Fauntleroy & Cullen, for respondent.

NORTONI, J.

This is a suit for damages accrued through the negligence of defendant. Plaintiff, an infant suing by his next friend, recovered, and defendant prosecutes the appeal.

Plaintiff received his injury while crossing defendant's railroad track on a public street within the city of Mexico as a result of defendant's locomotive engine colliding with the surrey which he was driving. The view of the railroad track for a considerable distance east of the street crossing was obscured by a luxuriant growth of weeds, so that those traveling from the north on the highway were unable to discern the approach of trains, unless it was through the sense of hearing, and in this instance the locomotive which collided with the surrey was single and alone, without a train attached, so that it emitted but slight noises to suggest its approach. Though at the time of his injury plaintiff was but a nine year old boy, he was accustomed to hitching up and driving the family horse to the surrey, which course he had followed for more than a year. Plaintiff was driving the surrey to the southward on Morris street in Mexico, when the collision occurred through the approach of defendant's locomotive from the east, while he sat on the right-hand, or west, side of the front seat of the vehicle. He was accompanied by his sister and two other young girls, all of whom were en route to a picnic outside of the city. Defendant's railroad track runs east and west through the city of Mexico along, immediately south of, and adjacent to the right of way of the Chicago & Alton Railway Company, the tracks of which, it is said, are situate only 99 feet north of the northmost rail of the Wabash. In the construction of the two railroads, immediately adjacent to each other running east and west through the western portion of the city of Mexico, a considerable excavation was made for each and the earth removed therefrom deposited between the two tracks for several hundred feet east of, and adjacent to, Morris street. Morris street, a public thoroughfare of the city, runs north and south and crosses both railroad tracks near the western limits of the town. On the date of the accident, July 2d, the embankment between the two railroads was covered with a luxuriant growth of weeds to within 14 or 15 feet of the north rail of defendant's tracks. Plaintiff, driving an open surrey with one horse, was moving southward on Morris street, the horse in an ordinary walk. The Chicago & Alton Railway tracks are first encountered from the north and 99 feet south of such tracks are those of defendant. Plaintiff and all of the occupants of the surrey say they both looked and listened for trains as they approached the Chicago & Alton tracks from the northward, and, seeing none, progressed forward for a distance more than halfway between the Chicago & Alton tracks and those of defendant when plaintiff stopped the horse, and he, together with his companions, looked and listened for trains on defendant's road, but neither observed the locomotive which occasioned the collision nor heard it. Plaintiff and his companions say that he stopped the horse at some point in the street 17 or 18 feet north of the Wabash tracks when he leaned forward over the dashboard and, besides listening, looked both ways for the approach of a train. At this point, the view was open to the eastward along the Wabash track for a short distance, but beyond that was obscured by the weeds, and, as no sound of a locomotive or train was heard, the party moved forward. Immediately upon the foremost feet of the horse stepping upon the north rail of the railroad track, defendant's locomotive engine was discovered but a short distance away coming forward at a high and dangerous rate of speed. Plaintiff pulled the horse around to the westward in an endeavor to escape a collision and succeeded to the extent of saving the life of the horse and all of the party; but the locomotive collided with the foremost wheel and the shafts of the surrey and inflicted both serious and permanent injuries upon plaintiff.

The specifications of negligence relied upon for a recovery are two in number and relate to both the violation of the speed ordinance of the city of Mexico and the omission to perform the statutory duty of ringing the bell or sounding an alarm upon approaching the crossing of a public street. The ordinance of the city of Mexico, declared upon in the petition and introduced in evidence, prohibits the running of railroad trains at the point in question at a rate of speed in excess of eight miles per hour and denounces the act of doing so as a misdemeanor. The testimony not only established defendant's negligence in respect to operating the locomotive at the point in question at an unlawful rate of speed, but abundantly supports the charge as well that no bell or other signal was being sounded on the engine. Even the evidence of defendant's engineer and others for it concedes the locomotive was being operated at a speed of twelve miles an hour when the collision occurred whereas more than eight miles was proscribed by the ordinance. There is evidence for defendant that the bell on the locomotive was being sounded; but it is slight, and, indeed, both its brakeman and fireman almost concede it was not. At any rate, there is an abundance of proof on the part of plaintiff that no bell or other warning was being given as the locomotive approached, and, as no cars or train were attached, it glided along unattended by noise, for the track appears to be perfectly level. Indeed, so far as the negligence of defendant is concerned, the question is not controverted here, for the counsel frankly concede it, but insist plaintiff should be denied a recovery for the reason his own fault concurred with that of defendant and occasioned the collision as the result of the negligence of both which mutually operated the proximate cause of the injury.

It is argued that, though plaintiff and his companions testified they stopped, looked, and listened at a point about 17 or 18 feet north of the north rail of the Wabash track before driving forward, the court should nevertheless have directed a verdict for defendant, as it is obvious to have looked and listened at the point mentioned was to see the approaching locomotive. No one can doubt that railroad tracks in and of themselves signify danger of which all persons of discretion are to take notice, and therefore the requirement of the law to the end that one shall look and listen before going thereon. It is true, too, the courts will...