Osborn v. Wabash R. Co.

• Decision Date: 04 May 1914
• Docket Number: No. 10810.,10810.
• Citation: 179 Mo. App. 245,166 S.W. 1118
• Parties: OSBORN v. WABASH R. CO.
• Court: Missouri Court of Appeals

166 S.W. 1118

179 Mo. App. 245

OSBORN v. WABASH R. CO.

No. 10810.

Kansas City Court of Appeals. Missouri.

May 4, 1914.

1. TRIAL (§ 156)—DEMURRER TO EVIDENCE— CONSIDERATION OF EVIDENCE.

While, in passing on a demurrer to the evidence, plaintiff's evidence must be accepted as true and he must be given the benefit of every inference fairly deducible therefrom, yet where his evidence does not contradict defendant's and his case rests upon an inference scarcely more than conjecture, or the possibility that the fact might exist, then the court ought to look at the character of defendant's evidence.

2. RAILROADS (§ 327)—ACCIDENTS AT CROSSINGS—DUTY TO STOP, LOOK, AND LISTEN.

A railroad crossing, being a dangerous place, a person, before venturing upon same, must both look and listen, at a convenient distance from the crossing, and where the look will be effective.

3. RAILROADS (§ 330)—ACCIDENTS AT CROSSINGS—FAILURE TO GIVE SIGNALS.

While, under Rev. St. 1909, § 3140, requiring the giving of signals for a railroad crossing, evidence of an injury where such signals are not given makes a prima facie case, yet

the rule of contributory negligence is not abrogated.

4. RAILROADS (§ 330)—ACCIDENTS AT CROSSINGS —CONTRIBUTORY NEGLIGENCE —RELIANCE ON PRECAUTIONS ON PART OF RAILROAD.

It is only where a person is paying attention and can neither see nor hear anything indicating that a train is coming that he can presume, without negligence, that if one were coming, the signals would be given.

5. RAILROADS (§ 330)—ACCIDENTS AT CROSSINGS —CONTRIBUTORY NEGLIGENCE —DUTY WHEN VIEW OR HEARING IS OBSTRUCTED.

Plaintiff's intestate, a rural mail carrier, being in an inclosed cart with his ears partly muffled on a foggy day drove upon a railroad crossing in front of an approaching freight train and was killed. The statutory signals for the crossing were not given, but persons further away than deceased heard the noise of the train. Held, that he was guilty of contributory negligence precluding recovery, since the conditions only increased the care he was required to exercise.

6. EVIDENCE (§ 568)—WEIGHT AND SUFFICIENCY—OPINION EVIDENCE.

Though a witness who has sufficient knowledge of the facts, and who is so situated as to be able to form an opinion, may give that opinion as to the distance an object could be seen, yet such evidence is of a weak character as compared to positive testimony on the subject.

Appeal from Circuit Court, Gentry County; Wm. C. Ellison, Judge.

Action by Estella Osborn against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. L. Minnis, of St. Louis, J. W. Peery, of Albany, and N. S. Brown, of St. Louis, for appellant. D. D. Reeves and Kendall B. Randolph, both of St. Joseph, for respondent.

TRIMBLE, J.

Shortly before 1 o'clock in the afternoon of January 20, 1911, plaintiff's husband, Ira B. Osborn, was struck and killed at a public crossing by one of defendant's freight trains. This suit is to recover damages for his death, upon the ground that it was caused by the negligent failure of those in charge of the train to give the statutory crossing signals. The answer, in addition to a general denial, pleaded contributory negligence. A trial was had resulting in a verdict for plaintiff in the sum of $3,000. Defendant appealed, and the sole question presented is whether defendant's demurrer to the evidence should have been sustained. To state it more specifically, the controversy is over the element of contributory negligence charged to have been shown on the part of deceased, that is, upon the question whether the evidence discloses that, in going upon the track under the circumstances, he was, as a matter of law, lacking in that care and caution which ordinarily prudent persons would ordinarily use in the same situation and circumstances. The case presents no phase of the humanitarian doctrine. It is based solely on the failure to give the statutory signals, and there is no doubt but that the evidence, upon all features, aside from contributory negligence, presented a case for the determination of the jury.

In order that this question of deceased's contributory negligence may be understood and properly disposed of, it is necessary to state with some particularity the surroundings at the scene of, and the circumstances attendant upon, the killing.

The crossing in question was on a public road running due east and west. The railroad runs from the southeast to the northwest, and the track is straight for some distance on each side of the crossing. The deceased was a rural mail carrier, and was familiar with the crossing. He was traveling east along the county road, driving two ponies hitched to a two-wheeled cart, which he used in delivering the mail. The seat was inclosed, but there was a window in front and one on each side of the box, through which he could easily see. The seat was low and, when seated in the vehicle, deceased's head was about on the same level it would have been had he been walking along the road. He was a young man, in good health, with full possession of his faculties of sight and hearing, and wore a cap with ear muffs which came down partially over his ears.

The crossing was three-quarters of a mile southeast of the station of Whitton. There was no station or station agent at this place, only a platform and siding. A regular eastbound passenger train usually passed Whitton at 12:30, but on the day in question it had orders not to pass Whitton before 12:50. And this 20 minutes was given to an extra west-bound freight train to run from McFall northwest to Whitton and get on the siding there in time to allow the passenger to pass. If at the hour of 12:50 the freight had not arrived, or the passenger train had not been flagged, the latter had a right to proceed. So that when deceased approached the crossing in question at 12:40, it was a little past the usual time for the passenger train to go southeast at that point, and it had not yet reached Whitton. The extra freight, however, was approaching the crossing, going northwest, and running at 35 miles an hour in order to reach Whitton and get in the clear before the passenger train's time limit of 12:50 was up. The pilot of the engine struck the team and cart on the crossing in such way that both of the horses were thrown on the east side of the track; one of them being killed and falling on the north side of the road, the other being knocked down. The wagon was smashed and scattered along the track, and deceased's body was carried on the pilot a short distance, perhaps 200 feet up the track, and then thrown to the east side thereof. His cap was found on the pilot with the ear flaps slightly down, and he was dead when reached.

Although the evidence is conflicting as to whether the train whistled for the crossing, yet, as there was substantial evidence tending to show that it did not, and the jury found for plaintiff, we must, for the purposes of the question now before us, assume that neither the bell was rung nor the whistle blown as it approached the crossing. The only audible warning of its approach, therefore, given by the train, was merely that which accompanies a heavily loaded freight train consisting of an engine with 23 cars and a caboose; the load being something over 1,100 tons. The track was slightly downgrade for a short distance next to the crossing, and then at the crossing it changed to upgrade.

The county road passed over the top of a hill about 700 feet west of the crossing, and then came on down the hillside to a slightly low place at the foot of the hill about 400 feet west of the crossing and thence continued east on a slight upgrade to the crossing. From the top of the hill, and from any point along the greater portion of the hillside, as one came down toward the crossing from the west, the railroad to the southeast could be distinctly seen for at least a half mile on a clear day. There is a conflict in the evidence as to whether the railroad could be seen from the low place in the road at the bottom of the hill; the defendant's evidence tending to show that even at that point, 400 feet from the crossing, and from thence to the crossing, the railroad to the southeast could be seen for a quarter of a mile or more. Plaintiff had evidence tending to show that the railroad could not be seen at this low place nor at certain points thereafter along the road. But, aside from this conflict, the evidence all shows that on a clear day, for at least 100 feet before the crossing was reached, the railroad could be seen without any difficulty for more than a quarter of a mile to the southeast.

The day in question was cloudy and misty, and a fog prevailed to a greater or less extent throughout the day. Sometimes it would lift or clear for awhile and then would settle again. The fog appeared to lie in different strata, some of which were denser than others, and the degree of obscurity was greater at some periods of the day and in some places than at other periods and in other places. The part the fog had, or may have played, in preventing deceased from seeing or hearing the train may be more correctly presented by a careful analysis of the evidence of the witnesses on this point.

P. M. Ward, witness for plaintiff, who lived three-quarters of a mile southeast of the crossing, and who was in his lot feeding his cattle, heard the train coming when it was half a mile away, and saw it when it came around a bend a quarter of a mile away, and saw it was a freight train.

Wade Henderson, another witness for plaintiff, a young man, lived a quarter west and a little south of the crossing, about diagonally across a 40 acres southwest from the crossing. He and his father were in the house with the doors and windows closed. Their clock had stopped, and, knowing the usual time for the passenger train to go by, they desired to set it in accordance therewith. Both heard the freight train,...