Owens v. St. Louis Southwestern Ry. Co.

• Citation: 174 S.W. 116,188 Mo. App. 450
• Decision Date: 02 March 1915
• Docket Number: No. 13730.,13730.
• Parties: OWENS v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Court of Appeal of Missouri (US)

174 S.W. 116

188 Mo. A. 450

OWENS v. ST. LOUIS SOUTHWESTERN RY. CO.

No. 13730.

St. Louis Court of Appeals, Missouri.

March 2, 1915.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by Henry Owens against the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Sam. H. West, of St. Louis, and Wammack & Welborn, of Bloomfield, for appellant. J. M. Cook, of Dexter, W. E. Edmonds, of Bernie, for respondent.

NORTONI, J.

This is a suit for damages accrued on account of defendant's negligence. Plaintiff recovered, and defendant prosecutes the appeal.

Plaintiff was injured at a public road crossing on defendant's railroad by the overturning of his wagon because of the fright of the team of mules he was driving. The suit proceeds under the statute which requires railroads to either sound the whistle or ring the bell attached to a locomotive on approaching the crossing of a public highway. It appears plaintiff, a farmer, was en route home from Dexter, riding on a spring seat in an ordinary farm wagon, accompanied by his two stepsons and another young man. The hour was about 6:30 o'clock in the evening and the date December 22d. It was drizzling rain at the time, and darkness prevailed. The general course of defendant's railroad at the, place in question is from northeast to the southwest, but there appears to be a slight curve there as well. However, the curve in no wise materially influences the case, for plaintiff admits one could see a train approaching 80, and maybe 100, rods from the northeast. The public road runs almost north and south and crosses defendant's tracks at a place where the view is open and clear for a considerable distance. Just before reaching the crossing on the north and west side of the railroad the public roads diverges some to the southwest and for as much as sixty feet runs almost, but not quite, parallel with the railroad until the crossing is reached. Plaintiff was driving his wagon southward at the rate of about three miles per hour and en route home over a road and approaching a crossing with which he was entirely familiar. He crossed there every few days and knew the locus in quo full well. Shortly before coming upon the track — that is, something more than 100 feet distant therefrom — he says he looked for an approaching train, but neither saw nor heard one. It appears there was a clump of bushes some 200 feet north of the railroad track, and after passing these the view was open for a long distance to the northeast. Some distance to the north and eastward was a cut through which the railroad passed, and plaintiff says the train was evidently in this cut at the time he made an observation in that direction, for he neither saw nor heard it. The evidence is conclusive and, indeed, the case concedes, that the locomotive bore a brilliantly lighted headlight, and the train was discernible therefrom for as much as 80 rods; that is, a quarter of a mile. The train was moving at from 30 to 35 miles per hour. Plaintiff says that he was between 80 and 100 feet from the crossing when he looked and listened for a train the last time, and it is conceded that the view was open up the track to the northeastward 100 feet north of the crossing; that Is to say, one could see an approaching train from any point in the highway as much as 100 feet north of the crossing to the northeastward up the track for a distance of 80 rods. After looking and listening for a train from 80 to 100 feet before reaching the crossing, plaintiff drove forward with his team at a walk at about three miles per hour until his lead mule was about to step upon the crossing when he was stopped by Mr. Jorndt. It appears that Mr. Jorndt and some other gentlemen were traveling northward in an automobile but stopped on the south and east side of the track about 25 feet from the crossing and Mr. Jorndt went forward to the crossing. He hallooed to plaintiff, whom he saw driving toward the crossing, that a train was coming. The train was in plain view at the time and approaching at high speed. Plaintiff undertook to back his team of mules out of the danger zone in order to permit the train to pass, and, while so doing, they became frightened, overturned his wagon, and inflicted the injury complained of.

The evidence tends to prove that neither the whistle nor the bell attached to the locomotive was sounded, as the statute requires, and the negligence of defendant with respect to this matter is to be regarded as sufficiently established. But, though such be...