Palmer v. Chicago & A. R. Co.

• Decision Date: 19 October 1909
• Citation: 142 Mo. App. 633,121 S.W. 1087
• Court: Missouri Court of Appeals
• Parties: PALMER v. CHICAGO & A. R. CO.

121 S.W. 1087

142 Mo. App. 633

PALMER v. CHICAGO & A. R. CO.

St. Louis Court of Appeals. Missouri.

October 19, 1909.

1. RAILROADS (§ 350)—ACCIDENTS AT CROSSING —QUESTIONS FOR JURY — CONTRIBUTORY NEGLIGENCE.

Whether a person injured in a railroad crossing accident was guilty of contributory negligence held for the jury.

2. TRIAL (§ 260)—REFUSAL OF INSTRUCTIONS.

Where, in an action for injuries in a crossing accident, seven or eight instructions were given advising the jury plaintiff could not recover if his negligence contributed to the accident, and presenting the issue in its various phases, such instructions sufficiently informed the jury on that issue to render harmless the refusal of a requested charge, even if sound, that if plaintiff sat back in the buggy just as the horses stepped on the track, and made no further effort to discover any approaching train, and if he had listened and looked long enough he could have seen the train and whipped up the horses and gotten over safely, he was guilty of contributory negligence.

3. RAILROADS (§ 334)—ACCIDENTS AT CROSSING —CONTRIBUTORY NEGLIGENCE.

It was not error to refuse to instruct that it was contributory negligence for plaintiff not to whip his horses across the track on the discovery of a train near him, if thereby he could have escaped, since the peril may have been so imminent and terrifying as to excuse him for failing to adopt the best course.

4. RAILROADS (§ 345)—INJURIES TO PERSONS ON TRACK—ACTIONS—PETITION.

A petition for injury in a railroad crossing accident alleged that the two original companies, lessor and lessee, had united and consolidated "under and in accordance with the requirements of the laws of the state of Illinois, and that the corporate name of the consolidated company is the C. Company, the defendant herein." It was also alleged that defendant was liable "under the laws of the state of Missouri." Held, that the allegation relative to the requirements of the laws of Illinois was made to show authority, for the consolidation, and not for the purpose of counting on a liability imposed on defendant consolidated company by those laws for the torts of its constituent companies so as to make it incumbent on plaintiff to introduce such a statute in proof of his allegation and preclude him from recovering at common law.

5. CORPORATIONS (§ 590) — CONSOLIDATED COMPANIES—LIABILITY FOR TORTS OF CONSTITUENT COMPANIES.

A consolidated corporation is liable for the torts of the constituent companies, whether it is an entirely new corporation, or one of the old companies has absorbed the other.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by Walter Palmer, by next friend, against the Chicago & Alton Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John Orear and Scarritt, Scarritt & Jones, for appellant. Brewster, Ferrell & Mayes, for respondent.

GOODE, J.

Plaintiff is a negro boy who sues by his next friend for a personal injury received in a collision of a locomotive of the defendant company with a buggy in which plaintiff was driving. The accident happened on the night of September 9, 1905, after midnight, and at a crossing which is near, but east of, the abandoned station of Larrabee. This plaintiff worked on a farm five or six miles northeast of Larrabee. One Saturday evening he and another negro boy drove from the farm where plaintiff lived to the town of Sturgeon, seven or eight miles southwest of Larrabee and about twelve miles southwest of where plaintiff lived. He visited his father and mother in Sturgeon, attended a social gathering at a church, and perhaps loitered about a saloon. He may have been intoxicated, but much of the evidence looks like he was not. He and his companion started for home about midnight in a buggy drawn by a team. Behind them were two white men, farmers in the vicinity, of the names of Devert and Palmer. A third negro boy accompanied the men in the buggy, riding a horse belonging to one of them. The occupants of the second vehicle had nothing to do with plaintiff and his companion; but the members of the two parties seem to have been acquainted, and to have passed a few words now and then when the buggies happened to come close enough to each other for conversation to occur. Plaintiff, Palmer, and his companion were in advance of the other buggy, and continued to be. They drove along about seven miles until they drew near Larrabee station, and near to the crossing of the road they were on and the railroad at a point some distance east of the station. The country about there is level, and the railroad track runs due east and west. The wagon road on which plaintiff was driving proceeds in a northeasterly direction until it is 150 yards south of the railroad crossing, and there branches; one fork leading to the north, and another, a wagon road, going eastwardly. At this point one of the men in the rear buggy, R. L. Palmer, got out and mounted his horse to travel east alone; his companion, Devert, intending to go on north in the buggy. The third negro boy, who had been riding the horse, relinquished the animal to its owner, Palmer, and got into the buggy with Devert. This white man, Palmer, should not be confused with the plaintiff. What is material about the incident at the fork of the road is that the white man, Palmer, testified he there heard a rumble, thought of the approach of a train, and warned Devert to look out for it as he (Devert) drove on toward the crossing. Palmer said he could not see the train. There was a hedge along the west side of that part of the country road extending to the right of way, and it is conceded this hedge would obstruct the view of a person driving northward until he entered the right of way; but the evidence tends to show the view was unobstructed by the hedge from thence to the track, a distance of 47 feet, and that, after getting on the right of way, no obstruction of vision intervened to the west of the crossing, except a wing fence 3 or 4 feet high and some cattle chutes 160 yards further west.

Plaintiff testified when he reached the right of way he rose to his feet, looked out of the buggy, still standing until the horses reached the track, drove the team in a walk to the track, when the engine struck the buggy, hurled it and plaintiff 100 feet or more up the track, and killed his companion. The horses were found hitched to the wagon pole further north on the wagon road. He testified that, though he was looking to the west, he neither saw nor heard the approaching train, and never knew what hit him. The neglect alleged was failure to sound crossing signals. The top of the buggy was up, and the curtains down. The night was wild and very dark. It was raining hard, and a strong wind was blowing from the north which drove the rain into the faces of the occupants of the buggy. The railroad track was two feet above the surrounding country. It was upgrade from the crossing toward Larrabee, and ordinarily a train coming from the west would be visible from the crossing for a long distance. When the witness Palmer heard the rumble of the train, he judged it was a half mile west, and another witness said that from observations he had made a train might be seen from the crossing clear to Clark, five miles away, and from the edge of the right of way would be visible to a person sitting in a buggy 1,275 feet away, or at the water tank. The train was a short one, consisting of an engine, tender, and caboose, and was running, the engineer said, at a speed of 35 miles an hour. He testified there was a lighted headlight on the front of the engine; but there was testimony tending to prove the contrary. The engineer said the night was so dark he could not see further than the front of his engine, did not see the buggy or team, hear the collision, or become aware he had struck anything until he found portions of the buggy on the front of the engine when he reached Mexico, 20 miles from the place of the accident. The evidence tended strongly to prove no bell was rung or whistle sounded as the engine approached the crossing, and it is conceded the finding of the jury for plaintiff settled this issue of fact. The company operating the road at the time of the accident was the Chicago & Alton Railway Company; but this action was instituted against the Chicago & Alton Railroad Company, it being alleged the latter, on September 10, 1905, was the lessor of the Chicago & Alton Railway Company of the railroad track and right of way mentioned, and that on or about March 8, 1906, said two railroad companies were consolidated pursuant to the provisions and...