Payne v. Chicago & A. R. Co.

• Citation: 30 S.W. 148
• Court: United States State Supreme Court of Missouri
• Decision Date: 12 March 1895
• Parties: PAYNE v. CHICAGO & A. R. CO.

30 S.W. 148

PAYNE v. CHICAGO & A. R. CO.

Supreme Court of Missouri, Division No. 1.

March 12, 1895.

ACCIDENT AT CROSSING — PROXIMATE CAUSE — CONTRIBUTORY NEGLIGENCE.

1. Where a personal injury was inflicted by a train running at an unlawful rate of speed through a city, it was for the jury to determine whether such negligence was in fact the proximate cause of the injury.

2. Where a boy, 11 years of age, possessed of ordinary intelligence, and the knowledge that proper care required him to look and listen before venturing upon a railroad track, did not do so, and was struck by a train, he was guilty of contributory negligence preventing recovery, although the train was running at an unlawful speed.

Appeal from circuit court, Lafayette county; Richard Field, Judge.

Geo. Robertson, for appellant. J. D. Shewalter, M. C. James, and John S. Blackwell, for respondent.

MACFARLANE, J.

The suit is to recover damages for personal injuries caused, as alleged, by the negligence of defendant in running one of its trains through the town of Higginsville. A trial before the court and a jury resulted in a verdict and judgment for plaintiff for $6,000, and defendant appealed.

The petition counted upon negligence in running and managing one of its trains as it passed through the town of Higginsville, and in the running of said train through said town, and across its public streets, at a rate of speed prohibited by ordinance. The answer was a general denial, and a plea of contributory negligence. On the trial, it was shown that the city of Higginsville was, at the time of the accident, incorporated as a city of the fourth class, and there was in force an ordinance prohibiting railroad companies from running trains within its limits at a rate of speed in excess of six miles per hour. Russell street, running north and south, is the principal street of said city, upon which most of the business is done, and upon which there is much travel by pedestrians and others. Defendant's railroad runs easterly and westerly through said town, crossing said street, and separating the business portion of the town on the north from a residence part of the town on the south. Defendant's depot is on the east side of the street, the platform thereof extending to the sidewalk on the east side of the street. This sidewalk, extended, passes over the railroad, and is used by pedestrians in crossing the railroad. The railroad has two tracks crossing this street, — the main track on the north, and the other a side track. These tracks are about six feet apart. Defendant operated over its road from Kansas City to Chicago a daily scheduled train, known as the "Hummer." This train from Kansas City was due at Higginsville at about 8 o'clock in the evening, but did not stop there. Plaintiff was a negro boy 11 years of age, and lived with his mother about four blocks, or a quarter of a mile, south of the railroad. On the evening of May 6th, plaintiff was sent by his mother to the post office. The "Hummer," from Kansas City, passed through town at about the schedule time, running at a rate of speed variously estimated at from 10 to 40 miles per hour. Immediately after it passed over Russell street, the cries of a boy were heard, and plaintiff was found lying between the main and side track, about 15 feet east of the east line of the street, with both of his legs crushed so that amputation became necessary. The train, the engineer said, was running at the rate it usually ran through there. Another witness says that it was running 30 or 40 miles per hour, "as fast as they ever go over the crossing." It was shown that the road west from Russell street was comparatively straight, and a train could be seen from any point on said sidewalk within 50 feet of the track, on the north side, for a distance of from 300 to 500 yards. A number of witnesses standing near the track saw this train that distance. The headlight was burning, the whistle was sounded, and the engine bell was kept ringing as the train approached.

Plaintiff testified that he had been to the post office, and, on returning, when he got to the railroad, he looked up and down the track, saw no train, started across the track, and the train hit him. On cross-examination he testified, further, that he lived on the south side of the railroad, and had been over the town and across the railroad many times before. Came from the post office, along the walk, on the east side of Russell street. Stopped and looked for a train as he went to the post office. As he returned, when within four or five feet of the track, he looked for the train. Was struck when crossing. Did not know whether he had got clear across. Did not know what part of the train struck him. Did not see the train at any time. Saw no one at the crossing. Did not stop, but looked up and down the crossing, and kept on walking. Did not know a train came along about that time. Floyd Smiley, a witness for plaintiff, testified that he was 12 years old. Was news agent. Was at the depot on the occasion of plaintiff's injury. Saw the train when about the mill, which was shown to be between 200 and 300 yards. He was then questioned and his answers given: "Q. State whether or not you saw anybody attempting to cross over there. A. Yes, sir. Q. Who was it? A. I do not know. I did not know whether it was a black person or white. Q. Was it a man or boy? A. It looked like a boy. Q. Where was he coming across? A. At Russell street crossing. Q. What became of the person that started across there? A. I don't know. I can't say. I did not see him." On cross-examination he testified: "Went to the train to get papers. Stood about 50 feet from the sidewalk. Hearing the whistle and bell first attracted his attention to the train. Saw the headlight. Was looking at the train until it passed the crossing, and continued. Q. Did you see any one on the crossing? A. No, sir; I never saw any one standing still. Q. Where was this train when you saw the person go over the crossing then? A. Just a little this side the mill switch. Q. You saw the boy? A. Yes, sir. Q. Where did the boy cross the track? A. Right on the crossing on sidewalk. Q. How far was the train when he went off the crossing? A. About 200 feet." He testified that he was standing 4 or 5 feet from the main track, and 50 feet from the sidewalk. Noticed the train until it passed over the crossing, and saw no one struck. A number of witnesses, 8 or 10, who were within 50 feet, some nearer, who watched the train pass, all testified that they saw no one on the crossing when the train got to it. No witness saw plaintiff struck. One witness testified that, as the train came up, he saw a colored boy running on the sidewalk, from the south, towards the track, but the train came between him and...