Payne v. Chicago & A. R. Co.

• Citation: 38 S.W. 308,136 Mo. 562
• Court: United States State Supreme Court of Missouri
• Decision Date: 23 December 1896
• Parties: PAYNE v. CHICAGO & A. R. CO.

38 S.W. 308

136 Mo. 562

PAYNE v. CHICAGO & A. R. CO.

Supreme Court of Missouri.

December 23, 1896.

ACCIDENT AT CROSSING — CREDIBILITY OF TESTIMONY — INFANTS — LIABILITY FOR NEGLIGENCE — EXCESSIVE SPEED — EFFECT OF CONTRIBUTORY NEGLIGENCE.

1. In an action for injuries sustained at a crossing by a healthy, active negro boy of 11 years, who had good hearing and eyesight, all the witnesses who were near the crossing and in a position to see testified that the train causing the injuries was in full view, as it advanced, for a distance of 1,500 feet, and that, though they were looking at the engine, they saw no one struck; there was evidence that the whistle was sounded at the usual place, that the bell was kept ringing until after the crossing was reached, and that the headlight was burning, — it being dusk at the time of the accident. Plaintiff testified that, though he was on the lookout for it, he did not see or hear coming the train which ran over him. Held, that a verdict for plaintiff would be set aside, because a witness will not be permitted to overthrow by his oath the obvious and indisputable physical facts in the case.

2. A healthy, active negro boy of 11 years, having a good mind, good hearing, and good eye-sight, who had attended school several sessions, and who lived in the vicinity of and was familiar with a railroad crossing, and knew the dangers incident thereto, is chargeable with contributory negligence in attempting to cross the tracks in front of a rapidly approaching train.

3. In an action for injuries sustained at a crossing, though it appears that defendant was running its train at a greater speed than allowed by ordinance, yet where it is clear that plaintiff was guilty of contributory negligence which was the immediate cause of the injury, he cannot recover.

4. In an action for injuries alleged to have been sustained while plaintiff was going from north to south over a crossing, there was no evidence that plaintiff was struck by the engine, and a number of witnesses testified that he was not so struck. Plaintiff stated, only, that the train ran over him. Another witness testified that plaintiff made a grab at the train as it passed, and that it jerked him under. Two persons, who found plaintiff lying on the south side of the track, testified that plaintiff told them that he was holding out his hand to the train when it ran over him. Plaintiff did not deny the truth of these statements. Held that, as it stood admitted on the records that plaintiff was not struck on the crossing by the train, but was hurt after he had crossed by heedlessly attempting to catch hold of the train as it passed by, he could not recover.

Burgess, J., concurring in paragraph 4 only. Brace, C. J., and Barclay, J., dissenting.

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

Action by Claude Payne, by next friend, against the Chicago & Alton Railroad Company, for injuries alleged to have been caused by defendant's negligence. Plaintiff had judgment, and defendant appeals. Reversed.

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

SHERWOOD, J.

The plaintiff, who is a negro boy, sues by next friend for injuries received by him as the result of being run over by a train of defendant's cars in the city of Higginsville, in the evening of the 6th of May, 1892, at about 8 o'clock. At that date plaintiff was 11 years of age. The jury, after hearing the evidence, returned a verdict in favor of plaintiff for $8,000. At a previous trial he received a verdict for $6,000. The city of Higginsville, in the county of Lafayette, was a city of the fourth class, and had an ordinance in force limiting the speed of railroad trains to a rate not exceeding six miles per hour. The defendant's railroad runs through the city, from east to west, in a southwesterly direction, crossing Russell street, the principal street of the town. Russell street runs through the principal part of the town, north and south. Beginning on the north, it runs up to the railroad, crossing the right of way of the defendant, then turns slightly to the west, and continues on to the south side of the town. Defendant's main track and side track are both crossed by Russell street, the main track being on the north side. There is no sidewalk on the west side of Russell street approaching this crossing. There is a sidewalk on the east side of Russell street, extending from the business part of the town, on the north side of the railroad, directly up to the defendant's right of way, then on defendant's right of way to the main track, and continues clear across to the south side of the right of way, and continuing on the east side of Russell street south. The defendant's depot is situated north of the main track, and about 50 feet east of Russell street, and on the north side of the depot building is a platform, which continues west until it reaches this sidewalk on the east side of Russell street, where the platform and sidewalk join on a level. The first building north of the defendant's right of way, and on the west side of Russell street, is the Arcade Hotel, in front of which there is a veranda. The sidewalk in front of the hotel is on a level with the sidewalk running from the hotel north on the west side of Russell street. Defendant's roadbed, where it crosses Russell street, is about 2½ or 3 feet above the level of the sidewalk and street in front of the Arcade Hotel, and this roadbed is also some higher than that part of the street on the south side of the railroad. There is also a crossing over the railroad one block west of Russell street, and one block east of Russell street. The railroad from Russell street crossing continues west on a straight line 1,500 feet, and about 900 feet west of this crossing, on the north side of defendant's right of way, is a mill; and about 300 feet west of Russell street crossing there begins a switch, on the north side of the track, running to the mill, called the "Mill Track." There is no building on the north side of the railroad and on the west side of Russell street nearer to the track than the Arcade Hotel, and west from it there are no buildings until the mill is reached. Standing at a point in Russell street, and on the sidewalk on the east side of the street, and back 20 or 30 feet north of the railroad, a train can be seen approaching from the west for a distance of 1,500 feet, and standing at any point on this sidewalk in Russell street, looking west, until the view is shut off by the Arcade Hotel, a train may be seen approaching from the west 500 yards. At the time of this accident there were no cars on the mill side track nor on the side track south of the main track. This side track crossing Russell street is about 6 or 8 feet south of the main track. At about 8 o'clock on the evening of the 6th day of May, 1892, defendant's passenger train, called the "Hummer," approached this crossing from the west at a rate of speed varying, according to several witnesses, from 20 to 35 miles per hour. The whistle was sounded for this crossing at the usual place; the bell rung, and kept ringing, as it approached the crossing, and over the crossing, and continued ringing through the town; and the headlight of the engine was burning. According to several witnesses it was not yet dark, but was dusk or twilight, but a person could be seen and recognized for a considerable distance. After this train had passed, the plaintiff, a negro boy 11 years of age, was found lying, 15 or 18 feet east of the Russell street crossing, between the main track and the side track of the defendant, with both of his legs cut off, which was supposed to have been done by the train.

The engineer, Jones, and the fireman, Eikhurst, were each on their respective sides of the engine, looking forward, at the crossing; saw no one on the crossing, and saw no one struck; and did not know that any one was hurt by the train until they received information of it at Slater, the end of their run, where they examined their engine, and found no signs of blood upon it. W. S. Dorn Blaser, a witness on the part of the plaintiff, crossed the track at this crossing from the south to the north, and stopped about 12 feet north of the main track on the sidewalk, and watched the train until it passed over Russell street crossing, and saw it strike no one. James Jackson, a witness on the part of the plaintiff, was standing east of the crossing, on the depot platform, about 10 or 12 feet east of the sidewalk; heard the train whistle, and the ringing of the bell; saw it approach the crossing and cross over it; and saw no one on the crossing, nor saw the train strike any one. Floyd Smiley, a witness on the part of the plaintiff, was standing on the depot platform, in front of the depot; saw the train approaching from the west; saw a boy, or some boys, crossing over the track when the train was about 200 or 300 feet west of the crossing; continued to look at the engine and the train until it had gotten over the crossing; and saw it strike no one. Mrs. Carrie Ellis, a witness on the part of the defendant, walked from the north side, on the sidewalk on the east side of Russell street, up near to the crossing; stopped within a few feet of the point where the sidewalk crossed over the main track, and waited until the train passed; noticed two black boys pass her, but did not notice them after passing her. She watched the engine until it had passed entirely over the crossing, and saw it strike no one. R. C. Mosby, a witness on the part of the defendant, was in front of the Arcade Hotel, looking directly at the engine as it passed over the crossing; noticed the engine all the time it was going over the crossing; saw no one on the crossing, and saw it strike no one. James Dorn Blaser was standing in front of the Arcade Hotel, saw the engine and train pass over the crossing, but saw no one on the...