Petty v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1885
• Citation: 88 Mo. 306
• Parties: PETTY v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

88 Mo. 306

PETTY

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Clinton Circuit Court.--HON. GEORGE W. DUNN, Judge.

AFFIRMED.

Smith & Krauthoff for appellant.

(1) The uncontradicted evidence shows that if deceased had looked (certainly if he had done so when within fifty yards, or less, of the track), he could have seen the train for a distance which increased from fifty yards to forty-two rods, as he approached the track, and that if he had stopped and listened he could have heard the train at least a half a mile distant. Under these circumstances the plaintiff could not recover. Hixson v. Ry., 80 Mo. 335; Allyn v. Ry., 105 Mass. 77; Railroad Co. v. Miller, 25 Mich. 274. (2) The proof of absence of contributory negligence was an essential element of plaintiff's case. Adams v. Carliss, 21 Pick. 146; Carsley v. White, 21 Pick. 254; Lucas v. Ry., 6 Gray, 64; 8 Allen, 137; 14 Allen, 429; 100 Mass. 208; 133 Mass. 507; Parks v. Obrien, 23 Conn. 339; Merrill v. Hampden, 26 Me. 234; Hyde v. Jamaica, 27 Vt. 443; Railroad Co. v. Gregory, 58 Ill. 272; Railway Co. v. Brannegan, 75 Ind. 490; Hubbard v. Mason City, 60 Ia. 400; Vicksburg v. Hennessey, 54 Miss. 391; Owen v. Ry., 88 N. C. 502; Moore v. Shreveport, 3 La. An. 645; Walsh v. Ry., 10 Ore. ___; Brahan v. May, 17 Ga. 136; 4 McLean, 333; 2 Woodb. & M. 345; Railroad v. Van Steinbur, 17 Mich. 99; Harlow v. Humonston, 6 Cow. 189; 19 Wend. 399; 6 Hill, 592; Abbot's Trial Evid. 596; 1 Best on Evid., sec. 266. (3) All the instructions given for plaintiff totally ignore the element of contributory negligence, and are defective in that regard. Gilson v. Ry., 76 Mo. 282.

Thomas E. Turney also for appellant.

(1) The only negligence on the part of defendant's servants alleged, or attempted to be proved, was their failure to give the signals when eighty rods distant from the crossing. Although this is negligence it is not such negligence as will relieve the injured party from the consequences of his own contributory negligence. Harlan v. Ry., 64 Mo. 480; Fletcher v. Ry., 64 Mo. 484; Zimmerman v. Ry., 71 Mo. 476; Henze v. Ry., 71 Mo. 636; Park v. Ry., 72 Mo. 169; Kelley v. Ry., 75 Mo. 138: Lenix v. Ry., 76 Mo. 86. (2) The deceased was guilty of such contributory negligence, in failing to look or listen before attempting to make the crossing, as to preclude plaintiff's recovery. Harlan v. Ry., 64 Mo. 483; Ry. v. McDamerill, 87 Ill. 450; Week v. Ry., 38 Ohio St. 632; Tully v. Ry., 134 Mass. 499.

W. H. Haynes for respondent.

(1) The evidence on part of plaintiff was sufficient to warrant the submission of the case to the jury. (2) The statutory requirements of blowing the whistle and ringing the bell not being complied with, the deceased had the right to rely on the presumption that the defendant was obeying the law, and that, therefore, no train was within a quarter of a mile of the crossing at the time of the accident. Cooley on Torts, 664-5; Johnson v. Ry., 77 Mo. 546. (3) The burden was not on this plaintiff to show the absence of contributory negligence on part of deceased. 19 Amer. Law Review (No. 5) 823.

NORTON, J.

This suit was instituted by plaintiff to recover damages for the killing of her husband on a public road, by reason of the negligence of defendant in failing to ring its bell or sound a whistle at the distance of eighty rods from said crossing. The answer was a general denial, and on the trial plaintiff had judgment, from which defendant has appealed, and assigned as the chief ground of error the action of the court in refusing to instruct the jury that, under the evidence, plaintiff could not recover.

In order to a fair consideration of the question presented, we give all the evidence offered in the case, which is as follows:

The plaintiff, to sustain the issues on her part, offered evidence as follows:

Susan Petty testified as follows: “I am the plaintiff in this cause. My husband's name was John J. Petty; he died September 13, 1879; he was at home the morning of that day, and was brought home dead that night; he went to mill that day with his wagon and team; several persons came with his body to our home; he was my husband at the time he was killed.”

Mr. Hathaway, being introduced on the part of plaintiff, testified as follows: “I lived about eight miles from Stewartsville, in Clinton county. I knew deceased when I saw him; saw him shortly after he was killed; his body was near defendant's railroad track on the thirteenth of September, 1879; he was lying about thirty feet from the crossing and about four feet from the track, and was entirely dead; the top part of his head was mashed, and part of his nose was taken off; the crossing was a public road crossing across the railroad track. Part of his wagon was on each side of the railroad track. The mules which were to the wheels of the wagon were killed. This was about eight o'clock, P. M. I saw no train at that time, but shortly before saw train on defendant's railroad pass going west; when it passed the crossing I was about one-fourth of a mile south of the track, and about one-half mile east of the crossing; I heard the train whistle twice; did not hear it oftener; I could not tell how far the train was from the crossing when it whistled; it sounded like it was right close to the crossing, but could not say definitely how far away. I did not hear the bell ring.” Cross-examined: “I was not acquainted with deceased, but knew him when I saw him. He lived about half a mile from the crossing; I am acquainted with the crossing; I think there was a board there erected by the railroad company, but am not positive whether it was there at that time or not. The night was an ordinarily still night. I was one quarter of a mile south of the track, and one-half mile east of the crossing at the time of the accident. I heard the train plainly; I heard the whistle only twice. I think deceased was in the habit of crossing the railroad at that place, hauling hay, etc. On the east side of the crossing is quite a high bank, and coming from the east a person cannot see the road until they get close to it. I know where the ringing post on the east side of the crossing is; I measured the distance from it to the crossing; it is forty-two rods and four feet east of crossing. I was traveling west when I heard the train. I was on a road running parallel with the railroad and a quarter of a mile south of it.”

H. B. Scoville, introduced on part of plaintiff, testified as follows. “I live in Clinton county, and was acquainted with the deceased. On the thirteenth of September, 1879, I had been south of Stewartsville, and was on my way home; when I got within two hundred yards of the crossing on the east, and about seventy-five yards south of railroad track, the train going west passed me; when it came opposite the ringing post I heard three strokes of the bell, and as the rear car passed out of sight through the cut in the track, I heard two sharp whistles, and immediately thereafter a sound as if the train had struck something; I then heard the train backing. When I got to the crossing I saw something lying near the track and some men with it. I jumped over the fence and asked what was the matter; the train men told me they had run into a wagon and team. I saw Petty lying there dead. When they rang the bell they were at the ringing post; they whistled afterwards. I have measured the ground from the crossing to a post eighty rods distant east; they did not ring the bell at that distance; no bell rang from that point to the crossing, except three strokes at ringing post; when the whistle sounded the engine could not have been more than sixty yards east of the crossing; in but a moment after, I heard the collision. The nearest point west of the crossing where they can see a train in crossing, is two hundred yards; a man at this point could not reach the crossing before the train came; it is about two hundred yards from the crossing to the rise in the ground from which the train can be seen; there is a cut in the railroad just east of the crossing that would obscure a train from a man in the flat for about two hundred yards. I measured the distance from the crossing to the ringing post with a tape line; it is just forty-two rods and four feet east of the crossing. The accident occurred at a public crossing in this county. The train was a passenger train going west, and was due at Stewartsville at eight o'clock, P. M.; it was about on time; there was a headlight on the train burning brightly. The road deceased was traveling before reaching the crossing runs parallel with the railroad track for about one-fourth of a mile; at the west end it is about one-eighth of a mile distant from the track, and gradually nears the track until it turns abruptly south to the crossing; at this point it is about fifty feet distant from the track; at that point the headlight could not be seen more than fifty yards off, the railroad just east of the crossing running through a cut, and a hill or rise in the ground intervenes; this cut is forty rods long and ten or twelve feet deep; a man in the road would be some lower than the railroad track. There is a depression or flat in the road by which deceased approached about one hundred yards wide; just before you get to the point at which the road turns south; the road then inclines up to the crossing; at a point on the road, about twenty-five feet south of the track, you could see the headlight a distance of sixty yards; at a point ten or fifteen feet distant you could see it seventy-five yards, and when on the track you could see it about to the ringing post. Before one gets to the depression in the road he could see the headlight about one-fourth of a mile down the track, east of the crossing. There is nothing between this point and a grove half a mile off, to obstruct the view; for very nearly a half a mile, before entering the cut, the headlight...