Porter v. Missouri Pac. Ry. Co.

• Decision Date: 22 May 1906
• Citation: 199 Mo. 82,97 S.W. 880
• Parties: PORTER v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

97 S.W. 880

199 Mo. 82

PORTER v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

May 22, 1906.

Rehearing Denied November 20, 1906.

1. TRIAL — INSTRUCTIONS — APPLICATION TO FACTS AND EVIDENCE—RAILROADS—CROSSING ACCIDENT.

Where, in an action for death of a traveler at a railroad crossing, the condition of the crossing was not shown to have had anything to do with the collision, and the passage of decedent's wagon over the crossing was not impeded, an instruction calling attention to the dangerous character of the crossing and charging that if it was of such a character as to enhance the danger of accidents at the crossing it was the duty of defendant's servants, in running trains, to exercise care commensurate with the danger reasonably to be apprehended, was erroneous.

2. RAILROADS — DEFECTIVE CROSSING—PROXIMATE CAUSE OF DEATH.

That a railroad crossing at which decedent was killed might have been of such a character as to enhance the danger of collisions did not constitute sufficient negligence on the part of the railroad company to entitle plaintiff to recover, in the absence of proof that the condition of the crossing directly caused or contributed to decedent's death.

3. TRIAL—CONFLICTING INSTRUCTIONS.

In an action for death at a railroad crossing, the court charged that the "only" duty of the engineer on approaching the crossing, so far as its condition was concerned, was to sound his whistle and to ring the bell, that if such duties were discharged, the jury could not find a verdict for plaintiff on specifications of negligence with reference to the condition of the crossing and the sounding of the whistle or bell, and also charged that the operatives of the train, in passing over the crossing, were bound, in addition, to exercise a degree of care commensurate with the danger of collision reasonably to be apprehended at that location, and if they failed to do so, and in consequence thereof decedent received the injuries from which he died, the jury should find for plaintiff. Held, that such instructions were in irreconcilable conflict.

4. RAILROADS—CROSSING ACCIDENT—SIGNALS —DUTY TO LOOK AND LISTEN.

Failure of a traveler approaching a railroad crossing to look both ways and listen for trains is not excused by the negligence of the railroad company in failing to give proper signals.

5. SAME—PRESUMPTION OF CARE.

Where decedent was killed in a collision at a railroad crossing, he would be presumed, in the absence of any evidence in plaintiff's behalf as to decedent's acts of care, to have looked and listened, and to have exercised ordinary care to avoid collision with defendant's trains while he was attempting to cross the track.

6. SAME.

The presumption that a person, killed in a collision at a railroad crossing, exercised ordinary care is overcome by the conclusion derived from the evidence that had he listened he could have heard the train and had he looked he could have seen it in time to have avoided the collision

7. SAME — CONTRIBUTORY NEGLIGENCE.

Where decedent, when approaching a railroad crossing at which he was killed, looked around before going on the track and saw the train, but nevertheless drove directly on the crossing, and urged his horses over the same, he was guilty of contributory negligence as a matter of law.

8. SAME—DISCOVERED PERIL.

Decedent was seen approaching a railroad crossing by defendant's fireman, who communicated the fact to the engineer, and the latter immediately shut off the steam, and blew the whistle. The fireman, on seeing decedent urge his horses forward, told the engineer he believed decedent was going to cross the track ahead of the engine, whereupon the engineer put on the air, but too late to avoid the collision. Held, that the operatives of the train were entitled to presume that decedent would not attempt to cross ahead of the engine, and were therefore not chargeable with negligence in failing to take proper steps to prevent a collision after discovering decedent's peril.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Lydia J. Porter against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Martin L. Clardy and W. W. Graves, for appellant. John M. Redmond and Wm. Aull, for respondent.

BURGESS, P. J.

This is an action by plaintiff, the widow of E. B. Porter, deceased, against the defendant company, to recover the sum of $5,000 damages, under the provisions of section 2864, Revised Statutes, 1899, known as the "second section of the damage act." The petition upon which the case was tried was the second amended petition, in two counts; but as the recovery was upon the first count, the second count will not be further noticed.

Said first count alleges "that the death of the said E. B. Porter was due to the gross, wanton, and willful negligence of the defendant and its agents and employés, its engineer and fireman in charge of said train, as follows: (1) That the defendant, through its agents and employés, had knowledge of the dangerous conditions about, on, and surrounding said crossing and approach to the same, hereinbefore stated, at the place where the said E. B. Porter was killed, and that said crossing, on account of the conditions prevailing, was dangerous, and that a team and driver were liable to be caught on the said crossing on account of said prevailing conditions; and in failing to have its train slowed down and under control approaching said crossing, and in running the same up to said crossing at a high rate of speed. (2) In failing to sound the whistle or ring the bell of said engine as the said engine approached said crossing 80 rods before reaching said crossing, and in failing to continue to sound said whistle at intervals or to keep the bell ringing until said crossing was passed, as provided by law. (3) In sounding the locomotive whistle continuously on the immediate approach of said crossing, thereby frightening the team of horses driven by the decedent E. B. Porter, and preventing them from crossing to a point of safety. (4) In the failure of the defendant through its agents and employés to observe the perilous position of the decedent E. B. Porter with the team of horses on the crossing at which he was killed, in time to have stopped the train or to have prevented the collision and its results as herein described. (5) In the failure of the defendant and its employés, the engineer and fireman in charge of said train, to stop the same, or make an effort to do so, after discovering the peril of E. B. Porter, decedent, with the team on the crossing or to avert the collision with the said decedent and the said team. That by reason of the killing of the said E. B. Porter the plaintiff has been damaged in the sum of $5,000, no part of which has been paid or satisfied in any way. Wherefore, plaintiff asks judgment against the defendant for the sum of $5,000, and for her costs." By answer, defendant denied all the allegations in both counts, and pleaded contributory negligence on the part of the deceased. Plaintiff replied, denying all new matter in said answer contained. Upon a trial before the court and jury, plaintiff recovered a verdict upon said first count of the petition for $5,000, upon which judgment was rendered. Within four days after verdict, the defendant filed motion for new trial, which was overruled, and defendant appealed.

The material facts, as disclosed by the record, are substantially as follows: The deceased was killed by one of defendant's passenger trains about 6 o'clock on the evening of March 6, 1902, while attempting to cross the track of said railway while on his way with a wagon and team from Lexington to Wellington in Layfayette county. It was open daylight at the time of the accident. The only witnesses as to the accident were the fireman and engineer of the train, which was running at the time at a speed of about 30 miles an hour. The train was west bound from Lexington to Wellington, and on time when it left Lexington, about 5 or 6 miles east of the place of the accident. At the time of the accident deceased was sitting in a common farm wagon drawn by two horses. He had been engaged for some time in hauling flour from Wellington to Lexington for a milling company, and was familiar with this railway crossing, its situation and surroundings. The usual warning signal of danger was in plain view at the crossing. Back from the scene of the accident for at least a quarter of a mile northeastward, which was the direction from which deceased was traveling, and the direction from which the train that struck him approached, the county road and the railway ran practically parallel, and for the greater part of the way the county road was in proximity to the right of way. The elevation of the track was three or four feet above the county road, and the evidence...