Richey v. Missouri Pacific R.R. Co.

• Decision Date: 29 April 1879
• Citation: 7 Mo.App. 150
• Parties: GRACE RICHEY ET AL., Respondents, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellants.
• Court: Missouri Court of Appeals

7 Mo.App. 150

GRACE RICHEY ET AL., Respondents,

v.MISSOURI PACIFIC RAILROAD COMPANY, Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 29, 1879.

1. Where a train of cars and a wagon collide at a railroad-crossing, at which, owing to a high bank and a curve in the road, the locomotive could not be seen or heard by the driver of the wagon until within ten seconds in time and three hundred feet in distance, the jury are not bound to infer from the presence of the wagon on the track at the time of the collision that the driver did not, in the absence of the usual signal by the bell, use proper care.

2. In such a case, negligence will not be presumed on either side; and where the driver is killed by the collision, the plaintiff is not bound to establish affirmatively, by the evidence of eye-witnesses, that the deceased did not by his negligence contribute to the injury.

APPEAL from St. Louis Circuit Court.

Affirmed.

CLINE, JAMISON & DAY, with T. J. PORTIS, for appellant: The court erred in permitting the case to go to the jury. There was no evidence fit or proper to be submitted to them for their consideration.-- Harlan v. Railroad Co., 64 Mo. 480; 65 Mo. 22; Fletcher v. Railroad Co., 64 Mo. 484; Maher v. Railroad Co., 46 Mo. 367; Gorton v. Railway Co., 45 N. Y. 662; Railroad Co. v. Rathgel, 32 Ohio St. 66; Havens v. Railroad Co., 41 N. Y 296; Railroad Co. v. Loomis, 13 Ill. 549; Whart. on Neg., sect. 384; Shear. & Redf. on Neg., sects. 488, 488 a; Railroad Co. v. Harlam, 4 Vroom, 149; 33 N. Y. 147; Runyan v. Railroad Co., 1 Dutch. 357; Railroad Co. v. Gretzner, 46 Ill. 74; Railroad Co. v. Still, 19 Ill. 508; Railroad Co. v. Houston, 95 Otto, 697.

W. B. THOMPSON, for respondents: The question of negligence was properly submitted to the jury.--Redf. on Rys. 393; Kennedy v. Railroad Co., 36 Mo. 364; Staed v. Continental Imp. Co., 95 U. S. 161. The legal presumption is that the driver stopped and listened before crossing the railroad.-- Railroad Co. v. Weber, 76 Pa. St. 157; Railroad Co. v. Weiss, 79 Pa. St. 387.

BAKEWELL, J., delivered the opinion of the court.

This is an action, under the statute, by the surviving children of William F. Richey and Dora, his wife, for damages on account of the negligent act of the defendant in running over and killing the parents of the plaintiffs, on August 28, 1877. The answer is a general denial, and an allegation of contributory negligence on the part of the deceased. There was a verdict and judgment for the plaintiffs, and the defendant appeals.

The accident happened at the crossing of the Big Bend Road, between Sutton and Laclede Stations, about eight miles from the main depot of the road in St. Louis. The Big Bend Road is a public road, fifty feet wide, macadamized for twenty feet in the centre, running north and south, and crossing the railroad track at right angles. East of the Big Bend Road there is a curve in the railroad track, and between the railroad and the highway is a bank of earth twelve feet high, which slopes down to the intersection of the road and the track, at which point it is four feet high. This hill is covered with timber, brush, and high weeds. One sitting in a wagon in the middle of the track can see east along the railway about five hundred feet; sitting in a wagon north of the track, with his horse on the track, he could see a locomotive in the same direction about four hundred feet off; sitting in the wagon with his horse's head on the track, he would be able to see a locomotive at a distance of about two hundred and fifty feet. Owing to the hill, the curve, and the timber, the whistle of a locomotive and the noise of an approaching train would not be heard in ordinary weather, by one listening at the crossing, for a distance of more than three hundred yards. If the wind was blowing freshly against the advancing train, it could hardly be heard by one at the crossing until it came in sight. The Big Bend Road is a down-grade south to the track, and the track is a down-grade west towards the road. The wind was from the west at the time of the accident.

The last that was seen of William F. Richey alive, he was driving home in a covered wagon, containing his wife and his two little children, the plaintiffs in this case. At about fifteen minutes after five, he was seen driving at a slow trot down the declivity of the Big Bend Road leading south to the railroad track, and at a distance of two hundred and fifty yards from the track. He was sober, a man of good habits, who had once been a brakeman on the road, and who was in the habit of going to St. Louis both by rail and in a wagon, and was familiar with the crossing, and knew when trains might be expected. There is some evidence that the passenger train coming from the east was somewhat behind time, and that a freight train was heard to whistle at the time when the passenger train might be expected. The train from St. Louis came with unusual speed round the curve; it was running about twenty-five miles an hour; it struck Richey's wagon between the fore wheels and the horses. He was instantly killed; his wife and children were found in a mangled condition on the cowcatcher. Mrs. Richey died in a few minutes. The children were badly hurt. The testimony is conflicting as to whether the whistle was sounded or the bell rung for the crossing. There is testimony tending to show that no bell was rung, and that the only whistle was the alarm-whistle when the wagon came in sight, as the train rounded the curve and the collision was inevitable.

The appellant claims that the case should have been taken from the jury; that the mere fact, unexplained, that the wagon of Richey was on the rails at the time of the accident, is conclusive as to such contributory negligence as precludes a recovery. Upon this contention the appellant rests his case; and, indeed, it is manifest that unless he is right in this, the judgment ought not to be disturbed. There was some evidence of negligence on the part of the defendant directly contributing to the accident. The instructions were warranted by the evidence, and cannot be complained of, unless on the theory that the evidence was conclusive as to contributory negligence; and no material error seems to have been committed to the prejudice of the appellant in the admission or exclusion of evidence.

Does the presence of the deceased on the track at the date of the accident, under the circumstances detailed, make out such a prima facie case of negligence that, without proof of something to justify it, the jury were bound to find for the defendant? That is the only question for our consideration. We do not think that it does. The crossing was an extraordinarily dangerous one, and the deceased was bound, therefore, to use extraordinary care. The fact that he had advanced so far that his fore-wheel was on the rails at the time of the collision, does not show that he did not use all the care required. What would the utmost care require? It does not appear that he could do more than stop and listen as he came within a few feet of the track. If he stopped to listen when the heads of his horses were within twenty feet from the rails, he himself would be about thirty or thirty-five feet from the centre of the track. In that position he could see about three or four hundred feet east, or to a point a little beyond the frog of Sutton's switch, which was parallel with and on the south or opposite side of the main track, and on which a freight-train was standing. His horses were slow and gentle farm-horses; the wind was fresh against the advancing train. If there was no whistle and no bell, there is testimony that in this position he could hear nothing, though he listened, until...