Rollison v. Wabash R. Co.

• Decision Date: 24 November 1913
• Citation: 252 Mo. 525,160 S.W. 994
• Parties: ROLLISON v. WABASH R. CO.
• Court: Missouri Supreme Court

160 S.W. 994

252 Mo. 525

ROLLISON v. WABASH R. CO.

Supreme Court of Missouri.

November 24, 1913.

1. RAILROADS (§ 312) — OPERATION — CROSSING SIGNALS — STATUTORY PROVISIONS.

Under Rev. St. 1909, § 3140, requiring railroad companies to place a bell on each locomotive engine which shall be rung 80 rods from any highway crossing and be kept ringing until the engine crosses the highway, or to attach a steam whistle thereto which shall be sounded 80 rods from crossing and at intervals until the engine crosses the highway, and providing that the company shall be liable for all damages sustained by any person when such bell shall not be rung or such whistle sounded, the statutory duty is performed by either ringing the bell or sounding the whistle, and hence where the bell was rung for the statutory distance there was no negligence in connection with the giving of signals for the crossing.

2. RAILROADS (§ 320) — INJURIES AT CROSSINGS — INJURIES AVOIDABLE NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE.

Where a person is exposed to imminent peril on a street or at a public crossing, those in control of an approaching threatening instrumentality, who see him or by due care might see him in danger, must use due care to avert his injury by stopping if possible with the means at hand and safely usable.

3. RAILROADS (§ 316) — OPERATION — RATE OF SPEED.

There being no statutory regulation, trains may run in the country, away from congested populations, at any practicable rate of speed, and the rate of speed of a train by which a person is struck is not negligence per se or at all.

4. RAILROADS (§ 320) — CROSSING ACCIDENT — QUESTION FOR JURY.

Where an engineer on a train running a mile a minute first saw a traveler approaching a crossing when the train was 175 feet from the crossing, as a matter of law, he was not negligent in failing to stop before striking such traveler, and there was no question for the jury on this point.

5. RAILROADS (§ 312) — INJURIES AT CROSSINGS — INJURIES AVOIDABLE NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE.

The engineer of a train, who saw a person approaching a crossing when it was too late to stop the train, was bound to warn him by sounding the whistle, although the bell was ringing, where it was plainly ineffective to warn him.

6. RAILROADS (§ 348) — CROSSING ACCIDENTS — SUFFICIENCY OF EVIDENCE.

In an action for the death of a person struck by a train at a crossing, evidence held insufficient to show that the engineer failed to sound the whistle as soon as he saw decedent and that he was attempting to cross.

7. WITNESSES (§ 402) — CONTRADICTION OF WITNESS BY PARTY CALLING HIM.

Though a party who puts a witness on the stand thereby vouches for his credibility, he is not so far bound by his testimony that he may not show the facts to be different by other witnesses.

8. RAILROADS (§ 390) — INJURIES AT CROSSINGS — INJURIES AVOIDABLE NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE.

Where a man, who was very hard of hearing but had good eyesight, without looking, moved from a place of safety beside a railroad track to a place of danger on the track, immediately before an approaching locomotive, his negligence was the proximate cause of his consequent injury, and the humanity doctrine did not apply.

Bond, J., dissenting.

In Banc. Appeal from Circuit Court, Macon County; Nat. M. Shelton, Judge.

Action by Mary Rollison against the Wabash Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Barker & Prosser, of La Plata, for appellant. Jas. L. Minnis, of St. Louis, and Guthrie & Franklin, of Macon, for respondent.

LAMM, C. J.

Plaintiff, widow of William Rollison, sues in the Macon circuit court for statutory damages for her husband's alleged negligent death at a railroad crossing in the country. When her testimony is in, defendant offers an instruction in the nature of a demurrer to the evidence. The court signifies an intention to give it. Thereat she takes a nonsuit "with leave" and, failing to get it set aside on motion, takes an exception, and on apt and timely steps comes up.

The question here is: Was there a case for the jury? That question hinging on the pleadings and facts, attend to them.

The Pleadings. Assuming conventional allegations, the actionable negligence is alleged to be that the servants of defendant in charge of one of its engines, pulling one of its south-bound passenger trains, at a crossing known as Bumpus Crossing, after seeing decedent approaching the track there and on the track (quoting), "negligently failed to give the usual and ordinary signals of the approach of said train, and after seeing, or by the exercise of ordinary care could and would have seen, the dangerous position in which deceased was situated, and seeing, or by the exercise of ordinary care could and would have seen, the imminent peril of deceased, and that deceased was unaware of the near and dangerous approach of said train, negligently failed to sound the usual and ordinary danger signals in time to avert the injury complained of, and negligently failed and neglected to use the air brakes and other appliances provided for stopping said train, and negligently failed to use the appliances provided and at hand for putting said train under control, and did not at any time before striking deceased ring the bell or sound the whistle, but, on the contrary thereof, recklessly and negligently ran its said engine and cars upon and against the plaintiff's said husband, and the plaintiff's said husband was then and there and thereby instantly killed; that said injury to plaintiff's said deceased husband resulted from, and was occasioned by, the negligence, unskillfulness, and criminal intent of the officers, agents, servants, and employés of defendant whilst conducting and managing said train at and prior to the time it was run against and upon the body of deceased." The answer denied defendant's negligence and, in turn, charged the contributory negligence of decedent in enumerated specifications. The reply denied new matter.

The Facts. Separating the facts on which there is accord from those on which there is not, the undisputed ones follow, viz.: Defendant's tracks at Bumpus Crossing run north and south. An east and west public road crosses the railroad there at right angles. That east and west road also presently crosses (we infer) a north and south public road adjacent to, west of, and running parallel with, the railroad at the place. As there are two crossings in question and three roads, for convenience, and to avoid confusion, we will call the north and south public road "A," the east and west one "B," the railroad crossing "X," the road crossing "Y," and the railroad itself "Z." Decedent lived east of Z and south of B, south a half quarter and east a quarter. At Y he had his rural route mail box. He was 61 years old, with good eyesight, but very hard of hearing, an infirmity of long standing and getting sharply worse and worse with age; but he was not so deaf he could not hear engine "alarm signals." At X the roadbed of Z was elevated about two feet. At both X and Y, a man standing upright could, plainly and without break in sight, if he looked, see a train approaching from the north (or south) for, say, one mile. Decedent had long lived there and was familiar with the running time of the train that struck him. At X there is on the north a wing-fence of the usual height, but not so high as to hide a man standing upright. The town of La Plata is south of X about a mile and a half, and both A and Z run to that town. Of a winter's day (January 21, 1909, at 9 a. m.) a neighbor of decedent, Dickerson, was driving a work team to a spring wagon going south on A to La Plata. When he got to Y, he stopped and got out to read a sale bill posted there, and decedent came up on foot to get his mail from his box. The two neighbors, chance met, chatted a while, and then Dickerson went his way south on A. Decedent got his mail, some papers, and the next seen of him he was arising on the south side of said wing-fence, having been apparently stooped down there. At that time he was in B and about six feet from the rails at X and headed east that way. At that very time a regular south-bound passenger train a little late and running fast, say, a mile a minute, was within 200 or 175 feet of X. Its engine was equipped with an automatic bell which was sounding at the time and had been for the statutory distance. The customary crossing whistles had been given at the whistling post north of X. The engineer first saw decedent as he arose from behind the fence, as stated, and at once was advised by his conduct that he aimed to go right on across the track at X. It is undisputed that alarm whistles were sounded; but, as it is contended by appellant's counsel they were not given as soon as they might have been, and contra, by respondent's, that they were, the facts on that controversy will come out presently in due course when we reach disputed ones. It is undisputed that if decedent had looked he could have seen a train, as said, for a mile while talking with Dickerson and at any point between X and Y; that if the alarm whistle had blown when he was six feet from the track (and he had heard it) he still had time and space to save himself. But that, turning his head or glance neither to the right or left, and apparently unconscious of danger and preoccupied with his own thoughts, he pursued his way for a few steps and was instantly struck and killed as he reached the nearest rail at X; the train coming to a stop about a quarter of a mile to the south. So far as this record discloses, no eye saw him alive after he parted from Dickerson, save the engineer's, and he was a witness for plaintiff. The engineer testified, and there is no countervailing testimony, that he was at his post of duty and on the alert outlook; that he caught his first glimpse of decedent as he arose from behind the wing-fence about six...