Sanguinette v. Mississippi River & B. T. Ry.

• Decision Date: 29 March 1906
• Parties: SANGUINETTE v. MISSISSIPPI RIVER & B. T. RY.
• Court: Missouri Supreme Court

95 S.W. 386

196 Mo. 466

SANGUINETTE v. MISSISSIPPI RIVER & B. T. RY.

Supreme Court of Missouri, Division No. 2.

March 29, 1906.

Rehearing Denied May 22, 1906.

1. APPEAL—DEFECTS IN ABSTRACT—WAIVER.

Under Supreme Court rule 11 (73 S. W. vi), providing that, if the respondent is not satisfied with the abstract prepared by the appellant, he shall deliver to the appellant a complete or additional abstract at least 15 days before the cause is set for hearing, failure of respondent to deliver a complete or additional abstract or to file a motion to dismiss or strike from the docket, together with a participation in the argument on the merits, constitutes a waiver of technical defects in the abstract.

2. SAME—ABSTRACT OF RECORD—SUFFICIENCY.

Under Supreme Court rule 13 (73 S. W. vi), providing that, where a cause is appealed upon an abstract of record, the abstract shall set forth so much of the record as is necessary to an understanding of all questions presented for decision, an abstract which sets forth so much of the record as is necessary to a complete understanding of all questions involved, is a substantial compliance with the rule, although it does not clearly separate the record entries from matters which should have been incorporated in the bill of exceptions.

3. RAILROADS — CROSSING ACCIDENTS — CONTRIBUTORY NEGLIGENCE.

Deceased, who was perfectly familiar with a railroad crossing, approached it in a farm wagon driven at a slow walk along a road, from which the occupants of the wagon, while from 25 to 50 feet away from the crossing, could see a train approaching at a distance of from 200 to 450 feet. The wagon was not stopped, and there was no evidence that deceased looked for an approaching train. Another occupant of the wagon saw an approaching train just as the horses reached the track, but the train was not seen by deceased or the driver of the wagon, and the vehicle was struck and deceased killed. Held, that deceased was guilty of contributory negligence as a matter of law.

Appeal from Circuit Court, Jefferson County; Frank R. Dearing, Judge.

Action by Katie Sanguinette against the Mississippi River & Bonne Terre Railway. From a judgment for plaintiff, defendant appeals. Reversed.

Edward A. Rozier, John H. Malugen, and James F. Green, for appellant. H. B. Irwin and Byrns & Bean, for respondent.

BURGESS, P. J.

This is an action by plaintiff for $5,000 damages on account of the death of her husband, Henry A. Sanguinette, who was killed on the 16th day of August, 1902, through and by reason of the alleged negligence of defendant. The petition of plaintiff, leaving off the formal parts, is as follows: "Plaintiff states that the defendant is and was at all the times hereinafter mentioned a corporation organized under the laws of the state of Missouri, owns and operates a line of railway from Riverside, in Jefferson county, to Doe Run in St. Francois county, all in the state of Missouri. Plaintiff states that she is the widow and survivor of Henry A. Sanguinette, deceased. Plaintiff states that the tracks of defendant are laid across a certain public highway in said Jefferson county, being known as the county road leading from Festus to Rush Tower in said county; that said crossing is at a point on defendant's road immediately south of its station known as Genevieve; the tracks of defendant at said crossing being on a grade a few feet higher than the natural level of the ground at that point and higher than the level of the county road on either side of said tracks, so that persons using said county road at that point are compelled to go up the grade aforesaid to get onto the tracks of defendant. Plaintiff says that on the 16th day of August, A. D. 1902, while her husband, Henry A. Sanguinette, now deceased, was being driven and lawfully riding in a two-horse farm wagon along and upon said highway at the point of crossing defendant's tracks as aforesaid, a certain locomotive and train of cars were driven along and upon said railroad of defendant up to, upon, and across said public highway at the said crossing thereof, and the agents and servants of defendant in charge of said locomotive and train of cars wholly failed to ring the bell thereon at a distance of 80 rods from said crossing and to keep the same ringing until said locomotive had crossed said highway, and also wholly failed to sound a steam whistle at the distance of 80 rods from said crossing, and to sound the said whistle at intervals until said locomotive had crossed said highway, by means and in consequence of which default and neglect of defendant's said servants and agents said locomotive ran and struck with great force and violence upon and against the two-horse wagon aforesaid in which her said husband was riding, and the same was overturned, broken, and crushed, and her said husband was with great force and violence thrown from and out of said two-horse farm wagon to the ground, or into the cattle guard of defendant; that he was instantly killed, his neck was broken, and his body otherwise badly bruised and crushed. Plaintiff says that by reason of the premises she has been damaged in the sum of $5,000, for which she prays judgment." Defendant's answer was a general denial and a plea of contributory negligence on part of deceased. To which answer there was a replication denying generally new matter therein pleaded. The trial before the court and jury resulted in a verdict and judgment for plaintiff for $5,000. Defendant appeals.

Defendant's road, known as the "Mississippi River & Bonne Terre Railway," extends from Doe Run, in St. Francois county, in a northerly direction to Riverside, in Jefferson county. There is a road crossing of this railway, known as the "Ste. Genevieve Road," running in an easterly direction, and crossing the railroad at a point a short distance south of Genevieve Station. On the day of the injury the deceased, Henry Sanguinette, his son, James Sanguinette, and V. E. Canopa were driving east on this public road. It was about 6 o'clock in the afternoon of the 16th of August, 1902. Canopa and James Sanguinette sat on the front seat of the wagon and Henry Sanguinette immediately behind them. James occupied the driver's seat and Canopa sat on his left. Henry Sanguinette owned one of the horses in the team, and Canopa the other. They had been engaged in threshing during the week and were on their way home, they living some distance east of the crossing. It was in the testimony that all the parties were familiar with the crossing, having driven over it on several occasions, and that they also knew the usual time of the train passing north. On this occasion the train was about an hour late and was running, perhaps, 35 miles an hour. As the team was going over the crossing it was struck by the train.

On part of plaintiff the following testimony was offered:

Katie Sanguinette, the plaintiff, testified that she was the widow of Henry Sanguinette, who was 43 years old at the time of his death; that his hearing and eyesight were good; that in going to Festus, Mo., he used the road known as the "Ste. Genevieve Road," which crossed the Mississippi River & Bonne Terre Railway; that he had lived in that neighborhood all of his life, and traveled the road on an average of once a week.

V. E. Canopa testified that during the week prior to the death of Henry Sanguinette he (the witness) had worked with him; that they were engaged in threshing; on their way home on Saturday afternoon of the accident, he and young James Sanguinette and Henry Sanguinette, the deceased, rode together in an ordinary farm wagon, James, who was about 19, sitting in front on the driver's seat to the right, and witness to his left, and Henry Sanguinette sitting immediately behind them; that they got to the Genevieve crossing about 6:30 in the afternoon; that all three of the parties were familiar with the crossing; the horses were in a walk and were going about 2½ or 3 miles an hour; that when they got up near the railroad he looked for a train, but saw none, and then continued to drive on; they did not stop at any time; that they were right on the crossing when they discovered the train; that the engine struck the front wheels of the wagon; that he did not hear any whistle or bell; that his hearing and eyesight were good; that Sanguinette's boy was driving the wagon; one of the horses in the team belonged to Henry Sanguinette, and the other one to witness; that as they were driving toward the track there was a big lot of weeds there, and when he was past the weeds he saw the train and it was too late to jump. The testimony as to the weeds being on the right of way was objected to by defendant. On cross-examination the witness was asked the following questions: "Q. You did see a train that day, Mr. Canopa? A. Yes, sir; after I had approached the track, whenever it was about 30 yards away. Q. You say you saw the train when it was 30 yards from the crossing? A. After we got on the crossing it was about the trestle. Q. You say that was about 30 yards away? Yes, sir. Q. You say the horses were going up to the crossing? A. Yes, sir; they were going upon the crossing. Q. The horses were going upon the crossing when you looked up and saw a train? A. Yes, sir. Q. The train at that time was at this little trestle, or bridge, about here [indicating on photograph], about 30 yards south? A. Yes, sir. Q. South of the crossing? A. Yes, sir. Q. And the team was going up on to the crossing? A. Yes, sir; just approaching, got up about on it. Q. Well, had you looked for a train before that? A. We was sitting facing as we came up to the track. Q. Whereabouts did you look? A. We sat in the seat. Q. How far from the track were you? A. I guess 30 or 40 yards. Q. You looked for the train when you were 30 or 40 yards back from the crossing? A. Yes, sir. Q. When you were 30 or 40 yards back from the crossing you looked both ways for the train? A. Yes, sir. Q. And...