Schmidt v. Missouri Pacific Railway Company

• Decision Date: 21 November 1905
• Parties: ANNIE B. SCHMIDT v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

90 S.W. 136

191 Mo. 215

ANNIE B. SCHMIDT v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Division Two

November 21, 1905

Appeal from Cole Circuit Court. -- Hon. Jas. E. Hazell, Judge.

Reversed.

M. L Clardy and Wm. S. Shirk for appellant.

The court erred in refusing to grant defendant's demurrer, at the close of plaintiff's evidence, and in refusing to peremptorily instruct the jury to find for the defendant at the close of all the evidence. (a) There is no dispute as to these facts, viz., that when Schmidt was at a point twenty feet south of where he was struck, he could have seen the train coming toward him, at least two hundred and fifty feet. (b) The undisputed evidence shows that Schmidt walked this twenty feet across two side tracks and on up to the main track, and that he stepped upon the main track, without, for a moment, even looking or listening for the coming of a train, and this, too, in the face of the fact that he was hard of hearing. (c) He stepped upon the track immediately in front of the engine, which he must have seen if he had looked, and must have heard even as deaf as he was, if he had paid any attention whatever to his surroundings. He was therefore guilty of such contributory negligence as bars him from a recovery. Wands v. Railroad, 80 S.W. 18; Moore v. Railroad, 176 Mo. 528; Carrier v Railroad, 175 Mo. 470; Guyer v. Railroad, 174 Mo. 344; Van Bach v. Railroad, 171 Mo. 338; Hook v. Railroad, 162 Mo. 569; Sharp v. Railroad, 161 Mo. 214; Tanner v. Railroad, 161 Mo. 497; Vogg v. Railroad, 138 Mo. 180; Maxey v Railroad, 132 Mo. 1; Mirrielees v. Railroad, 163 Mo. 470; Elliott on Railways, sec. 1166, and note p. 1776; Kelsay v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 566. The rule has always been that "a person who goes upon a railroad track, or proposes to cross it, must use his eyes and ears to avoid injury, and must be vigilant and watchful of the approach of a locomotive. The failure to exercise such vigilance is negligence per se." Harlan v. Railroad, 64 Mo. 480; Butts v. Railroad, 98 Mo. 272; Weller v. Railroad, 120 Mo. 635; Boyd v. Railroad, 105 Mo. 371. (d) Schmidt's negligence in not looking or listening for a train before he stepped on the track is emphasized by the fact that the whistle was not only sounded for the station and crossing, but when he was discovered approaching the track an alarm whistle was sounded. The bell was also kept ringing until after he was struck. The fact that he was partially deaf does not excuse him -- he was for that reason bound to be more diligent in looking. Purl v. Railroad, 72 Mo. 168; Zimmerman v. Railroad, 71 Mo. 476; Fusili v. Railroad, 45 Mo.App. 535. (e) Schmidt stepped upon the track immediately in front of the engine. Just one step from the south side of the track to the middle of the track brought him in collision with the engine. It is therefore self-evident that he did not look west at all, for to look was to see the engine coming toward or rather upon him. Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362. (f) The engineer was not bound to slow up his engine or try to stop it, until he saw him in a position of danger. He had a right to presume that Schmidt, being in full sight of his train, would not step upon the track in front of it. Guyer v. Railroad, 174 Mo. 344; Reardon v. Railroad, 114 Mo. 384; Bell v. Railroad, 72 Mo. 50; Maloy v. Railroad, 84 Mo. 270; Bunyan v. Railroad, 127 Mo. 12. (g) It devolved upon the plaintiff to show that the rate of speed in excess of five miles per hour, was a direct cause of the accident. This plaintiff not only failed to do, but to the contrary the defendant affirmatively showed by undisputed evidence that the train could not have been stopped in time to avoid striking Schmidt after the engineer discovered him in peril, if it had been running only five miles per hour, or even three. Fox v. Railroad, 85 Mo. 679; Taylor v. Railroad, 86 Mo. 457; Payne v. Railroad, 136 Mo. 562; Hook v. Railroad, 162 Mo. 569; Schmitt v. Railroad, 160 Mo. 43. And the fact that the train was running at a rate of speed prohibited by ordinance did not absolve Schmidt from the duty to look and listen for the coming of a train. The rule as to contributory negligence is not abrogated by reason of a violation of an ordinance as to speed. Weller v. Railroad, 120 Mo. 635; Duncan v. Railroad, 46 Mo.App. 198; Baker v. Railroad, 122 Mo. 533; Payne v. Railroad, 136 Mo. 562; Prewitt v. Eddy, 115 Mo. 283.

Silver & Brown for respondent.

(1) A rate of speed over twenty-five miles an hour in a populous neighborhood of a city is too great, and rebuts any presumption of negligence on the part of the party run over and killed by the train while attempting to cross the street. Hagan v. Railroad, 5 Phila. 179. To run a train at a rapid rate of speed across a public street in a city or town is prima facie willful negligence. Eskridge v Railroad, 89 Ky. 367. Willful negligence held to be "where the conduct of a party in fault was such as to evidence reckless indifference to the safety of the public or the intentional failure to perform a plain and manifest duty in the performance of which the public and the party injured had an interest." And in such case the defense of contributory negligence is not well taken. Where it appears that a person was killed at a crossing by a train running at a prohibited rate of speed, and that he could have had time to cross in safety had the train been running at a lawful rate of speed, the unlawful speed may be considered the proximate cause of the accident. Winstanly v. Railroad, 72 Wis. 375. The fact that a railroad company has not been prosecuted for repeated violations of a city ordinance limiting the speed of trains, does not tend to prove that such ordinance has been abandoned and become obsolete, and constitutes no defense to an action against such company for injuries caused by its negligence in running its trains at an excessive rate of speed. The court will not undertake to say to the jury just how many feet from a railroad track a person approaching a crossing should look for approaching trains before attempting to cross such track, but will leave that question to the jury. What the law requires, and all it does require, is that a person approaching a railroad crossing upon a public highway shall use ordinary care to avoid injury. "In the absence of evidence to the contrary, we think the appellee had the right to presume that the appellant would obey the city ordinance and would not run its trains at a greater rate of speed than four miles an hour at the point where the injury occurred, and while the wrongful conduct of the defendant in this regard would not excuse plaintiff from the exercise of reasonable care, yet in determining whether she did exercise reasonable care she is to be judged in the light of such presumption." Railroad v. Harrington, 131 Ind. 432. "The place at which one should look and listen is for the jury." Railroad v. Turner (Ind.), 69 N.E. 484; Railroad v. Kean, 65 Md. 394; Tuff v. Warman, 5 C.B.N.S. 585; Chesholm v. Electric Co., 24 A. & E. Ry. Cases, 635. "Travelers have a right to expect that railroad trains will be managed in conformity to law, including statutes and ordinances, and they are generally not negligent in acting upon the assumption that the speed will be limited or signals given as required by law." Shearman & Redfield on Negligence (5 Ed.), sec. 473. "Before the court will be justified in taking from the jury a question of contributory negligence, the acts must be so palpably negligent that there can be no two opinions concerning them." Bunan v. Electric Company (Wash.), 67 P. 214; Railroad v. Garvey, 108 Pa. St. 369; Ayres v. Railroad, 201 Pa. St. 127; 2 Thompson on Negligence (2 Ed.), sec. 1448, citing Metropolitan Ry. Case, 13 App. D. C. 370, and Lang v. Huston, 75 Hun 151; Railroad v. Lowe, 73 Miss. 203; Umley v. Railroad, 92 Iowa 622. Same doctrine in substance announced in the following cases in this court: Kenney v. Railroad, 105 Mo. 288; Jennings v. Railroad, 112 Mo. 268; Easley v. Railroad, 113 Mo. 237; Gratiot v. Railroad, 116 Mo. 450. Also in: Plummer v. Railroad, 73 Me. 593; Chaffee v. Railroad, 104 Mass. 108; Williams v. Grealy, 112 Mass. 79; Thompson v. Railroad, 110 N.Y. 636; Smith v. Railroad, 158 Pa. St. 84; Hicks v. Railroad, 167 Mass. 427; McGrew v. Railroad (Tex.), 74 S.W. 818. (2) This case really falls within the doctrine of the old case of Harlan v. Railroad, 65 Mo. 22. The doctrine of that case is cited with approval in the later case of Morgan v. Railroad, 159 Mo. 278, and a number of other cases. Fearons v. Railroad, 180 Mo. 208; Werner v. Railroad, 81 Mo. 374; Rine v. Railroad, 88 Mo. 400; Dlauhi v. Railroad, 139 Mo. 296. The doctrine of the Harlan and other cases referred to is that notwithstanding the contributory negligence of the deceased, the railroad will be liable for his death "if the company failed to discover his danger through the recklessness or carelessness of its employees, when the exercise of ordinary care would have discovered the danger and averted the calamity." It is very clear that the jury were warranted in inferring from the evidence in this case that if defendant's engineer had observed the speed ordinance, and had the train been running within the rate of speed limited by it, he could easily have checked the speed after he saw the peril of the deceased, and could have averted his death. Holden v. Railroad, 177 Mo. 56; Sluder v. Railroad, 189 Mo. 107; Riska v. Railroad, 180 Mo. 168; Heim v. Railroad, 90 Mo. 321; Prewitt v. Railroad, 134 Mo. 627; Peterson v. Railroad, 156 Mo. 560; Petty v. Railroad, 88 Mo. 308; Railroad v. McDonald, 43 Md. 534. "A jury may infer ordinary care and...