Smith v. St. Louis Southwestern Ry. Co.

• Decision Date: 14 June 1910
• Citation: 150 Mo. App. 1,129 S.W. 719
• Parties: SMITH v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Missouri Court of Appeals

129 S.W. 719

150 Mo. App. 1

SMITH v. ST. LOUIS SOUTHWESTERN RY. CO.

St. Louis Court of Appeals. Missouri.

June 14, 1910.

1. RAILROADS (§ 330)—COLLISIONS AT CROSSINGS— DUTY TO STOP, LOOK, AND LISTEN.

A traveler approaching a railroad crossing may rely on the performance by the railroad company of its statutory duty to signal the approach of a train, and, where he is in a position to hear the whistle or bell if sounded, he need not stop, go forward to the track, and look both ways to see if a train is approaching.

2. APPEAL AND ERROR (§ 1003)—REVIEW—EVIDENCE.

Where, in an action for injuries in a collision at a crossing, the evidence showed a failure to ring the bell or sound the whistle, and that, owing to the growth of weeds 10 feet high along the highway, the engine could not be seen by the traveler until it was too late to avoid the accident, the testimony of the traveler

and his companion that they did not know of the approach of the train, though they listened and looked for one, was not contrary to the physical facts, and the court on appeal cannot disregard it.

3. RAILROADS (§ 348)—COLLISIONS AT CROSSINGS —NEGLIGENCE—EVIDENCE.

In an action against a railroad for injuries to a team in a collision at a crossing, evidence held to justify a finding of actionable negligence on the part of the railroad.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by Adam Smith against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

S. H. West and Wammack & Welborn, for appellant. T. D. Hines, for respondent.

REYNOLDS, P. J.

Plaintiff and a companion were traveling in a buggy drawn by two mules. They came up to the railroad right of way of defendant from the south, then drove east along the south side of this right of way to the public crossing for a distance estimated by plaintiff's witnesses at from 75 to 200 yards west of the crossing of the public road, or, as testified to by defendant's witness, a measured distance of exactly 450 feet west of the crossing, then turned south along the public road and drove up a rather steep incline to the top of the dump upon which rested the track. It appears that the railroad at the point designated was on an embankment or dump, as it is called, some six or seven feet above the surrounding land. The dirt road along which plaintiff was driving before it turned to cross the railroad track and as it neared the crossing was over an old sawmill site, where there was old decaying and decayed sawdust, so that, as it is claimed, the buggy and the mules made but little noise in going over this part of it along the side of the railroad right of way. The team was being driven in a walk not trotting. The testimony is to the effect that the railroad track west of the crossing runs straight and over a level country for about half a mile, being built along this stretch on the dump referred to above. There was testimony to the effect that the view of the plaintiff and his companion to the east of the crossing was unobstructed. Their view toward the west or back of them and toward the track, according to testimony on the part of plaintiff, was obstructed by a thick growth of weeds from six to ten feet high and by willows growing upon and along the right of way of defendant between the dirt road and the track, so that, according to the testimony of plaintiff and of his companion, the two men in the buggy could not and did not see above their tops or through them. To quote plaintiff, he testified that he was "just driving along and the right of way was all growed up with weeds and willers, and it was almost impossible to see anything. * * * We was looking for trains. We drove up on the track, and there was a loose engine within 40 or 50 feet. I hit the mules to make the crossing, and they wouldn't cross. I jumped out. They never whistled nor give no signal at all, or even rang the bell that we heard of. They did whistle just about the time they struck the mules— two little short whistles." Asked if the whistle had sounded at a distance of 80 rods away from the crossing, plaintiff answered, "No," nor did they keep the whistle sounding as it approached the crossing, nor ring the bell. The right of way, he further testified, was grown up so that you could not see. The weeds and willows were on the right of way west of the crossing and on the side of the dump. He further testified that these weeds, willows, and briars growing along there were six feet and more high. "I am satisfied," said plaintiff, "that some of them were 10 feet high. I am sure they were that high." On cross-examination, counsel for defendant said to him that he had testified to the jury that, on account of this growth, he could not see an engine and cars on the track at that point. Counsel then asked him if at the time he turned and went on the right of way, if he had stopped and listened to see if he could hear a train coming on that track. Plaintiff answered that he did not stop, but had listened and looked for a train and kept on moving very slowly, and did not see the train until his mules were on the track or just in the act of going on the track, and the train or engine was then about 40 or 50 feet from him. Asked if, after he saw the train, he did not have plenty of time to have driven across if his mules had gone, plaintiff answered he did not think so, that he thought if the mules had crossed there they (meaning the engine) "would have got us, mules and all." Givens, the man who was in the buggy with plaintiff and who was driving, testified that they did not see the train until it was on them; that the train was a loose engine with the tender attached; never heard it until it was too late; never heard it at all until they saw it, "and it was pretty near on us when we saw it;" heard no signal; if one had been sounded could have heard it; there was nothing to hinder from hearing; was driving along in a walk and stopped within about 300 yards of the road, and were there awhile, and then got in the buggy and drove across. Asked if they looked and listened for the train, he answered that they could not have seen it from where they looked; saw the train after they drove up on the crossing, but "you could not see it until you got on the track the way the condition of the track was in, weeds and willers and everything else, and the shape the road came up to the track, too." The weeds and willows and growth had leaves on them and were green. As near as witness knew the names of the weeds, they were wild sunflowers. There were other weeds, wild grass, and the willows. The weeds were tall weeds. He heard no signal, no whistle, no bell, at the distance of 80 rods from the crossing. If either had been sounded, he did not hear it. On cross-examination, asked if as he approached the track dump he could have looked up and down and seen the engine, the witness answered that, if a man drove up and looked, he could have seen if he got in the middle of the track, but he could not do that before he got up on the middle of the track. Asked if before putting the team right on the track they...