Sullivan v. Missouri Pac. Ry. Co.

• Decision Date: 27 June 1893
• Citation: 23 S.W. 149,117 Mo. 214
• Parties: SULLIVAN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

23 S.W. 149

117 Mo. 214

SULLIVAN v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

June 27, 1893.

ACCIDENT AT RAILROAD CROSSING — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — RATE OF SPEED — REGULATION BY ORDINANCE — INSTRUCTIONS.

1. In an action for the death of plaintiff's mother from injuries received at a railroad crossing in a city which had an ordinance prohibiting the running of trains faster than six miles an hour, the court instructed that it was decedent's duty to look and listen before stepping on the track, but, if the jury found that she saw the train, she had a right to presume, unless she knew to the contrary, that the person in charge of the train would not run faster than six miles an hour, and to act on that presumption. Held, that the instruction was proper, as advising the jury what, under the law, were decedent's rights and duties, and that it did not direct them to presume a fact concerning which there was evidence. Barclay and Gantt, JJ., dissenting.

2. An instruction that, though decedent was negligent in stepping on the track, yet if, after such negligence, defendant's employes in charge of the engine discovered, or could have discovered by the use of ordinary care, her condition, and its danger, and could have avoided injuring her by the use of ordinary care, and failed to do so, her negligence was no defense to the action, was proper.

3. An instruction that though decedent was guilty of negligence in stepping on the track, and defendant's employes in charge of the engine, after seeing her danger, could not have avoided injuring her, yet if their inability to avoid the injury was caused by running at an illegal speed, and they could have avoided it if they had been running at a lawful speed, the negligence of decedent was no defense to the action, was erroneous. Barclay and Burgess, JJ., dissenting.

In banc. Appeal from circuit court, Jackson county.

Action by Thomas L. Sullivan against the Missouri Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

The following is the opinion of the court in division No. 1, (BRACE, J.:)

"On the 3d of August, 1889, at the crossing of Lydia avenue and Front street, in the city of Kansas, an old lady, Mrs. Ellen Sullivan, was run over and killed by a train of defendant's freight cars, being propelled by a switch engine along said Front street and over said crossing. In this action, afterwards instituted by the plaintiff, her only minor child, he obtained judgment in the circuit court of Jackson county for $5,000, under the statute, for her death. The defendant appeals.

"By the ordinance of the city of Kansas, the running of a locomotive and cars within the city limits at a greater rate of speed than six miles an hour is prohibited. The evidence of the plaintiff tended to prove that, when Mrs. Sullivan was struck by defendant's cars, the train was running at the rate of about 20 miles an hour, and that no bell was ringing nor whistle blowing. That it consisted of a switch engine and two box cars in front of it. That Mrs. Sullivan and six or seven other ladies had been visiting a lady residing on the north side of the railroad track and Front street, and near the point where she was killed. That, leaving her house, they approached the crossing, and all started to cross over, four or five of the ladies in advance, followed by a Mrs. McKeever and Mrs. Sullivan, a few steps in their rear, Mrs. McKeever leading and Mrs. Sullivan following. The ladies in advance crossed the track, and, just as Mrs. McKeever stepped upon it, some one exclaimed, `The switch engine is coming.' Mrs. McKeever answered, `We will make it,' and stepped across the track. As she was stepping off the track, Mrs. Sullivan looked up and down the track, stepped on it, and, as she did so, either tripped against the rail, or caught her foot in her dress, and fell. She was a large woman. She got partly up, fell again, struggled towards or onto the south rail, and was struck before she could get over it, and died within a minute. That the train ran on, after passing over her, about a block before it stopped. That at the time Mrs. Sullivan stepped on the track the train was distant from the crossing from two to four hundred feet. That the track was straight, and in plain view of the operatives. That such a train, running at the rate of 6 miles an hour, could be stopped in about 10 feet; at 8 miles an hour, in 15 or 16 feet; at 10 miles an hour, in 18 or 20 feet; at 15 miles an hour, in 40 or 50 feet; and at 20 miles an hour, in 150 feet; at 25 miles an hour, in about 225 or 250 feet. The evidence for the defendant tended to prove that the train consisted of a switch engine and four freight cars, two loaded and two empty, the engine in the middle of the train; that it was running from eight to ten miles an hour; that the bell was ringing and the whistle blowing; that the operatives discovered the ladies approaching the track when the train was about a block from the crossing; that they did not check the speed of the train; that four of the ladies crossed the track; that the deceased came up near the track, stopped, looked in the direction of the coming train, and when it had approached within the distance of six or eight feet, as one witness says, or within the distance of a car length of the crossing, as other witnesses say, she stepped on the track, fell, and was killed; and that nothing could have been done that was not done after she stepped upon the track that could have prevented the train from striking her. The evidence of the defendant further tended to prove that such a train, running at the rate of 6 miles an hour, could not be stopped inside of 35 or 40 feet. At the rate of 8 miles an hour, it would take 55 or 60 feet to stop; at 10 miles an hour, between 70 and 80 feet; at 12 miles an hour, about 100 feet; at 15 miles an hour, about 115 or 120 feet; and at 20 miles an hour about 150 feet.

"1. The errors complained of as ground for reversal are the refusal of the court to direct a verdict for the defendant on the evidence, and the giving of the following instructions for the plaintiff: `(4) You are instructed that while it was the duty of Ellen Sullivan to look and listen before stepping upon the track, yet, if you find from the evidence that she did see the train, then she had the right to presume, unless she knew to the contrary, that the person in charge of said train would run the train at a rate of speed not exceeding six miles per hour, and to act upon said presumption. (5) Although you may believe from the evidence that Ellen Sullivan was guilty of negligence in stepping upon the track, yet if you further find from the evidence that, after said Ellen Sullivan was guilty of negligence, the agents, servants, and employes of defendant in charge of the locomotive and cars discovered, or could have discovered by the use of ordinary care, her condition, and the danger of the same, if it was dangerous, and could have avoided injuring her by the use of ordinary care, and failed to do so, then such negligence of said Ellen Sulllivan is no defense to this action; [and in this regard the court further instructs you that although you believe from the evidence that Ellen Sullivan was guilty of negligence in stepping upon the track, and although you may believe from the evidence that the servants, agents, and employes of defendant in charge of said train, after seeing her on the track, and discovering the danger of her position, if it was dangerous, could not have avoided injuring her by the use of ordinary care, yet if you further find and believe from the evidence that their inability to avoid such injury after discovering her condition was caused by their running at an illegal rate of speed, and if they had then and there been running at a legal rate of speed they could have avoided injuring her, by the use of ordinary care, then such negligence of said Ellen Sullivan is no defense to this action.]' There was no error in the refusal of the court to direct a verdict for the defendant on the evidence. To have done so would have been to have totally ignored the evidence for the plaintiff. It is clear from the evidence that the defendant's servants were running this train along and across the public streets of the city at a rate of speed in excess of that prescribed by the city ordinances; and there was evidence upon which the jury might well have found that the deceased, in attempting to cross the defendant's track (laid and operated in one of those streets) was in the exercise of ordinary care and prudence. To have declared, as a matter of law, that she was not, in this case, would have been to declare that a citizen lawfully pursuing his way across a public highway, who comes to a railroad track laid along it, and, before he enters upon it, looks (as a careful and prudent person should do) up and down the track for danger, and sees an approaching train distant two to four hundred feet, (as plaintiff's evidence tended to show,) whose rate of speed he cannot determine, for the reason that it is coming directly towards him, but who, relying upon the assurance that the law gives him that the train is being run at no greater rate of speed than six miles an hour, then undertakes to make the next three or four steps in his pathway that will safely land him across the track, is, by so doing, guilty of negligence, and forfeits all right to protection against the negligence of the railroad company; it is against reason and the law. Eswin v. Railway Co., 96 Mo. 290, 9 S. W. Rep. 577; Kellny v. Railway Co., 101 Mo. 67, 13 S. W. Rep. 806. A reasonably prudent person might well suppose that he could safely cross the track under such circumstances. It was for the jury to determine, under all the circumstances, as detailed in the evidence, whether the deceased acted as a reasonably prudent person would have acted in her situation in attempting to do so. The...