Swigart v. Lusk

• Decision Date: 14 February 1917
• Docket Number: No. 1872.,1872.
• Citation: 192 S.W. 138,196 Mo. App. 471
• Parties: SWIGART v. LUSK et al.
• Court: Missouri Court of Appeals

192 S.W. 138

196 Mo. App. 471

SWIGART v. LUSK et al.

No. 1872.

Springfield Court of Appeals. Missouri.

February 14, 1917.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Suit by J. M. Swigart against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Grant Emerson and Walden & Andrews, all of Joplin, for appellant. W. F. Evans, of St. Louis, Spencer & Grayston, of Joplin, and Mann, Todd & Mann, of Springfield, for respondents.

STURGIS, J.

The plaintiff sues for personal injuries received in a collision with defendant's passenger train while attempting to cross defendant's railroad in an automobile at a grade crossing in the city of Joplin. Plaintiff, when injured, was traveling east on Eighth street, which crosses defendant's track running northwest and southeast. The court sustained a demurrer to plaintiff's evidence on the ground of his being guilty of contributory negligence as a matter of law, and the correctness of this ruling is the sole question before us.

The train was approaching from the southeast and crossed Eighth street at an angle, though the photographs in evidence indicate that the crossing is nearly at right angles. The negligence alleged is the failure of defendant to give the statutory signals on approaching this crossing, coupled with an allegation that defendant had, for a long time, maintained an automatic electric signal bell at the crossing in question to warn travelers of an approaching train, which was allowed to become defective and failed to ring on this occasion. It is also alleged that the view of one approaching this crossing from the west is so obstructed by houses and other improvements that travelers coming from the west on Eighth street cannot see a train approaching from the southeast till very close to the crossing. For the purpose of this suit it must be conceded that the maintenance of this automatic bell at the crossing was purely voluntary on defendant's part, since there is no allegation of any such duty imposed by law, state or municipal. It is shown, however, that this bell had been maintained at this crossing for more than a year; that plaintiff had frequently passed over the crossing and knew such fact; that while other witnesses said this bell had failed to ring at other times when trains were approaching, plaintiff testified that he had never known it to fail.

The law in regard to warning signals at much-used street crossings is stated in 3 Elliott on Railroads, § 1157, thus:

"Where maintained, whether required by statute or not, the fact that the gate is open is held to be an invitation to cross and an assurance that the track can be crossed in safety; but such an invitation will not excuse the traveler from himself exercising care to avoid a collision. It is the duty of the company to close the gates on the approach of a train, but the traveler must not rely entirely upon its servant to do so. * * * Although not originally under obligation to do so, if the company has maintained a flagman at a particular crossing for a long time and his presence is notorious, travelers have, within limits, a right to assume, when he is absent, that no train is approaching, and his absence or permanent removal, without notice to the public, is evidence of negligence, but where, not knowing that a flagman had usually been stationed at the crossing, the traveler's conduct was in no way influenced by his absence, such absence creates no liability, nor does the absence of a flagman in any event absolve the traveler from the exercise of care."

The law as here stated is abundantly recognized in this state. Montgomery v. Railroad, 181 Mo. 477, 500, 503, 79 S. W. 930, 936, quotes the rule just stated by Elliott and adds:

"If on the other hand the flagman was not there, as plaintiff's evidence strongly tended to prove, and the custom of keeping him there was known to plaintiff, the plaintiff might well have concluded no trains were expected at that time, and such absence was a potent fact in considering her conduct in proceeding over the crossing. * * * The action of the defendant in maintaining a flagman at this public and much-used crossing was most commendable and after the public had become accustomed to seeing the flagman there and advised of his duties, it cannot complain that travelers lawfully using the crossing regulated their conduct * * * upon the implied assurance that the flagman would be there when trains were passing or approaching and finding no one when they came to the crossing would presume no train was near. To assume otherwise would be against all ordinary human experience."

To the same effect is Yonkers v. Railroad 182 Mo. App. 571, 168 S. W. 307.

It may be granted, but we do not so decide, that, in order to count on the failure of defendant to give warning signals at a crossing which are not required by law as an affirmative ground of defendant's negligence, it must be alleged, as well as proved, that same have been given for such length of time and with such uniformity that the giving of same amounts to a custom, and that such custom is known to and relied on by the person alleging the breach. It is claimed by defendant that plaintiff's petition is faulty in not alleging that plaintiff knew of the long maintenance of this electric alarm, and relied on same giving him warning on this occasion of an approaching train. These cases are cited: Percell v. Railway, 126 Mo. App. 43, 53, 103 S. W. 115; Voelker Products Co. v. United Railways, 185 Mo. App. 310 316, 170 S. W. 332; Paul v. United Railways, 152 Mo. App. 577, 587, 134 S. W. 3; Schumacher v. Breweries Co., 247 Mo. 141, 160, 152 S. W. 13. It will be found that none of these cases except the first one named supports this rule of pleading. But the question as to the failure of the electric gong to give the customary warning on this particular occasion being such negligence on defendant's part as would warrant plaintiff's recovery on that ground is of no importance in determining whether the demurrer to the evidence should be sustained. It is both alleged and proven that the defendant failed to give the statutory warning of ringing the bell or sounding the whistle at intervals as the train approached the crossing where the collision occurred. The cases holding that a failure in this respect is negligence per se are innumerable and that, too, without any showing that the plaintiff knew of and relied on a compliance with this statutory provision, as might not be true of one who recently came from another state. So too, for that matter, there are many cases holding that a violation of a city ordinance regulating speed or requiring certain signals establishes negligence per se without reference to plaintiff's knowledge of or reliance on the same. Hamm v. United Railways, 184 Mo. App. 5, 12, 167 S. W. 1070; Dey v. United Railways, 140 Mo. App. 461, 120 S. W. 134; Yonkers v. Railroad, 182 Mo. App. 558, 562, 168 S. W. 307. It may well be questioned whether plaintiff's knowledge of and reliance on such ordinance regulations does not, in all cases, merely affect the question of his contributory negligence rather than absolve the defendant from negligence.

The breach of an established custom as well as of an ordinance or statutory regulation or requirement is negligence per se on the part of the one committing the breach, and the knowledge of such custom or ordinance and reliance on same became important only when such custom or ordinance is invoked to excuse the conduct, otherwise negligent, of one seeking to recover for such negligence. This is true because negligence, contributory or otherwise, is determined from the viewpoint of the actor. In pleading it is generally sufficient to plead the duty imposed by law or custom and its breach with resultant injury. Contributory negligence is a defense. A plaintiff may, as did plaintiff here, anticipate the defense of contributory negligence and plead the facts which rebut or excuse the same. It is generally sufficient, however, when negligence, contributory or otherwise, is charged for the other party to simply deny the same, and one may prove without pleading, the particular facts which rebut or excuse negligence.

In the present case the plaintiff pleaded and proved defendant's negligence in failing to give the statutory signals and his consequent injury. He is therefore entitled to recover (Weigman v. Railroad, 223 Mo. 699, 721, 123 S. W. 38), unless the evidence shows his contributory negligence so clearly that reasonable minds can draw no other reasonable conclusion (Yonkers v. Railroad, 182 Mo. App. 558, 577, 168 S. W. 307). We need, therefore, only consider the failure of the electric gong to give the customary warning along with the other facts, such as the obstruction to sight and hearing, as bearing on the question of plaintiff's contributory negligence.

The facts stated favorably to plaintiff, mostly drawn from his own evidence, are that he was going east on Eighth street in his Ford automobile at a speed of ten to twelve miles per hour. He was acquainted with the surroundings at this crossing, and when he reached the intersection of Jackson avenue, a north and south street, and being then some 75 feet from the crossing in question, he slowed down to 8 miles per hour, or as he later stated, 6 to 8 miles. There was a house on the 50-foot lot between Jackson avenue and defendant's right of way which faced north and covered nearly the entire front of this lot. Other houses were to the rear of this one. This obstructed plaintiff's view of defendant's track to the south and southeast. As plaintiff approached defendant's track he says he listened and heard no signals or sound of a coming train, and noted that the crossing gong was not ringing. This induced him to believe that no train was approaching, and he proceeded at that...