Tetherow v. St. Joseph & D. M. Ry. Co.

• Decision Date: 23 March 1889
• Citation: 98 Mo. 74,11 S.W. 310
• Court: Missouri Supreme Court
• Parties: TETHEROW v. ST. JOSEPH & D. M. RY. CO.

11 S.W. 310

98 Mo. 74

TETHEROW v. ST. JOSEPH & D. M. RY. CO.

Supreme Court of Missouri.

March 23, 1889.

RAILROAD COMPANIES — ACCIDENT AT CROSSING — DAMAGES.

1. In an action by a widow against a railroad company to recover damages for the death of her husband, caused by the alleged negligence of defendant in failing to provide a sufficient crossing over its tracks on a public street, it appeared that defendant had three tracks crossing the street at right angles. Deceased was driving on top of a load of wood. The defect was at the third track, the last one reached by deceased in the direction he was going. This track was neither planked nor level with the road-way over a portion or all of the width of the street. In passing over the third track, the deceased was thrown off and run over. Held, that the evidence warranted a verdict for plaintiff.

2. Evidence offered to show the condition of the second track crossed by deceased before reaching the third was admissible as a description of the surroundings.

3. Where a witness of defendant testified that no other accident had ever happened at the crossing, it was permissible for plaintiff to show that no injury had since occurred there because the place had been graded off.

4. Plaintiff could state the number and ages of her minor children, to show the extent of the burden which the father's death placed on her.

5. Plaintiff was entitled to recover such damages as the jury "might deem just, with reference to the necessary injury resulting from such death," not exceeding $5,000, under Rev. St. Mo. § 2123.

Appeal from circuit court, Buchanan county; JOSEPH P. GRUBB, Judge.

Plaintiff is the widow of Levi Tetherow, deceased. She sues to recover damages under the statute for the death of her husband, charging that it was caused by defendant's negligence in failing to provide a good and sufficient crossing over its tracks on Fourteenth street, in St. Joseph, Mo. It is alleged that in consequence of this negligence Tetherow was thrown from his wagon while passing over the railroad crossing on a load of wood, and received injuries from which he died. The answer denied these allegations, and asserted that Tetherow's injuries resulted from his own carelessness. Plaintiff replied, denying the contributory negligence. The case was tried with the aid of a jury. There was evidence tending to show that defendant had three tracks crossing said street at right angles to it. Deceased approached the tracks from the south upon Fourteenth street. He was driving a pair of mules, and seated on top of a load of wood. The wood had been piled lengthwise in an ordinary wagon bed or box, until the latter was full, then other pieces were placed crosswise upon the top. The wood was thus raised some two or three feet above the top of the wagon-box. There was a stream between the first and second tracks, spanned by a bridge. The defect alleged, and place of injury, were at the third track, — the last one reached by Tetherow in the direction he was going. This third track was neither planked nor level with the road-way over a portion or all of the width of Fourteenth street. As to the extent of that condition the evidence conflicts. Near by was a depot of defendant's. A good plank crossing over this third track began there, and extended towards Fourteenth street. According to defendant's evidence it reached a point about the center of Fourteenth street. According to plaintiff's evidence it reached a point near the beginning of that street, leaving the track, across the whole width of the street, in the negligent condition described. There was evidence tending to show that deceased drove over the bridge, but in passing the third track his load was jostled out of place, some of his wood rolled down and hit the mules, he was thrown off, run over, and killed. On defendant's part there was evidence tending to show that before he reached these tracks the wood had shifted and begun to fall, and considerable evidence generally tended to show that the injury arose from other causes than the condition of the tracks. In the progress of the trial plaintiff was allowed to testify to the number and ages of her minor children. A witness for plaintiff was asked (on redirect examination) whether the railroad company had since repaired the place of the accident, and in reply said: "Yes, it has been graded off since."

Among the instructions given for plaintiff were these: "No. 1. The court instructs the jury that if they believe from the evidence that the defendant before and on the 12th day of September, 1884, owned two railroad tracks running across Fourteenth street, in the city of St. Joseph, and that said Fourteenth street was then and there a public street, and used by the public as such, then it was the duty of the defendant to provide and maintain good and sufficient crossing on said street where said tracks ran across the same; that is, such crossings as enable travelers with wheeled vehicles to pass over said tracks with reasonable safety. And if the jury believe from the evidence that the defendant had at said time carelessly and negligently permitted the rails of its said track to be and remain several inches above the road-bed and traveled way of said street, and several inches above the ground and road-bed between the rails of said track, and had carelessly and negligently permitted holes and depressions to exist in said street at said crossings, thereby rendering said crossing unsafe, dangerous, and unfit for travel; and that on September 12, 1884, said Levi Tetherow was driving his wagon and team along said street, at said crossing; and that said wood was then and there in a reasonably proper and safe condition on said wagon; and that by reason of said condition of said crossing his wagon was jarred and jostled, and by said jarring and jostling he was, while using ordinary care, thrown from his wagon and killed; and that plaintiff was, at the time of his death, his wife, — then the jury will find for plaintiff." "No. 3. The jury are instructed that if you find for the plaintiff, you may, in your verdict, give her such damages, not exceeding five thousand dollars, as you may deem fair and just under the evidence in the case, with reference to the necessary injury resulting to her from the death of her husband." "No. 7. Negligence is the failure on the part of a person or corporation to take such precautions, and observe such care, as ordinarily prudent persons take or observe under a given set of circumstances, and taking such precautions as aforesaid is ordinary care."

The court, at the request of the defendant, gave to the jury, among others, the following instructions, viz: "(a) Before the plaintiff is entitled to recover in this case, it must appear by a preponderance of the evidence to your satisfaction, that the injury was occasioned solely by the alleged defect in the crossing in proof, without any fault, neglect, or mismanagement, or want of ordinary care and attention on the part of the driver in guiding and controlling the movements of the team, contributing to cause or bring about the same." "(d) If you find from the evidence that at the time of the accident in proof the crossing over defendant's track was in such a condition that a person exercising ordinary care and bestowing ordinary attention to the road and to the movements of his team could drive along over said street in perfect safety, your verdict must be for the defendant." "(h) If you find from the evidence that the deceased was sitting on the top of a load of wood, driving his team; that before reaching defendant's track the wood, in driving to that point, had been jostled out of place to such an extent as that it was then insecurely loaded, and in danger of falling off; that the deceased did not look to see how the wood was riding, nor stop to adjust and fix the same, but drove on; and that in consequence of the shape and insecure position in which the wood lay on said wagon when it arrived at the crossing, some of it tumbled off and struck the mules, causing them to become unmanageable, and to run off, thereby causing the accident, — your verdict must be for the defendant."

The court refused the following instruction tendered by defendant: "(13) If the jury believe from the evidence that defendant's track mentioned had two crossings, — one at the point where Tetherow crossed at the time he was hurt; the other but a few feet easterly; that the condition and location of each were well known to him at and prior to that time; that the former was rough, difficult, and dangerous; that the latter, but a few feet distant, was easy, convenient, and reasonably safe for his team and loaded wagon to pass over; that on approaching these two crossings he was free to choose between them for his passage, and...