Underwood v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 29 June 1914
• Docket Number: No. 1247.,1247.
• Court: Missouri Court of Appeals
• Parties: UNDERWOOD v. ST. LOUIS, I. M. & S. RY. CO.

168 S.W. 803

182 Mo. A. 252

UNDERWOOD v. ST. LOUIS, I. M. & S. RY. CO.

No. 1247.

Springfield Court of Appeals. Missouri.

June 29, 1914.

Rehearing Denied July 10, 1914.

1. RAILROADS (§ 330) — CARE REQUIRED IN GOING ON RAILROAD CROSSING.

A railroad crossing is itself a warning of danger, and no one can heedlessly enter thereon, relying on the persons running an approaching train to give him warning of its approach, without himself taking every reasonable precaution.

2. RAILROADS (§ 327) — ACCIDENTS AT CROSSING — DUTY TO STOP, LOOK, AND LISTEN.

A person must look and listen, when possible, before entering on a railroad crossing, and, when stopping is essential to make looking and listening effectual, he must stop.

3. RAILROADS (§ 350) — ACTION FOR INJURY AT CROSSING — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE.

In an action for the death of a rural mail carrier killed in a railroad crossing accident.

evidence held to make it a jury question whether decedent was negligent in not stopping to look and listen before entering on the crossing.

4. RAILROADS (§ 350) — ACTION FOR CROSSING ACCIDENT — QUESTION FOR JURY — WEIGHT OF EVIDENCE.

The weight of negative evidence that statutory signals were not given by a railroad for a crossing is for the jury.

5. RAILROADS (§ 346) — ACTION FOR CROSSING ACCIDENT — PRESUMPTIONS.

In a railroad crossing accident, deceased will be presumed to have listened for the statutory signals, in the absence of evidence to the contrary.

6. RAILROADS (§ 350) — ACTION FOR CROSSING INJURY — QUESTION FOR JURY.

In a railroad crossing accident, held, under the evidence, a question for the jury whether the railway company was negligent in failing to give the proper statutory signals.

7. RAILROADS (§ 346) — ACTION FOR CROSSING INJURY — BURDEN OF PROOF.

In a railroad crossing accident, the burden is on plaintiff to bring his case within the humanitarian doctrine.

8. RAILROADS (§ 338) — ACCIDENTS AT CROSSING — CARE REQUIRED.

Liability could not arise against a railway company for the failure of its engineer to act instantly in applying the brakes at a crossing.

9. RAILROADS (§ 351) — ACTION FOR CROSSING ACCIDENT — QUESTION FOR JURY.

In an action for a railway crossing accident, held error, under the evidence, to submit the case on the humanitarian doctrine.

Robertson, P. J., dissenting.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Nellie A. Underwood against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

R. T. Railey, of St. Louis, A. E. Spencer, of Joplin, and Barbour & McDavid, of Springfield, for appellant. I. V. McPherson and James A. Potter, both of Aurora, for respondent.

STURGIS, J.

This suit originated in Lawrence county, Mo., but was tried on change of venue in Jasper county. It was brought by the wife to recover for the death of her husband under section 5425, R. S. 1909. The husband was killed at a public road crossing some four miles southeast of Aurora by colliding with defendant's passenger train while he was attempting to cross the defendant's track at that point about noon, July 1, 1913. He was at the time a rural route mail carrier traveling out of Aurora in an open, ordinary, steel-tired, one horse buggy, with a large umbrella fixed to the seat and buggy bed for a shade. The defendant's track, as it approaches this crossing going from Aurora, the direction the train in question was going, runs somewhat south of east, curving to the south. The wagon road on which the deceased, Martin L. Underwood, was traveling runs directly east as it approaches this crossing going in the direction deceased was traveling. The train and the deceased were therefore both traveling in a generally eastward direction ; the railroad and wagon road being somewhat parallel but gradually converging towards and meeting at this crossing. The wagon road is south of the railroad until it reaches this crossing and then passes on east and north. As the deceased was traveling much the slower, the train came from behind him and caught him as the hind wheels of his buggy were leaving the track. It should be said, however, that the wagon road curves northward on entering the right of way, and the railroad, curving southeastward, causes the two to cross nearly at right angles. For convenience we will speak of the railroad as running east, though it angles and curves towards the southeast. The east-bound train, which killed deceased, was running about one hour late and on a slightly downgrade. It was using little steam, thereby lessening the noise of running. The deceased was also traveling downhill as he approached the crossing on a road more or less rocky at different places, thereby causing more or less noise by the steel tires of his buggy. A mild wind was blowing in a direction tending to carry the noise of the train away from the deceased. Back west of the crossing at the whistling post, 80 rods from the crossing, the wagon road was some 150 yards south of the railroad and on considerably higher ground. It continues on higher ground until it commences to descend some 250 feet from the crossing. Five hundred feet west of the crossing the two roads are about 180 feet apart.

The negligence counted on in the petition is a failure to give the statutory signals of keeping the bell ringing or sounding the whistle at intervals beginning 80 rods west of the crossing so as to warn the deceased of the approach of the train to the crossing, where the two did arrive at the same instant. The petition also pleads a violation of the humanitarian rule in that the persons operating the train saw, or with due care could have seen, the deceased and his apparent peril after he came into the danger zone and could have with reasonable care, but negligently failed to, so use the means at hand in giving alarms and checking the speed of the train as to avoid the collision. The defendant denies the allegations of negligence on its part and pleaded negligence of the deceased in going upon the crossing, a place of known danger, without taking reasonable precautions in stopping, looking, and listening for the coming train. The plaintiff recovered judgment for $10,000, the full amount allowed by law, but voluntarily remitted $2,500, and thereby defendant's appeal is to this court.

The conditions surrounding this crossing are extraordinary, making it a peculiarly dangerous one to persons approaching it from the west, as deceased was at this time, in case a train, as so happened on this occasion, should also be approaching from the west. For some distance west of the crossing, 500 feet at least, the wagon road, though only 180 feet distant from the railroad and gradually converging, is nowhere in sight of the same until right at the crossing. The wagon road is some 20 to 25 feet higher than the railroad until it starts to descend some 250 feet west of the crossing. Going down this hill the wagon road is itself in a cut for a distance of 150 to 175 feet; the deepest place being about 125 feet from the crossing where the cut is 4 or 5 feet deep. As the wagon road enters on the railroad right of way it leaves this cut and there is a distance of 25 to 40 feet nearer level, and some 10 to 12 feet of this, next to the track, is on a fill; the road there being narrow and ditches 3 to 5 feet deep at the sides. There is evidence that, after the horse is within 8 to 10 feet of the track, it would be difficult and dangerous to turn around. At a point about 15 to 25 feet west of the crossing, the wagon road veers from a due east and west course to the northeast and crosses the railroad at right angles; after crossing the railroad track the wagon road continues down the hill and veers to the southeast 300 or 400 feet, then turns north across a valley. Defendant's track from near the whistling post west of the crossing is cut in the north side of the hill until it reaches the crossing; the hill being about 25 feet high and lying between the track and the wagon road running west of the crossing above described. This hill between the railroad track and the wagon road at the time of the accident was covered by a dense growth of trees and bushes with dense foliage and growth of weeds; such hill, trees, bushes, and weeds beginning at a point 600 or 700 feet west of the crossing and continuing down to within a few feet of the crossing. On account of the hill and the obstructions thereon, a person approaching the crossing in the wagon road from the direction in which plaintiff's husband came could not see a train coming from Aurora at any point until his eyes were within 10 or 12 feet of the rail, at which time his horse would be going over the track and the train but a short distance therefrom. He could not easily hear a train running upon a track giving no signals because the sound made by the train was thrown away from him and across the valley by the hill between the track and the wagon road, and because of the fact that the wind at the time was blowing in a contrary direction. The evidence also showed that the train made very little noise. The train approaches the crossing in a cut; the wall of the cut on the right-hand side of the train going east, the side of the wagon road, was higher than any of the parts of the engine and owing to the curve to the south obstructed the engineer's view of the crossing itself until he had approached to within a distance of 440 to 460 feet of the crossing. The walls of the cut sloped backwards from the railroad; at the bottom of the cut it was 8 feet from the rail. One witness testified that at a point 25 or 30 feet back from the crossing a person could see a train only 3 to 4 rails' length, or 100 to 130 feet. Further back it could not be seen until right at the crossing. There is evidence of several witnesses that on other occasions they were along this road near the crossing and either...