Van Bach v. Missouri Pacific Railroad Co.
| Decision Date | 24 December 1902 |
| Parties | VAN BACH v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.
Reversed.
Elijah Robinson for appellant.
But for the grossest kind of negligence on the part of plaintiff's husband, the accident would not have occurred. It was clearly and conclusively shown by the testimony of plaintiff's own witnesses, as well as by the testimony of the witnesses for the defendant, that plaintiff's husband, while at any point within sixty-five feet of the place where the accident occurred, if he had looked, could have seen the car approaching in time to have stopped and avoided the accident. The court should therefore, have sustained defendant's demurrer to the evidence. Tabor v. Railroad, 46 Mo. 353; Fletcher v. Railroad, 64 Mo. 484; Harlan v Railroad, 64 Mo. 480; Henze v. Railroad, 71 Mo 476; Pearl v. Railroad, 72 Mo. 168; Turner v. Railroad, 74 Mo. 602; Kelly v. Railroad, 75 Mo. 138; Lenix v. Railroad, 76 Mo. 86; Hixon v. Railroad, 80 Mo. 340; Stepp v. Railroad, 85 Mo. 229; Kelley v. Railroad, 88 Mo. 534; Butts v. Railroad, 98 Mo. 272; Hanlon v. Railroad, 104 Mo. 381; Dlauhi v. Railroad, 105 Mo. 645; Boyd v. Railroad, 105 Mo. 371; Weller v. Railroad, 120 Mo. 636; Baker v. Railroad, 122 Mo. 572; Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Lane v. Railroad, 132 Mo. 4; Huggart v. Railroad, 134 Mo. 497; Payne v. Railroad, 136 Mo. 562; Culbertson v. Railroad, 140 Mo. 35; Schmitt v. Railroad, 160 Mo. 43; Tanner v. Railroad, 161 Mo. 497; Kelly v. Railroad, 18 Mo.App. 151; Hickman v. Railroad, 47 Mo.App. 74; Drake v. Railroad, 51 Mo.App. 466; Masterson v. Railroad, 58 Mo.App. 572; Caldwell v. Railroad, 58 Mo.App. 453; McCall v. Railroad, 54 N.Y. 642; Rodrian v. Railroad, 125 N.Y. 526; Chase v. Railroad, 78 Maine 346; Allen v. Railroad, 19 A. 105; Hayes v. Railroad, 47 Mich. 401; Mahlen v. Railroad, 49 Mich. 585; Mynning v. Railroad, 64 Mich. 93; Gardner v. Railroad, 56 N.W. 603; Kwiotlkowski v. Railroad, 70 Mich. 551; Ferguson v. Railroad, 63 Wis. 145; Seefeld v. Railroad, 70 Wis. 216; Mantel v. Railroad, 33 Minn. 62; Clark v. Railroad, 50 N.W. 365; Schmolze v. Railroad, 53 N.W. 743; Railroad v. Stommel, 25 N.E. 863; McCrary v. Railroad, 31 F. 531; Tucker v. Duncan, 9 F. 867; Myers v. Railroad, 24 A. 747; Smedis v. Railroad, 88 N.Y. 13; Harris v. Railroad, 41 Iowa 227; Benton v. Railroad, 42 Iowa 192; Schaefert v. Railroad, 62 Iowa 624; Railroad v. Holmes, 3 Wash. 202; Fleming v. Railroad, 49 Cal. 253; Merkle v. Railroad, 49 N. J. L. 473.
Alden & McFadden and Fyke Bros., Snider & Richardson for respondent.
The negligence of defendant is not denied. The only question is whether or not the deceased was guilty of negligence which directly contributed to his death. Whether he was so guilty was a question for the jury. Weller v. Railroad, 164 Mo. 180. Even if deceased was guilty of contributory negligence, the defendant is liable if it failed to use the means at its hand to save him, when, by the exercise of ordinary care, it would have discovered his peril in time to have done so. Morgan v. Railroad, 159 Mo. 263; Mapes v. Railroad, 67 N.Y.S. 358, 56 A.D. 508; Matthews v. Toledo, 21 Ohio Cir. Ct. Rep. 69. It was clearly the duty of defendant, in making flying switches across a highway, where so many people were crossing, to have had some one on top of the car to see that the way was clear before the kick was made, and to keep the car under control. And it was the duty of its flagmen to see that no signal was given whilst persons were crossing. The evidence fairly shows that the deceased saw the train going east, and that he naturally supposed it would continue in that direction; and the evidence also fairly shows that the flagmen negligently failed to see deceased until he had crossed the Wabash tracks, and that they gave the signal to the foreman to have the car kicked while deceased was attempting to make the crossing; and that while deceased was in that perilous position the car was suddenly kicked with great force, and hurled upon him. O'Connor v. Railroad, 94 Mo. 150.
Plaintiff's husband was killed at a railroad crossing in a public street in Kansas City, through the negligence, as plaintiff alleges, of the servants of defendant in handling a freight train.
Plaintiff's evidence tended to show the following facts: Hickory street runs north and south, Union avenue crosses it at right angles. Defendant owns two railway tracks crossing Hickory street diagonally from southwest to northeast, near the intersection of Union avenue. The space between these two tracks is eight feet. South of and parallel to defendant's tracks are two other railway tracks, between which is a like space of eight feet, belonging to the Wabash Railroad Company. The space between the tracks of the defendant and those of the Wabash is twelve and a half feet. The following diagram represents the location of the tracks and the scene of the accident:
[SEE ILLUSTRATION IN ORIGINAL]
Plaintiff's husband driving alone in a one-horse buggy approached Hickory street from the east on Union avenue. He was aiming to go north on Hickory street, and the inference may be drawn from plaintiff's testimony that when he reached Hickory street he turned north, and drove on in that direction until he reached the north track of defendant, when he was struck by a freight car, which had been detached from the train and kicked to make a flying switch across Hickory street to defendant's yards. He was driving about the middle of Hickory street at a speed which the witness called a jog trot. The horse cleared the crossing, but the car struck the buggy, broke it away from the horse and carried it beyond the west line of Hickory street. The deceased was thrown out and so mangled that he died within a few minutes.
There were some buildings along the north line of Union avenue nearly up to the point where the south Wabash track crosses that line, which is about 150 feet east of the east line of Hickory street. After passing those buildings there was nothing to prevent one going as deceased was, from seeing the defendant's tracks as far east as the train in question was, and, after he reached Hickory street, he had a clear view of defendant's tracks as far east as the next street, Mulberry. This train, just before the accident, had crossed Hickory street going east, the last car in the train clearing the east line of Hickory street about 120 feet, then the work of kicking the cars back into the switch began. This was done by backing the train, during which the coupling pin was drawn to detach the car to be kicked, a shove by the engine was given, and the detached car was let to go into the switch by the force thus imparted and the rest of the train was pulled forward again for another such flying switch. One car of this train had thus been switched across the street and the crew were in the act of switching the next car when the accident occurred. There was no brakeman on the detached car.
There were two witnesses for the plaintiff, who saw the accident; one of them viewed from a point north of the tracks in the angle near where the north track crosses the east line of Hickory street. He was facing north talking to a man who was facing south, and observing in this man's countenance a sudden expression of alarm turned around and then saw the plaintiff's husband in his buggy approaching the crossing and saw the detached car coming to the same point. At that instant the horse was near the defendant's south track, the buggy just north of the Wabash track, and the car about thirty feet from the point of collision. The witness said the car was going about eight miles an hour, but he said he had no means of fixing the speed and it was only a guess. When the witnesses turned and saw the situation the man in the buggy had his face towards the west; he turned towards the car just as the accident occurred. If he had looked when the witness first turned and saw him he would have seen the car in time to have stopped. The accident occurred about four o'clock in the afternoon, October 3, 1899.
The plaintiff's other witness to the scene viewed it from a point in the space between the tracks of the defendant and those of the Wabash near the west side of Hickory street in its intersection with Union avenue. This witness was walking north aiming to reach a place two squares north of the railroads. He saw the train pull east, it was a freight train of ten or twelve cars, then he saw it shoved back and this car cut loose, kicked back and let to run down by itself; it was cut loose from the train about two car-lengths, or seventy-two feet, east of Hickory street. The witness seeing that the crew were thus engaged in switching cars across the street, when he reached the point above designated (between the tracks of defendant and those of the Wabash), perceiving that he could not get across the tracks before the car would be upon him, stopped to let it pass. While he stopped the plaintiff's husband drove by him going in a jog trot about four miles an hour looking straight ahead, but just as he passed witness he turned and glanced to the west, and drove on until the car struck him. There was nothing to prevent his seeing the car coming, as the witness did, and if he had seen it he could have stopped in time to have avoided the accident. The deceased was from fifty to seventy feet south of the crossing when this witness first saw him.
The testimony on the part of the defendant tended to show as follows: When the deceased, coming west on Union avenue reached Hickory street, he turned south and drove about two squares to the place...
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