Weigman v. St. Louis, I.M. & S. Ry.

• Decision Date: 29 November 1909
• Citation: 123 S.W. 38
• Court: Missouri Supreme Court
• Parties: WEIGMAN v. ST. LOUIS, I. M. & S. RY.

123 S.W. 38

WEIGMAN v. ST. LOUIS, I. M. & S. RY.

Supreme Court of Missouri.

November 29, 1909.

RAILROADS (§ 348) — CROSSING ACCIDENT — CONTRIBUTORY NEGLIGENCE — EVIDENCE.

There being evidence that one, whose horses were struck at a crossing by a fast moving train just as they stepped on the track, could not have seen the train had he looked, because of the obstruction of the view by buildings and a train standing on the track only eight feet nearer to him than the one on which was the moving train, and that he could not have heard it had he listened, because of the escaping steam

from the standing engine and the absence of signal by bell or whistle on the moving train, and the presumption being that he did look and listen, it was error to hold him guilty of contributory negligence, on the ground of absence of evidence that he stopped, looked, and listened.

Graves, J., dissenting.

In Banc. Appeal from Circuit Court, Jefferson County; Jos. J. Williams, Judge.

Action by Marie Weigman against the St. Louis, Iron Mountain & Southern Railway. Judgment for defendant. Plaintiff appeals. Reversed and remanded.

The plaintiff is the widow of William C. Weigman, deceased, who was killed by one of defendant's passenger trains, through the alleged negligence of its employés, while he was crossing the track upon a public crossing in the city of De Soto, Mo. She brought this suit against defendant to recover the sum of $5,000 for his said negligent killing. A trial was had, and after the introduction of all the testimony offered by both parties, at request of the defendant, the court gave a peremptory instruction, telling the jury to find for it. In obedience to that instruction, the jury returned a verdict for defendant, judgment accordingly, and plaintiff appealed the cause to this court. The petition charged, in substance, that plaintiff was the wife of William C. Weigman; that said Weigman was struck by one of defendant's trains and killed on June 2, 1905, shortly after 6 o'clock a. m. of that day, while he was lawfully traveling on a public traveled street in the city of De Soto, Mo. (a city of the third class), leading from West Main street to East Main street at a point in defendant's yards where defendant maintained nine parallel tracks which crossed said tracks at grade.

The negligent acts of defendant complained of as having caused the death of William C. Weigman are: First, that the agents and servants of defendant in charge of its engine and train wholly failed to ring the bell thereon at a distance of 80 rods from the crossing and to keep the same ringing until said locomotive had crossed said traveled public street. Second, wholly failed to sound a steam whistle at a distance of 80 rods from said crossing and to sound said whistle at intervals until said locomotive crossed said street. Third, failure of defendant to comply with ordinance No. 514, §§ 1 and 2, requiring defendant to place and keep a watchman on said crossing between the hours of half past 5 o'clock a. m. and 10 o'clock p. m. each day — said watchman to give notice to travelers of approaching trains. Fourth, running its train at a high rate of speed, viz., 25 miles per hour in violation of section 350 of the ordinances of the city of De Soto, which ordinance is as follows: "No locomotive engineer, railway employé, or other person shall cause any locomotive engine, railroad passenger car, or freight car, to be driven, propelled or run upon or along any track within the city of De Soto at a greater speed than five miles per hour." Fifth, running its said train in violation of section 356 of the ordinances of the city of De Soto, which requires the bell to be rung 20 rods from the crossing of a public street and kept ringing while the train is running through said city and which ordinance is as follows: "Section 356. Bell to be Rung. The bell of each locomotive engine shall be rung at a distance of at least twenty rods from the place where the railroad shall cross any street or thoroughfare of this city, and shall be rung continuously while said engine is passing through said city, or if running in the yard in this city, the bell shall be rung continuously while said engine is running." Sixth, that defendant negligently placed a locomotive engine, attached to a train of passenger cars, on its west side track immediately south of and extending up to said crossing, thereby obstructing the view of the said William C. Weigman from said crossing of all trains coming on the main track from the south, and the escaping steam from said engine, so negligently placed and maintained on the side track, rendered it difficult for plaintiff's husband to see or hear trains approaching said crossing from the south.

The facts of the case are substantially as follows: Plaintiff was the wife of William C. Weigman on June 2, 1905, the date when he was struck and killed. He was killed while attempting to cross defendant's tracks, on a public crossing, in the city of De Soto, Mo. Main street runs north and south, practically through the center of the city. In the center of that street there are located nine parallel railroad tracks, and on each side of the tracks there is a space of ____ feet left; that on the west side is called "West Main Street," and that on the east side is called "East Main Street." There are but two streets crossing Main; one of these crossed in front of the Commercial Hotel, and is known as the "Commercial Crossing." This was the principal crossing within the city limits. This crossing, leading from West Main street to East Main, was about 25 to 30 feet in width, and crossed all 9 of those tracks at grade. The most westerly track was a switch track, and the next immediately east thereof was the main track, on which the train was running which struck plaintiff's husband. The distance between those two tracks was 8 feet. On this switch track there was standing a passenger train with the pilot of the engine thereof extending several feet beyond the south line of the crossing and over into the crossing the same number of feet. The engine was fired up with a full head of steam on, ready to pull out for the north, and was blowing off and emitting large volumes of smoke and steam and making loud noises. The train attached to this engine was known as the "De Soto accommodation," which consisted of an engine, tender, and several passenger coaches; and immediately behind or south of this accommodation, and on the same track, were standing a number of other passenger coaches, and also a number of freight box cars, none of which were in use at the time. This train and these idle coaches and cars were about 14 feet in height, and extended back south from said crossing for a distance of 750 to 1,000 feet to the "old freight depot." Plaintiff's evidence tended to show that, when a train from the south on the main line reached the south end of the "old freight depot," it would be hidden from the view of a person by the "De Soto accommodation," and by the coaches and cars standing south thereof, until it reached the "Commercial crossing," occupying the position Weigman was occupying during all the time he was on West Main street, which will be described presently. Weigman was 60 years of age, and possessed all of his faculties — could see and hear well.

The evidence also tended to show that all of the ordinances pleaded were duly enacted by the city of De Soto, and were in force and operation at the time of the injury complained of; that there was no watchman stationed at the crossing to warn people of approaching trains, at the time of the injury, as required by said ordinance, nor had there been for months prior thereto, all of which was well known to Weigman; and that the whistle was not sounded nor was the bell rung for 80 rods, or for any other distance, before reaching said crossing, as required by ordinance of the city and the statute of the state. Just immediately before Weigman was killed, he was at the store of Mr. Welch, on the west side of West Main street, and about 75 feet south of the south line of the Commercial crossing, where he had been delivering some vegetables. He was driving a team of two horses hitched to an ordinary spring wagon. The team was headed south, and were standing in front of Welch's store. After transacting his business with Welch, he got into his wagon, facing south, and sat down on the seat thereof, and started to the east side of East Main street, for the purpose of delivering other vegetables. He drove off in a walk or slow trot, turning his team to the east and north, forming something of a semicircle, until he reached the north half of the crossing, not far from the west rail of the west switch track, upon which the "De Soto accommodation" was standing, his horses shying during the meantime from the seething, hissing noise emanating from the engine attached to that train. The plaintiff's evidence also shows that just before or about the time Weigman got in his wagon and turned to the east and north the regular passenger train of defendant, due to arrive at that time, came in sight, at the south end of the "old freight depot," going north at a rate of speed variously estimated by the witnesses of both parties from 12 to 30 miles an hour, and that the bell was not rung or the whistle sounded; but there was no evidence the deceased saw this train at that time, nor is it clear that he could have seen it from the place where he was standing. When Weigman reached the north side of the crossing he drove east along the north side thereof until the heads and fore feet of his horses reached the west rail of the main line, when he was seen to jerk or pull back upon his lines, thereby attempting to pull his horses back from the track, but he was too late, for at that very instant the regular passenger train from the south struck his horses and threw him into the air, and, in falling to the ground, he received injuries...