Weigman v. St. Louis, Iron Mountain & Southern Railway

• Decision Date: 29 November 1909
• Citation: 123 S.W. 38,223 Mo. 699
• Parties: MARIE WEIGMAN, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY
• Court: Missouri Supreme Court

123 S.W. 38

223 Mo. 699

MARIE WEIGMAN, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY

Supreme Court of Missouri, First Division

November 29, 1909

Appeal from Jefferson Circuit Court. -- Hon. Jos. J. Williams Judge.

Reversed and remanded.

H. B Irwin and Byrns & Bean for appellant.

(1) The burden of proving contributory negligence on the part of plaintiff's husband rested on defendant. Plaintiff's husband, in the absence of evidence on her behalf to the contrary, was presumed to have been in the exercise of ordinary care. The instruction given by the court erroneously required plaintiff to prove affirmatively that her husband was in the exercise of ordinary care. Stotler v Railroad, 200 Mo. 146; Hucksold v. Railroad, 90 Mo. 548; Green v. Railroad, 192 Mo. 143; Weller v. Railroad, 164 Mo. 198. Plaintiff's husband had the right to presume that defendant would obey the ordinances of the city and to govern his actions accordingly. Failure to obey the ordinances was negligence per se. Mockowik v. Railroad, 180 Mo. 168; Hutchinson v. Railroad, 161 Mo. 254. Plaintiff's case should have been submitted to the jury. Cook v. Railroad, 19 Mo.App. 332; Johnson v. Railroad, 77 Mo. 546; Moberly v. Railroad, 17 Mo.App. 518; Donahue v. Railroad, 91 Mo. 363; Petty v. Railroad, 88 Mo. 306; Kennayde v. Railroad, 45 Mo. 255; Russell v. Railroad, 70 Mo.App. 88; Baker v. Railroad, 147 Mo. 140; 2 Thompson's Commentaries on the Law of Negligence (2 Ed.), secs. 1645, 1654, 1656.

Martin L. Clardy and James F. Green for respondent.

(1) A clear case of contributory negligence on part of Weigman was disclosed by the testimony, and plaintiff is therefore precluded from any recovery. Laun v. Railroad, 216 Mo. 563; Sanguinette v. Railroad, 196 Mo. 466; Green v. Railroad, 192 Mo. 131; Sims v. Railroad, 116 Mo.App. 572; Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 374; Hook v. Railroad, 162 Mo. 569; Turner v. Railroad, 74 Mo. 607; Hickman v. Railroad, 47 Mo.App. 74; Lane v. Railroad, 132 Mo. 16; Payne v. Railroad, 136 Mo. 581; Geyer v. Railroad, 174 Mo. 344; Butts v. Railroad, 98 Mo. 272; Schmidt v. Railroad, 191 Mo. 228. (2) There being no evidence that deceased looked or listened for approaching trains, no presumption can be indulged that he did. Jones v. Railroad, 63 Mo.App. 509; Hook v. Railroad, 162 Mo. 569; Beach on Contributory Negligence (2 Ed.), sec. 182; Huggart v. Railroad, 134 Mo. 679; Lynn v. Railroad, 79 Mo.App. 478; Kries v. Railroad, 148 Mo. 330. (3) Where the evidence is such that it is the duty of the trial judge to set a verdict aside as not supported by sufficient evidence, it is his duty and prerogative to direct a verdict. Hite v. Railroad, 130 Mo. 132; Asphalt Co. v. Transit Co., 102 Mo.App. 476; Reichenbach v. Ellerbee, 115 Mo. 588; Jackson v. Hardin, 83 Mo. 175; Fuchs v. St. Louis, 167 Mo. 631; Warner v. Modern Woodmen, 119 Mo.App. 230.

WOODSON J. Graves, J., dissents in a separate opinion.

OPINION

In Banc

WOODSON, J.

The plaintiff is the widow of William C. Weigman, who was killed by one of defendant's passenger trains, through the alleged negligence of its employees, while he was crossing the track upon a public crossing in the city of DeSoto, Missouri. 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 six o'clock a. m. of that day, while he was lawfully traveling on a public traveled street in the city of DeSoto (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 street 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 eighty 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 eighty 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, sections 1 and 2, requiring defendant to place and keep a watchman on said crossing between the hours of half past five o'clock a. m., and ten 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., twenty-five miles per hour, in violation of section 350 of the ordinances of the city of DeSoto, which ordinance is as follows: "No locomotive engineer, railway employee, 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 DeSoto 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 DeSoto, 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: "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 DeSoto, Missouri. 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 twenty-five or thirty feet in width, and crossed all nine 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 eight 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 "DeSoto 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 fourteen 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 "DeSoto Accommodation," and by the coaches and cars standing south thereof, until it reached the "Commercial Crossing," -- that is, hidden from a person occupying the position Weigman was occupying during all the time he was on West Main street, which will be described presently.

Weigman was sixty 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 DeSoto, 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 eighty rods, or for any other distance, before reaching...