Weller v. Chicago, M. & St. P. Ry. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Burgess
• Citation: Weller v. Chicago, M. & St. P. Ry. Co., 64 S.W. 141, 164 Mo. 180, 86 Am. St. Rep. 592 (Mo. 1901)
• Decision Date: 21 May 1901
• Parties: WELLER v. CHICAGO, M. & ST. P. RY. CO.

64 S.W. 141

164 Mo. 180

WELLER v. CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Missouri.

May 21, 1901.

RAILROADS — NEGLIGENCE — CROSSING — ACCIDENT — EVIDENCE — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS — VERDICT.

1. Plaintiff's intestate, after dark, approached the crossing of defendant's tracks, and when near the tracks the motorman of a street car, standing near, warned him of an approaching train. Deceased turned his head as he was

called, then looked ahead, and a moment later was struck by a train. A city ordinance required the ringing of a bell near a crossing, and the presence of a headlight. The motorman testified he heard a bell ring very low, and that not until just before deceased was struck did he see any light, and then only a feeble one. The engineer and fireman testified there was a light, that a bell was rung and a whistle sounded, and two other witnesses corroborated them. Held, that the question of deceased's contributory negligence was properly submitted to the jury.

2. It would be presumed deceased looked and listened before going on the tracks.

3. Deceased had a right to presume that the defendant had complied with the ordinance.

4. The question as to whether the ordinance had been complied with was for the jury.

5. While an instruction of about 400 words, as to what would constitute negligence on the part of defendant, was open to criticism as to its length, a reversal would not be granted on such ground.

6. There was sufficient evidence on which to base an instruction as to the adequacy of the bell when ringing to give notice of the approach of the train.

7. It was not error to allow a witness of the accident to testify as to the dazzling effect of a headlight on a street car facing deceased as he approached the track.

8. A reversal will not be granted for the admission on rebuttal of evidence not strictly rebutting in character.

9. A verdict for $5,000 for death, the same amount having been awarded on a former trial, cannot be held the result of passion and prejudice.

Sherwood, Robinson, and Marshall, JJ., dissenting.

In banc. Appeal from circuit court, Jackson county; E. P. Gates, Judge.

Action by Arbelle Weller against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Frank Hagerman, for appellant. Gage, Ladd & Small, for respondent.

BURGESS, C. J.

This is an action by plaintiff, who is the widow of William P. Weller, deceased, to recover damages on account of the death of her said husband, caused, as is alleged, by the negligence of defendant. The accident occurred after sunset, on the evening of the 12th of December, 1887, at a point in Kansas City, Mo., where the Kansas City Belt Railroad (over which defendant's road is operated) crosses Fifteenth street, in that city. There have been two trials in this case, each resulting in a verdict for plaintiff for $5,000. An appeal from the first judgment to this court was prosecuted by the defendant. The judgment was reversed, and the cause remanded for another trial, the case being reported in 120 Mo. 635, 23 S. W. 1061, 25 S. W. 532. The case was again tried at the April term, 1897, of the circuit court of Jackson county, resulting in a judgment for plaintiff for $5,000, from which defendant appeals. The negligent acts upon which the case is grounded are the violation of section 5 of chapter 37 of the revised ordinances of the city, limiting the rate of speed of railroad trains to six miles per hour; the violation of section 2 of the same chapter, requiring to be placed upon every moving train, after sunset, "one large lamp, headlight, or lantern conspicuously placed in front of the train, facing the direction in which the same may be moving"; and in failing to ring the bell 80 rods from the crossing, or keep it ringing until the train passed the crossing. The defenses were a general denial, and a plea of contributory negligence on the part of deceased.

Fifteenth street was one of the principal thoroughfares of Kansas City, and runs east and west. At the point where the accident occurred it is crossed by the line of defendant's railroad which runs from northeast to southwest, and crosses the highway at an angle of about 33 degrees. It was 612½ feet from this intersection northeast along the line of the railroad to the limits of Kansas City. Fifteenth street was 100 feet in width. A double-track cable railroad occupied about 15 feet in width in the center of the street. The street was not at the time graded to its full width, but had been surfaced for a distance of 18 or 19 feet on the north and south sides of the cable roadway. This space on either side of the cable railroad was used for vehicles. From the intersection of the railroad and the highway to the eastern city limits, along the line of Fifteenth street, was 516 feet. Askew avenue, the first north and south street west (towards the city), is 107 feet from the intersection of the highway and the west rail of the railroad track. On the northeast corner of Askew avenue and Fifteenth street there were two small frame houses, facing on Fifteenth street, with a frontage of about 40 or 50 feet. From the point of intersection the railroad ran in a northeasterly direction in a straight line for a distance of about 1,800 feet, at which point it curved towards the east. A person standing in Fifteenth street 60 to 80 yards west of the intersection of the west rail of the railway and the highway could see the entire track for a distance of 1,000 feet or more from the point of intersection northeast. Standing at a point in Fifteenth street 25 feet east of the east line of the small houses mentioned, one could see the track for a distance of 800 or 900 feet from the point of intersection; standing in Fifteenth street on the east line of Askew avenue, he would have an unobstructed view of the track for a distance of 600 feet northeast from the point of intersection. A railroad from Kansas City to Independence, called the "Dummy Line," had its western terminus at a small station on Askew avenue, 200 or 300 feet north of Fifteenth street. From this station this line of railroad ran north to Fourteenth street, thence east on Fourteenth street to the city limits, and then bore off in a northeasterly direction. The railroad and tracks at the location in question, which were used by the defendant, were owned by the Belt Line Railroad Company.

The deceased lived on Fifteenth street, three or four miles east of the crossing. He had been to the city, and was on his way home, driving a single horse or pony and light wagon along Fifteenth street, on the north side of the cable track. It was dark, and shortly after 6 o'clock. As he approached the crossing, a cable train bound east stood on the south track of the cable road, about 50 feet west of the west rail of the defendant's railroad. Another cable train, bound west, stood on the north track of the cable railroad, about the same distance east of the intersecting point. It was a standing rule of the cable company that all its trains approaching this crossing should stop, and the conductor go ahead and see if the crossing was clear, and, if so, then signal them to come on; this, whether a train was or was not within sight or hearing or expected on the Belt Line track. But on this occasion it happened that the conductor of the eastbound cable train had rung his bell as a signal to the gripman to stop, as the gripman supposed, to allow some passengers to alight. A cable train passes over this crossing every two and a half minutes. Both these cable trains at the time had bright headlights in front, whose natural effect was to dazzle one's eyes in front of them, and intensify the darkness at a distance from them, so that opaque objects were not easily distinguished until they came within their radius. Collins, the gripman on the east-bound cable train, was a witness for the plaintiff. He was a gripman for several months, had been superintendent of the Eighteenth street cable line, and familiar with the operation of switch engines and their lights in Chicago. The defendant's railroad was not completed, and one of its construction trains, whose crew had been at work five or six miles east of the city, was approaching from the northeast, bringing the men from their work. The train was composed of three or four cars and an engine hauling them, the engine backing at the time, so that the tender was at the front of the train. The defendant's witnesses testified that there were two box cars and a passenger coach. Stone and Anderson, who were mechanics employed in the construction of defendant's roundhouse, and who were in the rear car coming home from their work, testified that there was no coach upon the train, but that they were all box cars, and unlighted.

Collins testified that when he first saw Weller the latter was abreast of the cable car, driving east on the wagon road north of the cable track. The cable cars were standing there, — how long is left uncertain. Collins also testified "it might be probably a minute, more or less; that I could not be exact upon." Collins then knew that a train was coming, because about that time he first heard its rumble. Collins heard a bell twice very low. It did not ring continuously, He heard it once before and once after he saw Weller. It did not sound like a locomotive bell, — more like a cow bell; so that he was not certain from its sound whether the train which he heard was upon the Dummy Line or the Belt Line. Before Weller passed Collins, the latter had heard the noise of his horse's hoofs or his wagon, perhaps 100 feet back. The ground was hard. As Weller passed, Collins halloed to him, but Weller paid no attention. Collins shouted to him again, and Weller then looked back over his right shoulder towards the southwest, then turned back his face to the east, and almost immediately was under the train. When Collins first...