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

• Decision Date: 05 March 1894
• Citation: 120 Mo. 635,25 S.W. 532
• Court: Missouri Supreme Court
• Parties: WELLER v. CHICAGO, M. & ST. P. RY. CO.

25 S.W. 532

120 Mo. 635

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

Supreme Court of Missouri, Division No. 1.

March 5, 1894.

ACCIDENT AT RAILROAD CROSSING — CONTRIBUTORY NEGLIGENCE — DAMAGES — DEATH BY WRONGFUL ACT.

1. In an action against a railroad company for killing a traveler at a highway crossing, where negligence by the railroad company is clearly established, the defense of contributory negligence must be clearly made out to warrant the court in taking the case from the jury; and, if inferences other than that of contributory negligence may be fairly drawn from the evidence, the question is for the jury. 23 S. W. 1061, affirmed.

2. Evidence by the only eyewitness to an accident at a railroad crossing that deceased, driving a wagon in the nighttime, did not use any precaution to ascertain the approach of a train after he got within 50 feet of the track, does not show him guilty of contributory negligence, as matter of law, when it appears that he had an unobstructed view of the track for 600 feet before reaching the crossing. 23 S. W. 1061, affirmed.

3. In an action against a railroad company for killing a traveler at a highway crossing, where the defense is contributory negligence, and the evidence is almost conclusive that he drove recklessly onto the track, it is error to instruct that he had a right to presume that the employes of the company would use ordinary care in moving trains, and that he was not bound to anticipate the company's failure to ring the bell, carry a light, and run its train within a limited rate of speed, since the jury may well have inferred that the traveler's failure to exercise care did not exist if the company omitted the acts enumerated. Brace, J., dissenting. 23 S. W. 1061, affirmed.

4. For killing a traveler at a railroad crossing the amount of damages is fixed by statute at $5,000, and evidence as to the social or business standing or relationship of the widow is not admissible. 23 S. W. 1061. affirmed.

5. The driving of a horse at a rate of speed forbidden by a city ordinance at the time of a collision between the wagon and a railroad train on a highway crossing is such negligence on the part of the driver as will prevent recovery against the railroad company if it contributed directly to the accident. 23 S. W. 1061, affirmed.

On rehearing. For decision on appeal, see 23 S. W. 1061.

On Rehearing.

PER CURIAM.

After again hearing and considering able arguments made by counsel on each side of this case, we...