Wheeler v. Wabash Railroad Company

• Decision Date: 06 November 1911
• Citation: 141 S.W. 472,159 Mo.App. 579
• Parties: ELLA H. WHEELER, Appellant, v. WABASH RAILROAD COMPANY, Respondent
• Court: Kansas Court of Appeals

141 S.W. 472

159 Mo.App. 579

ELLA H. WHEELER, Appellant, v. WABASH RAILROAD COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

November 6, 1911

Appeal from Boone Circuit Court.--Hon. N. D. Thurmond, Judge.

AFFIRMED.

Judgment affirmed.

Charles J. Walker and A. B. Wheeler for appellant.

(1) Defendant's engineer saw plaintiff and discovered her perilous position; he should have discontinued the whistling or stopped his train. Smith v. Railroad, 53 S.W 269, and cases cited; Stanger v. Railroad, 32 N.E 209; Phelan v. Paving Co., 207 Mo. 666, 710. (2) Under the evidence in this case the plaintiff was entitled to the verdict of the jury on the question of negligence. It is only when the facts are of such a character that all reasonable men must draw the same inference that it becomes the duty of the court to decide the question of negligence as one of law. Ward v. Maine Central Co., 96 Me. 136; Hanlon v. Turnpike Co., 182 Pa. St. 115; Railroad v. Box, 17 S.W. 375; Railroad v Syfan, 43 S.W. 551. (3) It was negligence in the engineer to sound the whistle in such close proximity to plaintiff's team. Brown v. Railroad, 89 Mo.App. 192; Feeny v. Railroad, 123 Mo.App. 420, 428; Fulton v. Railroad, 39 So. 282; 23 Am. and Eng. Ency. Law, p. 744. (4) Under the circumstances of this case defendant's failure to suspend the whistle of the engine was an act of wantonness and negligence. Cole v. Railroad, 121 Mo.App. 605; Beckenwald v. Railroad, 121 Mo.App. 595; Phelan v. Paving Co., 115 Mo.App. 423. The dictates of humanity should have prompted the engineer to suspend the whistle when he discovered its effect upon plaintiff's team. Morgan v. Railroad, 159 Mo. 262, and cases cited; Oates v. Railroad, 168 Mo. 535; O'Donnell v. O'Neill, 130 Mo.App. 360.

J. L. Minnis and E. W. Hinton for respondent.

(1) Since the plaintiff relied on negligence in sounding unusual or unnecessary whistle signals, or in continuing them after the team became frightened, the burden was necessarily upon her to affirmatively prove that the accident was caused by negligence in some one or more of these particulars. Webb v. Railroad, 52 A. 5; O'Brien v. Railroad, 118 N.Y.S. 1025; Feeney v. Railroad, 123 Mo. App 420. (2) There was a total failure to prove that the sounding of the whistle in the first instance was either unusual, unnecessary or improper under the circumstances. Berry v. Railroad, 66 A. 386; McCandless v. Railroad, 93 S.W. 1040. The operators of the train were under no legal duty to look out for travelers on adjoining highways, or refrain from the ordinary and necessary signals and noises of operation merely because horses in that vicinity might become frightened thereby. Lamb v. Railroad, 140 Mass. 79; Railroad v. Walkenshaw, 81 P. 463; Whistenaut v. Railroad, 59 S.E. 920; Railroad v. Smith, 53 S.W. 269; McCandless v. Railroad, 93 S.W. 1040; Faires v. Railroad, 77 P. 230; Rowe v. Railroad, 137 S.W. 511; Feeney v. Railroad, 123 Mo.App. 420. There is no proof whatever that the engineer actually saw the plaintiff or her team at all, or was in the least aware of any peril, because the bare fact that the engineer could have seen the buggy, etc., furnishes no evidence that he did in fact see or became aware of the situation. Hall v. Railroad, 219 Mo. 588; Day v. Railroad, 52 A. 771; McGhee v. Railroad, 214 Mo. 522. (3) The plaintiff failed to make a case of negligence for continuing the whistle signals, because there was no evidence that the engineer was aware of the danger, or that he could have prevented the accident after the first whistle blast was sounded. Day v. Railroad, 52 A. 771; Hall v. Railroad, 219 Mo. 588, and discussion under preceding point.

OPINION

JOHNSON, J.

Action to recover damages for personal injuries alleged to have been caused by negligence of defendant. At the close of the evidence the court instructed the jury to return a verdict for defendant and plaintiff appealed from a judgment rendered on such verdict.

The injury occurred at midday October 24, 1909, on a public highway about one mile northeast of Columbia. Plaintiff and her niece, Miss Nellie Gray, were driving towards the northeast in a two-horse buggy and were on a part of the highway that adjoins and runs parallel to the right of way of defendant's branch line to Columbia, when the team took fright at a passing freight train coming from the northeast, ran away and upset the buggy, injuring plaintiff.

The highway was east of the railroad and the west half was macadamized or graveled, while the other half was an ordinary dirt road two or three feet lower than the graveled part. The team and buggy were using the graveled roadway and were about sixty feet from the railroad track at the time the team became unmanageable and, bolting away from the train, whirled the buggy on to the dirt road and upset it. The place of the accident was about opposite a whistling post for a road crossing known as the Keene crossing, approximately a quarter of a mile southwest. There was another road crossing called the Kurtz's crossing, about the same distance northeast and the whistling post for that crossing for northbound trains was about one hundred feet south of the whistling post for the Keene crossing, which was for southbound trains. Northeast of the post for the Keene crossing the railroad ran through a cut and plaintiff was unable to see the approaching train until the engine emerged from the cut at a point six hundred feet or more in front of the team. The track was curved slightly in a way to give the train the appearance of coming head on and to cause the engineer to pay close attention to the crossing ahead which was regarded as a dangerous crossing. The engine was in front of the train, but was running backward at the rate of twenty-five or thirty miles per hour. Consequently the engineer was in the east side of the cab and was leaning far out of the window watching the track ahead of the tender. The team noticed the train when the engine was about one hundred and fifty feet from the Keene post, stopped and pricked up their ears, but did not become unmanageable until the engineer blew the whistle for the Keene crossing. On this point Miss Gray testified:

"When they first saw the engine they stopped and pricked up their ears and then when the whistle blew they began backing. Q. At what point did they begin to run? A. When the whistle began. Q. Had they moved until after the whistle began? A. They had shown fright and were backing. Q. Had they started to run? A. No, I don't think so. Q. How near was the engine to you when the whistling began? A. Almost opposite, just slightly opposite."

Plaintiff testified: "Q. When did your horses show signs of fright? A. When they saw the train approaching they stopped and began to swerve back and then I saw I had no time to do anything and planted my feet against the dashboard and thought I could hold them in the road until they passed me and then I would be all right. But they began whistling when they passed me and kept it up repeatedly. Q. The train was very close to them when the team began to back? A. Not so close as when they began to whistle. Q. Can you tell me how far they were when the horses began to back? A. That would be a matter of speculation. Q. Simply your best recollection of it. Was the train a hundred feet from them when they began to stop and back? A. A little farther, perhaps. Q. As much as two hundred feet from them? A. How wide is it across this room? Q. About forty or fifty feet, I suppose. I would say three times across this room--about one hundred and fifty feet, I would say. Q. When the horses began to show fright? A. When they first saw the train."

These witnesses say that the whistle sounded six shrill blasts and that the team bolted at the first or second blast. Further Miss Gray testified that when the whistling began she motioned to the engineer who was looking towards them to stop the whistling but no attention was given the signal.

The evidence shows beyond dispute that the engineer was whistling for the Keene crossing at the lawful place for giving such signal and we think the weight of the evidence shows that he gave the usual signal--two long and two short blasts of the whistle. But the evidence of plaintiff that six blasts were given is substantial and we shall consider it in passing on the questions raised by the demurrer to the evidence.

For present purposes we shall regard as proved the following facts: First, that the engine was one hundred and fifty feet from the horses when they stopped and began to exhibit signs of becoming unmanageable. Second, that the engineer began whistling for the crossing at the place for that signal, that when the whistling began, the engine was opposite the team and that the whistle was sounded six times; third, that the team became unmanageable at the first or second blast; fourth, that one of the occupants signaled the engineer to stop at the first blast at a time when the engineer was looking in the direction of the team and, fifth, that the team became unmanageable on account of the blowing of the whistle.

The petition alleges "that the agents, servants and...