Yonkers v. St. Louis, Iron Mountain & Southern Railway Co.
| Decision Date | 07 April 1914 |
| Citation | 168 S.W. 307,182 Mo.App. 558 |
| Parties | MAGGIE YONKERS, Respondent, v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Original Opinion of April 7, 1914, Reported at: 182 Mo.App. 558. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Motion overruled and cause certified to Supreme Court.
ALLEN
ON MOTION FOR REHEARING.
ALLEN, J.--It is earnestly insisted by learned and diligent counsel for the appellant that the foregoing opinion herein is in conflict with the rulings of our Supreme Court in Kelsay v. Railroad, 129 Mo. 362, 30 S.W. 339; Stotler v. Railroad, 204 Mo. 619, 103 S.W. 1; Laun v. Railroad, 216 Mo. 563, 116 S.W. 553, and other cases of like tenor. It is said that plaintiff had no right to rely altogether upon the defendant to observe the provisions of the ordinance in question, and fail to exercise reasonable care for her own safety; and that, since railway tracks are an ever present signal of danger, she was required to exercise her faculties to discover an approaching train, regardless of the invitation implied by reason of the gates being open.
As to this we may say that we have not held that one is wholly relieved from the duty to use his own sense of sight and hearing, under such circumstances; nor that one under circumstances as here appear may recover if he drives upon a railway track in a closed vehicle so that he cannot see and makes no effort whatsoever to see an approaching train, nor listens for the same. In other words we do not say that defendant's violation of the ordinance, in failing to lower the gates upon the approach of the train, and the invitation thereby implied, would alone relieve a plaintiff of the consequences of his own negligence, when such negligence so clearly and palpably appears that there could be no room for reasonable minds to differ with respect thereto. Here, if plaintiff was seated within the covered wagon, where she could not see, and made not the slightest effort to ascertain whether or not a train was approaching, we do not say that she could recover. Such was the tenor of some of the testimony on behalf of defendant, but other testimony on behalf of plaintiff made it appear that she was seated upon the front seat of the wagon, and that she did look before entering upon the tracks. Under the circumstances, we think that that question became one for the jury, and we do not see how we could pass judgment thereupon as a matter of law.
In this connection it is urged that the court is not bound by testimony demonstrated to be false by all of the other facts in the case, or so utterly opposed to the physical facts appearing as to be utterly unworthy of belief. [See Sexton v. Railroad, 245 Mo. 254, 149 S.W. 21.] This is an old and familiar rule of law, frequently announced by our Supreme Court. But we feel that we cannot say that all testimony adduced in plaintiff's behalf tending to show that she looked should be utterly rejected upon this ground. It is true that it may seem reasonable to suppose that plaintiff, under ordinary circumstances, would have seen the headlight of the approaching train had she looked; but, as we have said, there was apparently the glare of other headlights about the crossing, and the night dark and foggy, making the situation different from one where a traveler approached a railroad track in broad daylight with his view unobstructed, and where it may be said peradventure that to look is to see.
Our Supreme Court has frequently held that where there is flagrant violation of a law or municipal regulation, resulting in an injury, contributory negligence should be clearly made out, before the court may relieve the defendant from liability on that ground. [See Bluedorn v. Railway Co., 108 Mo. l. c. 449, 18 S.W. 1103, 121 Mo. l. c. 268, 25 S.W. 943; Petty v. Railroad, 88 Mo. 306; Baker v. Railroad, 147 Mo. 140, 48 S.W. 838; Jennings v. Railroad, supra.] We do not understand that the Supreme Court has departed from the doctrine above mentioned. On the contrary, in the recent case of Lueders v. Railroad, 253 Mo. 97, 161 S.W. 1159, it is said:
Here we think that plaintiff's conduct must be viewed in the light of the fact that defendant had impliedly invited her to come upon the tracks; not that she was thereby wholly relieved of the duty to exercise care for her own safety, but that the standard of ordinary care under such circumstances is by no means the same as in cases where such implied invitation is not present; and furthermore that her contributory negligence must be very clearly made out before a court is justified in refusing to submit the question to the jury.
Our attention is also directed to that portion of the opinion which refers to the street car which was said to have been standing north of the railroad tracks, and which it is said obstructed plaintiff's view to the west. It is pointed out that plaintiff testified that she did not see either of the street cars that stopped at this crossing; and it is urged that the fact that she said that she did not see these cars, which were undoubtedly there, shows that she did not look at all before going upon the tracks. It is true that plaintiff did so testify, but she says that she saw many cars passing that place that...
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