Yonkers v. St. Louis, Iron Mountain And 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 |
Rehearing Denied 182 Mo.App. 558 at 575.
Appeal from St. Louis City Circuit Court.--Hon. William B. Homer Judge.
AFFIRMED AND CERTIFIED TO SUPREME COURT.
Judgment affirmed.
James F. Green for appellant.
(1) A clear case of contributory negligence on part of plaintiff was established by the evidence, and the court should have so declared. Kelsay v. Railroad, 129 Mo. 365; Dyrcz v. Railroad, 238 Mo. 33; Burge v. Railroad, 244 Mo. 76; Laun v. Railroad, 216 Mo. 563; Stottler v. Railroad, 204 Mo. 619; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Sanguinette v. Railroad, 196 Mo. 466; Hook v Railroad, 162 Mo. 569; Lien v. Railroad, 79 Mo.App. 475; Jones v. Barnard, 63 Mo.App. 501; Drake v. Railroad, 61 Mo.App. 562; Hayden v. Railroad, 124 Mo. 566; Ries v. Railroad, 179 Mo. 1; Lane v. Railroad, 132 Mo. 4; Huggart v. Railroad, 134 Mo. 673; Stepp v. Railroad, 85 Mo. 229; Butts v. Railroad, 98 Mo. 272; Haffey v. Railroad, 154 Mo.App. 493; Sims v. Railroad, 116 Mo.App. 572; Gumm v. Railroad, 141 Mo.App. 313; Farris v. Railroad, 167 Mo.App. 392; Houston v. Railroad, 95 U.S. 702. (2) Under the evidence offered in the case, a verdict for plaintiff could only be the result of passion or prejudice and should not be permitted to stand. Spohn v. Railroad, 87 Mo. 74; Lehnick v. Railroad, 118 Mo.App. 616; State v. Primm, 98 Mo. 373; Whitsett v. Ransom, 89 Mo. 258; Baker v. Stonebraker, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Garrett v. Greenwell, 92 Mo. 125; Rosecrans v. Railroad, 83 Mo. 678; Cook v. Railroad, 94 Mo.App. 425. (3) The court erred in refusing to give defendant's instruction No. 9. Dudley v. Railroad, 171 Mo.App. 657; Hutchinson v. Railroad, 161 Mo. 253; McGee v. Railroad, 214 Mo. 547. (4) The court erred in admitting incompetent testimony on part of plaintiff, particularly the testimony of witness Becker.
Edward W. Foristel and A. R. Taylor for respondent.
(1) The case made on the issue of defendant's negligence in failing to obey the ordinance and keep a watchman there to open gates when no train was to be expected and close them when there was danger of an approaching train is one of clear, undisputed negligence, as the failure to obey the ordinance was negligence per se. Dram v. Railroad, 86 Mo. 574; Hanlon v. Railroad, 104 Mo. 381; Ashby v. Gravel Road Co. 99 Mo.App. 185. (2) The case made on the failure to ring the bell eighty rods from the crossing and to constantly sound it until the engine crossed the crossing, though the evidence was conflicting, was on the evidence for the jury to decide, the rule of decision being that if there is any evidence to support the issue the question of fact is for the jury. Gratiot v. Railroad, 116 Mo. 466; Powers v. Railroad, 202 Mo. 280; McNulty v. Railroad, 203 Mo. 479. (3) Upon the issue of the failure to ring the bell eighty rods from this crossing the fact that witnesses in a position to hear testify that they did not hear the bell is evidence that the bell was not so rung. Gratiot v. Railroad, 116 Mo. 466. (4) With the issue settled upon the evidence by the verdict of the jury, that the statute requirement as to ringing the bell eighty rods from the crossing and constantly until the engine crossed the crossing, was not obeyed, then the effect of such failure to so ring the bell made a prima-facie case for the plaintiff and placed upon the defendant the burden of proving that the failure to ring the bell was not the cause of the injury, and this by force of the statute of itself. Section 3140, Rev. St. 1909, as construed in the following cases: Huckshold v. Railroad, 90 Mo. 556; McNulty v. Railroad, 203 Mo. 479. (5) Where the evidence shows, as in this case, that the plaintiff traveler was invited by the act of the defendant, to-wit, by having the gate to the crossing open, which was just as much an invitation to this plaintiff to go over the crossing as if the watchman in person had issued the invitation in words, then if injured through this wrongful act of the culprit defendant, her conduct is to be viewed in the light of the fact that she had the assurance from the defendant that she was safe in crossing the tracks. This is reason and human experience which is the unfailing light for judicial inquiry. This presumption this plaintiff had a right to rely upon and act upon. Montgomery v. Railroad, 181 Mo. 501; Weigman v. Railroad, 223 Mo. 719; Kennayde v. Railroad, 45 Mo. 255; Donohue v. Railroad, 91 Mo. 363; Boyce v. Railroad, 120 Mo.App. 172; Mayer v. Railroad, 71 Mo.App. 142; Millsap v. Beggs, 122 Mo.App. 12; Conaty v. Railroad, 164 Mass. 572; Railroad v. Stegemeier, 118 Ind. 309.
This is an action for personal injuries sustained by plaintiff by reason of a collision of defendant's train with a wagon in which plaintiff was riding, at a street crossing in the city of St. Louis. Plaintiff recovered and the defendant prosecutes the appeal.
Defendant's tracks pass through the southern portion of the city of St. Louis, crossing Broadway, a public street in said city. At this point such tracks extend nearly east and west, Broadway extending north and south. Two tracks were here maintained by the defendant, at the time in question, one, the south track, for the use of eastbound trains, and the other, the north track, for the use of westbound trains; and at the southeast corner of the intersection of such tracks and the aforesaid street the defendant maintained a passenger station. Along Broadway were double street car tracks crossing defendant's tracks.
At the time of plaintiff's injury the defendant maintained gates or guards at such crossing, intended to be lowered across Broadway upon the approach of a train. It seems that the defendant then maintained a watchman at said place to lower such gates or guards, upon the approach of a train, only during the day, and not after seven o'clock in the evening; that such gates were sometimes lowered at night by a police officer when trains were passing, but that after seven o'clock p. m. no one was charged with such duty. Plaintiff was driving a covered spring-wagon, drawn by two horses, and proceeding south along Broadway on the evening of June 4, 1909, between 8:30 and 9:00 o'clock p. m. The gates had not been lowered, and plaintiff drove upon defendant's south or eastbound track, when the team and wagon were struck by an eastbound passenger train of defendant, inflicting upon plaintiff the injuries for which she sues.
The petition alleges that the defendant was negligent in having such gates or guards elevated at said time, whereby plaintiff was invited to drive over its tracks. And an ordinance of the city of St. Louis is pleaded requiring every corporation running or operating engines or cars propelled by steam power across any street in said city, used for wagon travel, to erect a gate or gates, and, unless the same are opened and closed automatically, to keep a watchman to open and close the same, who shall close them immediately before the passage of any engine, car or train of cars. And it is averred that the defendant did construct and maintain such gates, but that the latter did not operate automatically, and that defendant neglected to provide a watchman to lower the same before the passage of the train which caused plaintiff's injuries.
A further assignment of negligence consists of the alleged failure of the defendant to cause the bell upon its engine to be constantly sounded while such engine was moving within the city of St. Louis, in violation of an ordinance of said city. And it is further alleged that defendant negligently failed to cause such bell to be rung eighty rods from said crossing and to be kept constantly ringing until such engine should pass the crossing in violation of the statute. [Sec. 3140, Rev. Stat. 1909.]
The answer is a general denial, coupled with a plea of contributory negligence.
Plaintiff lived upon a farm with her husband near the city of St. Louis, and had for many years been engaged in delivering fruits, vegetables, etc., to persons in such city. Upon the evening in question it appears that she was driving south along the western side of Broadway, and that in order to deliver some berries on the east side of the street she crossed over the double street car tracks and stopped her wagon near the east curb, approximately one hundred feet west of defendant's railroad tracks; though there is some confusion in the testimony as to the movements of the wagon prior to the collision. It was raining, and it is said that the night was dark and foggy. Plaintiff testified that after delivering her berries on the east side of Broadway she stopped to put covers on her horses, that she then looked and saw that the gates were open, and thereupon proceeded to drive south toward defendant's tracks; that upon approaching the latter she looked both to the east and to the west, but did not see the train approaching from the latter direction. The wagon in which she was riding was equipped with curtains at the sides and rear which, it seems, were down at this time. Plaintiff testified that she sat upon a seat at the front of the wagon, with her feet outside of the latter. It appears that there was a small glass in the curtain immediately to the right or west of the seat upon which plaintiff says she was sitting, through which she could look to the west.
With respect to driving upon defendant's tracks, plaintiff, on direct examination, testified in part as follows:
To continue reading
Request your trial