Harshaw v. St. Louis, Iron Mountain & Southern Railway Co. , 173 Mo. App. 459 ( 1913 )

ROBERTSON, P. J.

—On May 28, 1912, Aaron W. Harshaw was killed at a crossing on the defendant’s railroad by a passenger train and on August 9, 1912, the plaintiff, as administrator of his estate, brought this suit under section 5425, Revised Statutes 1909, alleging a failure of'the defendant to ring the bell or sound the whistle as required by section 3140, Re-' vised Statutes 1909.

The testimony introduced at the trial discloses that the crossing at which the accident oeeured is on a public road, running north and south, through what is called Bowers Mill in Lawrence county; that the crossing is 2420 feet east of the station of Larussell, which is on the south side of the defendant’s railroad. The place called Bowers Mill is a little settlement in which there is a store, hotel, livery stable and some other buildings north of the crossing about a thousand feet and some residences a short distance south of the crossing. The train which caused the accident was coming from the east upon a track that enters a cut 2237 feet east of the road crossing, runs through the cut 800 feet in a northwesterly direction and passes a mile post 98 feet further on towards the station, curves slightly to the southwest and 533 feet east of the crossing passes what is called the red elevator or mill south of the track, and at 450 or 454 feet east of this crossing it crosses an old wagon road with an old approach on the north side of the track, and at 367 feet east of the crossing where the collision occurred it passes what is called the white elevator on the south side of the track. The track is on a fill eight feet above the natural surface of the wagon road which decreases towards the cut. On the north side of defendant’s railroad, at the crossing where the collision occurred, it constructed an incline approach -for the wagon road and placed thereon a culvert sixteen feet wide, made of planks. The south edge of this culvert is twentyr nine feet from the north rail of defendant’s track and the north edge of the culvert is twenty-three feet south of where the fill commences. The top of the culvert is six feet eight inches from the ground or bottom of the ditch over which it is built. • .

On the morning of the accident, which was a. bright, clear day, at about 10:30, the deceased and his aged wife were driving south on this public road in a buggy drawn by two horses and as they passed over this crossing the rear portion of their buggy was struck by the engine of defendant’s train and both of them were killed, the wife dying instantly and the husband surviving only a short time.

It is undisputed that the train came through the cut at the rate of forty-five or fifty miles , an "hour,but there is some dispute as to the ringing of the bell or the sounding of the whistle and as to the obstructions which were upon the old approach north of the railroad 450 or 454 feet east of this public road crossing where the collision occurred.

There were four persons who crossed the railroad track at this crossing shortly before, these, old persons were killed, and their attention-was (-partieularly-. directed to the train because they knew the'time.,the train was due and remarked as they were going over the track that it was about train time, and one of them took out his watch and observed the time, and they continued to watch the deceased and his wife and when these witnesses were about 117 steps south of the railroad crossing they first saw and heard the train, after all of the coaches had passed the white elevator, and they then first heard any signal given. There are numerous other witnesses who testified that no signals were given until the train had reached the white elevator or some point near there. From the cut to the crossing the grade is descending until the station in Larussell is reached.

There is an abundance of testimony to the effect that one approaching the crossing where the collision occurred from the north could not see beyond the old crossing until they had advanced upon the culvert to within about eighteen of twenty feet of the railroad track. There is other testimony to the effect that eighty feet north of the defendant’s track neither cars nor engines thereon could be seen approaching from the east. Others testified that at the time one started up the grade at the crossing it was impossible to see a train east of the old crossing. • There was also the testimony of a witness to the effect that for the entire distance of 880 feet north of the crossing there were only short intervals, of about one-half that distance, where a train could be seen beyond the old crossing, and, as the witness was indicating on a plat, we infer that the last point at which the witness testified a train could be seen was a considerable distance north of this crossing.

The section foreman of the defendant who had in charge the right of way along the portion of the defendant’s track in controversy was a witness and testified that in September and October, 1911, there were cut off of the right of way, under his supervision, “weeds and some new sumac, blackberry briars. That was about all. Maybe a few sprouts. ”

Tbe appellant presents its ease here on the theory that the physical facts were such that it must be held as a matter of law that the deceased could have seen the train had he looked or heard it if he had listened before he arrived at a place of danger and could, had he exercised these senses and exercised reasonable care, have avoided the collision. The appellant assumes that even when' the deceased was yet north of the track and' south of the culvert, and when the train at that time was coming past the mill and elevator, that by the exercise of reasonable care, he could have avoided the accident or should not have undertaken to go upon the defendant’s track; but upon this point we are of the opinion that the appellant misconstrues the' law and the facts.

If, as the jury must have found, there being much testimony tending to prove it, the defendant’s right of way was obstructed so that the deceased, before passing over the culvert, could not have seen the train if he had looked, and if there were no signals given by the defendant and the deceased could not have heard the train had he listened, then, up to the point where he was, as all of the witnesses who saw him (including the fireman and engineer on the defendant’s engine) testified,' it could not be said as a matter of law that the deceased was negligent in proceeding up to that point. [Baker v. Railroad, 122 Mo. 533, 544, 26 S. W. 20; Weigman v. Railroad, 223 Mo. 699, 123 S. W. 38; Donohue v. Railroad, 91 Mo. 357, 361, 363, 2. S. W. 424, 3 S. W. 848.]

If the deceased had reached the point between the south end of the culvert and the defendant’s tracks even before he was guilty of contributory negligence, then it is insisted by the appellant that we should hold that he was guilty of contributory negligence and that the plaintiff cannot recover because the deceased should not have continued onto the defendant’s tracks. Under those conditions, considering his perilous situation, from that point on, under the authorities, it is clearly a question for the jury which, in this ease, has been passed upon by them and resolved against the appellant and, therefore, we are relieved of any further discussion upon that point. [Kleiber v. Railway, 107 Mo. 240, 247,17 S. W. 946; Donohue v. Railroad, 91 Mo. 357, 365, 2 S. W. 424, 3 S. W. 848; Byars v. Railroad, 161 Mo. App. 698, 706, 141 S. W. 926; Feeney v. Railroad, 123 Mo. App. 420, 431, 99 S. W. 477; Ransom v. Depot and Express Co’s., 142 Mo. App. 361, 369, 126 S. W. 785.]

“When the deceased reached the point between the south end of the culvert and the defendant’s tracks he was in a position where under the conditions there existing a reasonably prudent person may have concluded that the safest course to pursue.was to undertake to cross the tracks rather than to get his team back off of the track, as some of the witnesses testified the team was on the track; or, if the team was not on the track, then he may have considered it too dangerous to remain on or near the culvert and crossing where his team might precipitate the buggy and its occupants off of the culvert, as some of the witnesses testified the team was afraid of even a thrasher engine. Some of the witnesses testified that the deceased was making desperate efforts to get across the tracks by slapping his team with the lines and the physical facts disclose that he almost succeeded. Under these facts which must have been found by the jury, we are clearly of the opinion that on account of the defendant’s negligence he was in a perilous position and that the defendant cannot now be heard to say that the deceased might have taken a safer course. We doubt very seriously if, after a thorough consideration of the situation in this case by the appellant, a safer course than the one pursued by the deceased could be suggested by it.

The argument in appellant’s printed brief filed herein begins with this statement: “The sole ground upon which appellant seeks a reversal of this cause is, that the evidence wholly fails to show any liability on the part of the defendant, and that upon the whole record the trial judge should have directed a verdict for the defendant.” And further along in the argument, after referring to alleged errors 'in instructions given in behalf of the plaintiff and requested in behalf of defendant and refused, it is said: “Although we would unquestionably be entitled at least to a new trial, on account of these errors, we do not seek it and stand squarely on the proposition first stated, viz: That this case should be reversed outright, because the evidence absolutely fails to show any liability on the part of the defendant.”

We are clearly of the opinion that this was a case for the jury and that consequently the court did not err in refusing to instruct thp jury to return a verdict for the defendant and, as the appellant in its -brief eliminates from our consideration every other proposition involved, we affirm the judgment of the trial court.

Sturgis, J., concurs. Farrington, J., concurs in part in a separate opinion.