Lagarce v. Missouri Pacific Railroad , 183 Mo. App. 70 ( 1914 )

REYNOLDS, P. J.

(after stating the facts).—"We have set out the evidence with some prolixity, but as briefly as possible to give appellant all the benefit of it which counsel claims.

The points relied upon for a reversal of this judgment are three.

Taking them in their order, the first point made is, that a clear case of contributory.negligence on the part of plaintiff’s husband was established by the evidence and the court should have so declared. A multitude of authorities supposed to support this proposition are cited by the learned counsel for appellant, which will appear in the report of the case. Each and all of them announce propositions and apply principles that have been threshed out over and over and it will serve no useful purpose to attempt to review them. The principles well settled, the point lies in the application of them to the facts. No two cases are exactly alike on the facts. They are useful and of authority only in the application of the principles to those facts. One rule running through all of them is that it is only when the testimony is very clear and practically uneontradicted, that the court, in a given case, will declare, as a matter of law, that the contributory negligence of the plaintiff bars recovery. In the case at bar it would have been error for the trial court to so declare and it is impossible for us, with that testimony before lis, even as presented by the learned and very fair counsel for appellant, to hold, as a matter of law, that contributory negligence on the part of plaintiff’s husband was established by the evidence. Under this evidence, following it as summarized by the learned counsel for appellant himself, it was for the jury, properly instructed as it was, to pass upon the issue of contributory negligence as a fact. That issue has been found contrary to the contention of counsel for appellant and we cannot disturb the verdict on that ground, supported as that verdict is by substantial and competent evidence.

The second point is that the court erred in refusing to give defendant’s instruction numbered 9. That instruction is as follows: ‘ ‘ The jury are further instructed that, if you find from the evidence that the death of plaintiff’s husband was the result of unavoidable accident due to the inadvertent act of John Lagarce in driving .his team on the defendant’s track immediately in front of a moving train, then your verdict must be for defendant railway company.”

Among other authorities cited by learned counsel for appellant in support of this instruction is Zeis v. St. Louis Brewing Association (not.“Zeis v. Railroad,” as twice erroneously printed by counsel), 205 Mo. 638, 104 S. W. 99. That authority, as we understand it, is against counsel’s position. The instruction there before the court and passed on by it is as follows (1. c. 645): “2. If you find and believe from the evidence in the cause, that plaintiff’s injury was the result of accident in the sense of misadventure, then your verdict must also be for the defendant.” The court held in the Zeis case, supra, that this instruction under the facts and issues in that case was erroneous. While the court referred approvingly to the instruction given in Henry v. Grand Avenue Ry. Co., 113 Mo. 525, 21 S. W. 214, it distinguishes the Henry case from the Zeis case on the facts. The instruction in the Henry case, supra, l. c. 534, was as follows: “If the jury believe from the evidence that the injuries sustained by the plaintiff were merely the result of accident, then your verdict will be for defendant. ’ ’ The saving word in this latter instruction is held to have been “merely.” The Henry case further turned on the defense, which was that plaintiff there had accidently tripped on a crowbar, and that defendant was in no way responsible for that. In commenting on the instruction given in the Zeis case, it is said (l. c. 650): “After the respondent (plaintiff there) had made out his primafacie case, by showing the defective condition of the box and his injury thereby, then the burthen was on the appellant to prove to the jury that it had performed all the duties it owed the respondent, by properly selecting, inspecting and repairing the boxes. This it attempted to do by the evidence, but nowhere was the jury required to find it had performed that duty before they could find for the appellant. It ignored all the evidence introduced by appellant, and told the jury that if the injury was the result of an accident, then they would find for it.”

The ninth instruction, as asked and given here, left out all the elements of defense, that is to say, failure to comply with the requirements of the ordinance as to speed and ringing the bell. This instruction is furthermore erroneous in that it told the jury that if they found from the evidence that the death of plaintiff’s husband “was the result of unavoidable accident due to the inadvertent act of John Lagarce m driving his team on the defendant’s track immediately in front of a moving train, then your verdict must be for the defendant railway company.” This puts all of the negligence on Lagarce and leaves out of consideration any possible negligence on the part of defendant. It was erroneous in referring to the act of Lagarce as an act of inadvertence. It was not inadvertence at all. He drove onto the track of purpose and in assumed safety. In a sense, the killing, the happening, was an accident, for'it was not done of purpose, but in law it was not, if the facts are as here found. Where, as here, the evidence tended to show that Lagarce was travel-ling very slowly, about two or three miles an hour, as he approached the danger point—and all crossings of streets over railroad tracks are danger points—had stopped inside of thirty-nine feet from the crossing, had looked and listened—could see a clear track for from seven to nine hundred feet to the east, neither saw nor heard the on-coming peril—and in that failure he was not alone, for others standing in the locality neither saw nor heard it—and was caught and killed by a train running at an unlawful speed, without observance of the requirements of the ordinance, there was no accident about it. The result was to have been anticipated—provided he was on the track. Lagarce, with no peril in sight for at least seven hundred feet, had a right to assume that no train, travel-ling over that distance at not exceeding the lawful speed of twenty iniles an hour could possibly have touched him before he could have crossed in safety. So there is no accident, meaning that which could neither be anticipated nor avoided. The instruction was properly refused.

The third point is that the court erred in refusing to give defendant’s instruction numbered 3, as asked and in modifying that instruction. We set out that instruction as given, putting in italics the words inserted and running a line through those stricken out by the court:

“The jury are further instructed that, if you find from the evidence that plaintiff’s husband, John Lagarce, was prevented from seeing the approach of a train coming from the east on account of the presence of cars which were standing on the northern tracks, or from any other canse, then it was the duty of said John Lagarce to stogJasAeasa. look before going on the tracks and to listen for an approaching train; and, if yon find that he conld, under such circumstances, have discovered the train by sí@pptilgL-S2íd looking or listening for it, and that he drove upon the track without -S-t-9-g-g-klg' looking or listening, then in that event plaintiff is not entitled to recover.”

The evidence in the case practically without dispute, showed that the deceased, when he turned his team into the road and was within less than forty feet of the crossing, did stop and look for an approaching train from either the east or west, turning his head. It is to be assumed from this act, .that he listened, for there is evidence that his hearing was normal. At forty feet he could- have seen an approaching train from the east, if it had been within seven hundred feet, appellant’s civil engineer says nine. There was no train then in sight, according to testimony in the case, coming from the east or as near as seven hundred feet. He then had to drive only forty-three feet for his wagon to clear the track. That his team moved at the rate of from two to three miles an hour, is undisputed. Mathematically considered, and accepting the figures of counsel for respondent, if he was going only two miles an hour, the train, at the rate that' he had a right to presume it would not exceed, namely, the ordinance speed of twenty miles an hour, would have been at least three hundred and twenty-three feet east of the crossing when he was safely across. When he stopped his team'at a place inside of forty feet from this crossing and looked and listened for an approaching train and neither saw nor heard one at that time, and he had a view for about seven hundred feet up the track to the east, he had a right to presume that he could cross in safety. He had a right to áct, to move. on. Under the facts in evidence in this case, we cannot hold the law to be that he was bound to stop again before attempting to cross. This instruction as asked tended to direct the jury that the stop which Lagarce beyond question did make, was not sufficient, and that would have been error. The general rule only requires that one look and listen when approaching a danger point. There are exceptional cases in which, in addition to looking and listening, one is required to stop. But that has been held to apply when one is so situated that he could neither see nor hear. No such case is presented by the testimony in this case, even with the cars on the spur tracks obstructing the view for a time. Considering all the evidence in the case, the decedent used all the care which the law and human prudence demanded before attempting to cross the tracks. It must be remembered that this tragedy was one of seconds—was measured by the rapidly running second hand, not by the slower recorder of minutes. Defendant’s skilled witness, a civil engineer, Mr. Butterworth, testified that walking at an ordinary gait it had taken him fifteen seconds to walk from the immediate vicinity of the street car tracks on Manchester avenue to the main track of the defendant’s road. Lagarce was driving from two to three miles an hour, the latter nearly the ordinary gait of a man walking. Mr. Butterworth further said that looldng over the tops of cars, a person turning from Manchester avenue into the dirt road could see east up the track nine hundred feet. Lagarce was about there when he stopped and looked and listened and saw nor heard any train. There was nothing to warn him that he then was within the danger zone. Others standing on Manchester avenue, further east than Lagarce, neither saw nor heard the approaching train. We think the court committed no error in altering the instruction in the manner which it did and that the instruction as altered submitted the case to the jury in as favorable a light and as favorable a view of the law as the appellant was entitled to ask.

We see no reversible error to the manifest prejudice of the defendant in the case and are of the opinion that the judgment of the circuit court should be and it accordingly is affirmed.

Nortoni and Allen, JJ., concur.