Baker v. Kansas City, Fort Scott & Memphis Railroad

26 S.W. 20, 122 Mo. 533, 1894 Mo. LEXIS 77
CourtSupreme Court of Missouri
DecidedJune 4, 1894
StatusPublished
Cited by46 cases

This text of 26 S.W. 20 (Baker v. Kansas City, Fort Scott & Memphis Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Kansas City, Fort Scott & Memphis Railroad, 26 S.W. 20, 122 Mo. 533, 1894 Mo. LEXIS 77 (Mo. 1894).

Opinion

[540]*540DIVISION ONE.

Black, C. J.

This was an action to recover damages for personal injuries sustained by the plaintiff,' while she was attempting to pass over the defendant’s railroad tracks with a two horse team and farm wagon, at a point where the tracks cross a highway near the southern limits of the town of Rich Hill.

It is earnestly insisted that there is no evidence of negligence on the part of the defendant; that the plaintiff was guilty of contributory negligence, and that the trial court should have ruled both of these questions for the defendant as a matter of law.

The record discloses the following facts: The railroad tracks run nearly east and west, and the highway runs nearly north and south at the crossing. The plaintiff was traveling towards the north. When she reached a point from eighty to one hundred and twenty-five feet south of the railroad crossing, a train of cars composed of an engine, caboose and four flat cars passed over the crossing going east. After the train passed, the plaintiff drove on, and, while on the second, or main track, five detached box cars following after the train struck the wagon.

The train was at first composed of all of the cars before mentioned. The conductor desired to take out the four flat cars and place them on what is called the brickyard switch, which was some distance east of the crossing. When at a point about four hundred feet west of the crossing he caused the five rear box cars to be detached, and the engine then ran on east over the crossing with the caboose and flat cars with a view of setting the flat cars in on the brickyard switch. The five detached box cars followed- the train on a down grade in charge of the conductor who was on top of them. He says he saw the plaintiff when he was two [541]*541hundred and fifty feet west of the crossing, that she was then one hundred or one hundred and fifty feet south of it, that she could have seen the moving box ears if she had looked, that he whistled and hallooed to give her warning, that when he got within one hundred feet of the crossing he saw she did not notice the cars, that he then set the brake on the forward car and then on the second one and jumped off. He says he jumped off because he knew the cars would strike the wagon and he thought the collision would ditch the cars. Several other witnesses say the conductor shouted to the plaintiff before he began to set the brakes. One of them, who stood about one hundred and fifty feet from the crossing, says the box cars were from seventy-five to one hundred feet from the crossing when he first heard the shouts of the conductor, and it was then that the conductor began to set the brakes. The box cars were moving at a rate of speed variously estimated at from five to twelve miles per hour.

The highway south of the railroad was, in general, level. At a point fifteen or twenty feet south of the crossing it was four or five feet lower than the railroad tracks, and some two feet lower at a distance of one or two hundred feet further south. An engine house and coal bin stood west of the crossing and south of the main track, so that they obstructed, to some extent, at least, plaintiff’s view of the box cars as they moved towards the crossing. According to the measurements made, the east end of the coal bin was about one hundred feet west of the center of the main track crossing. This structure stood on posts four feet, four inches above- the ground, and the box part was two feet, four inches higher. It was sixty-four feet long, extending west nearly parallel with the main track. There was a space of twenty-five feet between the west end of the bin and the engine house. There is evi[542]*542deuce to the effect that a person in a wagon on the highway at a point from one hundred to one hundred •and fifty feet south of the crossing could look over the bin and see the upper part of box cars moving on the main track, and there is other evidence to the effect that the bin stood on ground higher than the highway, so that the line of vision would be above the box ears.

In going north the plaintiff first came to two spur tracks, and twenty or twenty-five feet further north .she came to the main track, the place where the cars struck the wagon. As the coal bin was one hundred feet west of the crossing, it is evident that a person one hundred feet south of it in a wagon on a highway would have a full view of at least one hundred feet of the main track from the crossing west; and the extent of this view would increase as the person approached the tracks.

The evidence shows that the plaintiff had often passed over this crossing and was familiar with the surroundings. Being asked if she looked west, she ■said: “Well, I do not say for sure that I looked, but I always do look and I think I must have looked that time;, if I failed to look it was the first time.” And to another like question she said: “Well, I always looked before I drove on the track, and if I failed to look that time it was the first, but to the best of my knowledge I looked each way. She had previously said “I was driving when the engine passed on, and of course when I saw it was out of the way I drove on; I know I was not out of a good walk.” When she got on the main track she gave her horses a stroke with the lines. ■Of the four witnesses who saw her and heard the conductor halloo, two did not know which way she was looking, and two thought she was looking east toward the'train she had passed. It is manifest that she did [543]*543not hear the shouts of the conductor, nor did she see the box ears until she got on the main track. She had a hood on her head, which was produced in court. Some of the evidence tended to show that it interfered with her hearing, and some of it is to the contrary effect.

1. As to the first objection we have no hesitancy whatever in saying there is an abundance of evidence of negligence on the part of the defendant. The right of the public to use the highway is equal to that of the defendant; and the defendant was in duty bound to manage the movement of, its cars accordingly. The practice of making a flying switch over a highway has been condemned as a negligent act time and again by this and other courts. Here the evidence of the conductor shows that the five box cars were detached from the moving train and allowed to run on a down grade at a rate of at least six miles per hour. The engine having been detached no signals could be given by ringing the bell or sounding the whistle, one of which a person traveling on the road has a right to expect. That the defendant was negligent, notwithstanding there was a person on the box cars performing the duties of a brakeman, is too clear to call for further discussion. O’Connor v. Railroad, 94 Mo. 150; Beach on Cont. Neg. [2 Ed.], sec. 217; French v. Railroad, 116 Mass. 537; Brown v. Railroad, 32 N. Y. 597; Railroad v. Converse, 139 U. S. 469; Ferguson v. Railroad, 63 Wis. 145; Railroad v. Schmidt, 126 Ind. 290.

2. A person crossing a railroad must observe due care, and out of this general rule there has arisen the valuable and more specific rule that when one approaches a point where the highway is crossed by a railroad, he must look both ways and listen for approaching trains before he proceeds to cross the track, and this he must do, whether walking, mounted, [544]

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Bluebook (online)
26 S.W. 20, 122 Mo. 533, 1894 Mo. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-kansas-city-fort-scott-memphis-railroad-mo-1894.