Underwood v. St. Louis Iron Mountain & Southern Railway Co.

168 S.W. 803, 182 Mo. App. 252, 1914 Mo. App. LEXIS 409
Missouri Court of Appeals·Decided June 29, 1914·Published·Cited by 10 cases

Opinions

STURGIS, J.

This suit originated in Lawrence county, Missouri, but was tried on change of venue in Jasper county. It was brought' by the wife to recover for the death of her husband under section 5425, Revised Statutes 1909. The husband was killed at a public road crossing some four miles southeast of Aurora by colliding with defendant’s passenger train while he was attempting to cross the defendant’s track at that point about noon, July 1, 1913. He was at the time a rural route mail carrier traveling out of Aurora in an open, ordinary, steel tired, one horse buggy, with a large umbrella fixed to the seat and buggy bed for [258] a shade. The defendant’s track as it approaches this crossing going from Aurora, the direction the train in question was going, runs somewhat south of east, curving to the south. The wagon road on which the deceased, Martin L. Underwood, was traveling runs directly east as it approaches this crossing going in the direction deceased was traveling. The train and the deceased were therefore both traveling in a generally eastward direction, the railroad and wagon road being somewhat’ parallel but gradually converging towards and meeting at this crossing. The wagon road is south of the railroad until it reaches this crossing and then passes on east and north. As the deceased was traveling much the slower, the train came from behind him and caught him as the hind wheels of his buggy were leaving the track. It should be said, however, that the wagon road curves northward on entering the right of way and the railroad curving southeastward causes the two to cross nearly at right angles. For convenience we will speak of the railroad as running east though it angles and curves -towards the southeast. The east-bound train, which killed deceased, was running about one hour late and on a slightly down grade. It was using little steam, thereby lessening the noise of running. The deceased was also traveling down hill as he approached the crossing on a road more or less rocky at different places, thereby causing more ór less noise by the steel tires of his buggy. A mild wind was blowing in a direction tending to carry the noise of the-train away from the deceased. Back west of the crossing at .the whistling post, eighty rods from the crossing, the wagon road was some one hundred and fifty yards south of the railroad and on considerably higher ground. It continues on higher ground until it commences to descend some two hundred and fifty feet from the crossing. Five hundred feet west of the crossing the two roads are about one hundred and eighty feet apart,

[259] The negligence counted on in the petition is a failure to give the statutory signals of keeping the bell ringing or sounding the whistle at intervals beginning eighty rods west of the crossing so as to warn the deceased of the approach of the train to the crossing, where the- two did arrive at the same instant. The petition also pleads a violation of the humanitarian rule in that the persons operating the train saw or with due care could have seen the deceased and his apparent peril after he came, into the danger zone and could have with reasonable care, but negligently failed to so use the means at hand in giving alarms and checking the speed of the train as to avoid the collision. The defendant denies the allegations of negligence on its part and plead negligence of the deceased in going upon the crossing, a place of known danger, without taking reasonable precautions in stopping, looking and listening for the coming train. The plaintiff recovered judgment for $10,000, the full amount allowed by law, but voluntarily remitted $2500', and, thereby, defendant’s appeal is to this court.

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Underwood v. St. Louis Iron Mountain & Southern Railway Co., 168 S.W. 803, 182 Mo. App. 252, 1914 Mo. App. LEXIS 409 (Mo. Ct. App. 1914).

168 S.W. 803 (Underwood v. St. Louis Iron Mountain & Southern Railway Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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