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

168 S.W. 803, 182 Mo. App. 252, 1914 Mo. App. LEXIS 409
CourtMissouri Court of Appeals
DecidedJune 29, 1914
StatusPublished
Cited by10 cases

This text of 168 S.W. 803 (Underwood v. St. Louis Iron Mountain & Southern Railway Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
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).

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]*258a 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]*259The 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.

The conditions surrounding this crossing are extraordinary, making it a peculiarly dangerous one to persons approaching it from the west, as deceased was at this time, in case a train, as so happened on this occasion, should also be approaching from the west. For some distance west of the crossing, five hundred feet at least, the wagon road, though only one hundred and eighty feet distant from the railroad and gradually converging, is nowhere in sight'of the same until right at the crossing. The wagon road is some twenty to twenty-five feet higher than the railroad until it starts to descepe! some two hundred and fifty feet west of the crossing. Going down this hill the wagon road is itself in a cut for a distance of one hundred and fifty to one hundred and seventy-five feet, the deepest place being about one hundred and twenty-five feet from the crossing where the cut is four or [260]*260five feet deep. As the wagon road enters on the railroad right of way it leaves this cnt and there is a distance of twenty-five to forty feet nearer level and some ten to twelve feet of this, next to the track, is on a fill, the road there being narrow and ditches three to five feet deep at the sides. There is evidence that after the horse is within eight to ten feet of the track it would be difficult and dangerous to turn around. At a point about fifteen to twenty-five feet west of the crossing1 the wagon road veers from a due east and west course to the northeast and crosses the railroad at right angles ; after crossing the railroad track the wagon road continues down the hill and veers to the southeast three or four hundred feet, then turns north across a valley. Defendant’s track from near the whistling post west of the crossing is cut in the north side of the hill until it reaches the crossing, the hill being about twenty-five feet high and lying between the track and the wagon road running west of the crossing above described. This hill between the railroad track and the wagon road at the time of the accident was covered by a dense growth of trees and bushes with dense foliage and growth of weeds, such hill, trees, bushes and weeds beginning at a point six or seven hundred feet west of the crossing and continuing down to within a few feet of the crossing. On account of the hill and the obstructions thereon a person approaching the crossing in the wagon road from the direction in which plaintiff’s husband came could not see a train coming from Aurora at any point until his eyes were within ten or twelve feet of the rail, at which time his horse would be going over the track and the train but a short distance therefrom. He could not easily hear a train running upon a track giving no signals because the sound made by the train was thrown away from him and across the valley by the hill between the track and the wagon road,- and because of the fact that the wind at the time was blowing in a contrary direction. Thp [261]*261evidence also showed that the train made very little noise. The train approaches the crossing in a cut; the wall of the cut on the right-hand side of the train going east, the side of the wagon road, was higher than any of the parts of the engine and owing to the curve to the south obstructed the engineer’s view of the crossing itself until he had approached to within a distance of four hundred' and forty to four hundred and sixty feet of the crossing. The walls of the cut sloped backwards from the railroad; at the bottom of the cut it was eight feet from the rail. One witness testified that at a point twenty-five or thirty feet back from the crossing a person could see a train only three to four rails length, or one hundred to one hundred and thirty feet. Further back it could not be seen until right at the crossing. There is evidence of several witnesses that on other occasions they were along this road near the crossing and either could not hear at all, or with great difficulty heard, a train approaching the crossing as this one was.

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Cite This Page — Counsel Stack

Bluebook (online)
168 S.W. 803, 182 Mo. App. 252, 1914 Mo. App. LEXIS 409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/underwood-v-st-louis-iron-mountain-southern-railway-co-moctapp-1914.