Moberly v. Kansas City, St. Joseph & Council Bluffs Railway Co.

Opinion by Philips, P. J.

I. We will consider this case in the order of the principal and real grounds upon which the recovery was finally based. First, as to the sufficiency of the crossing. In addition to the common law obligation resting upon the railroad companies to make reasonably safe crossings where they intersect a public highway, our statute *535 (section 807) provides that: “Every such corporation shall construct and maintain good and sufficient crossings, where its railroad crosses public roads, or town streets, now or hereafter opened for public use, which crossing shall be constructed of the materials and in the manner following: On each side of each rail shall be laid a .plank of not less than eight inches in width, and the remaining space between the rails shall be macadamized ; on the out side of each rail there shall be macadamized or gravel pavement of not less than six inches in depth, and not less than four nor more than ten feet in width, to be determined by the road overseer or street commissioner, etc. ; this pavement to be substantially and properly joined up to the plank provided to be laid on the outside of each' rail. If such corporation fail to construct and maintain such crossings, such corporation shall be liable for all damages resulting from such neglect.” The evidence in this case tended to show that defendant had not complied with this statute in the construction of this crossing. But defendant contends that notwithstanding this omission on its part, the plaintiff cannot recover on account thereof, because it is apparent from the evidence that the injury complained of did not result from this neglect. The law is well settled in favor of this proposition. There must be a direct connection between the negligent act and the injury. — C. B. & Q. Ry. Co. v. Natze, 66 Ill. 455 ; Wallace v. R. R. Co., 74 Mo. 594 ; Stepp v. R. R. Co., recently decided by Mo." Supreme Court.

We think it a fair deduction from the plaintiff’s evident that the absence of the macadam or gravel did not delay his passage over the track proper. There was evidence to the effect that, on account of the highway turning as it did immediately parallel with the railroad after crossing, the hind wheel of a wagon next to this rail would “scrape” and slide albng the rail. If this near wheel of the wagon so caught and slid on the rail because the filling between the tracks and the plank was not joined up to the rail, and flush with it, it would be a negligent construction. The evident object of the stat *536 ute in requiring the plank on either side of the rail was to enable the wheels to pass over the rails freely and easily; and if injury resulted from the neglect of this duty on the part of the railroad company an action would lie therefor.— Wasmer v. Del., L. & W. Ry. Co., 80 N. Y. 212 ; Dalzell v. The I. & C. Ry. Co., 32 Ind. 45 ; The I. & C. R. R. Co. v. The State ex rel., 37 Ind. 492 -502. It is difficult in this case to discover that on this occasion this defect delayed the wagon; but if that was usually the effect, as testified by one witness in substance, it might not be an unreasonable inference for a jury to believe that, in an emergency like that which found the plaintiff at this crossing, when every degree of friction but increased his peril, this fact performed some office in the result.

Conceding, however, that this evidence was of too unsubstantial a character to predicate a verdict on, there is another fact, connected with this immediately, which constitutes, in our opinion, an important factor in this controversy: It is quite apparent from the evidence that had this crossing been so constructed as to have enabled the right hind wheel of the wagon to escape from the rail on the east side of the track simultaneously with the left wheel, the plaintiff in all-probability would have gone uninjured. The inquiry, therefore, is: Who is responsible for the condition of this road, as it left the track? The learned counsel for defendant insists that the railroad company has nothing to do with the approach to this road track; that the location of the public road pertains to the county courts, or the county road commissioners, who alone would be responsible for the direction the highway might take after leaving the rails of the railroad. We may concede for the purposes of this controversy, that there would be force in this suggestion, if the railroad had first been constructed along this point. The party coming afterward to locate a highway, intersecting the first located road, might choose its own approach; and, as it would be acquiring an easement, common justice and fairness would require that it should so construct its approach as not unnecessarily to *537 impair the use to the - first occupant of the right of way.

But the evidence of plaintiff, which was uncontradicted, was, that the public highway had been constructed there for thirty years or more, and had been in continuous use ever since by the public, and that defendant was the second comer.

The statute (sect. 807 aforesaid) is quite explicit, that “every such corporation shall construct and maintain good and sufficient crossings where the railroad crosses public roads.”

Bid this defendant, then, sufficiently and reasonably comply with this requirement, in intercepting the public road, in leaving its approach so as to impair its former use, and in increasing the danger to the public in passing on to and from its track with wagons by simply placing a single plank on either side of the outer rail, and leaving vehicles to escape from its track only by turning abruptly along its railroad ties, and so near that a passing train would collide with the vehicle for several feet ? In other words, was it not the plain duty of the defendant to have made at that point a reasonably safe approach to the track of its road, by so constructing the embankment as to have enabled wagons to pass directly off from its road without the danger of running into a pit on its right of way ? There was ample room to have done this without turning teams along its track, as was the case at this crossing. How could the company construct and maintain a good and sufficient crossing at such a place, where it had by its interception, interrupted its former use and safety, without restoring it measurably so as to make it good and sufficient ? As well say that, where the road was required to construct a bridgeway for a crossing, in the case of a deep cut, it could comply with the law by constructing its bridge over the crossing; providing no aprons, but leaving the ends of the bridge elevated ten feet above the former grade of the highway.

This precise question was passed upon by the Supreme Court of Iowa in Farley v. The C. R. I. & P. Ry. Co. 42 Ia. 234) in which it is held that: “ The term crossing *538 includes the necessary embankments or approaches .to the railway and that this duty imposed by the statute exists at common law. Citing People ex rel. Bloomington v. C. & A. Ry. Co. (Amer. Rwy. Rep. 66), Beck, J., says: “The object of the law is to secure the public from the inconvenience and expense which would result from the destruction of highways when they are crossed by railroads. It is intended by the law that the corporations operating or owning such roads, by the construction of sufficiently safe crossings, shall relieve the public of the expense thereof. The highway is to be left by the corporation in as good condition as it was before. Counsel contend that the embankments constructed as the necessary approach to a railroad crossing is no part of the crossing, and the company is not, therefore, required to keep it in repair. The term occurring in the statute is used to indicate the structure intended as a means of crossing the railroad. It is not confined to the part of the structure which is upon the railroad track. This is obvious from the fact that if an embankment or excavation is demanded to enable the vehicles to cross the railroad, a simple structure upon the track would not be the means of attaining the end required, viz., the crossing of railroad. There would in such case be no crossing, a term including every thing necessary to enable travel to cross the track.” See also The Ind. & Cin. Ry. Co. v. The State ex rel. ( 37 Ind. 502 ); Quinby v. Mo. Ry. Co. ( 69 Me. 340 ).

This obligation exists in addition to the specifications of the statute as to how the crossing over the mere rails of the track shall be constructed, for the crossing is to be made good and sufficient; and as a crossing may be good, etc., even when not constructed according to the statutory specifications, so must it follow that the company has not done all,' under circumstances like these at bar (where it has impaired the use of the highway), by merely placing, afterwards, planks at the rails.

The allegations of the petition are broad enough to admit this proof; for it is distinctly averred that defendant was “guilty of negligence in that it failed to provide *539 and maintain a safe and sufficient highway crossing at the point at which said highway intersects said railroad.” — Sect. 3527, Rev. Stat.; Bennett v. Judson, 21 N. Y. 3238 ; I. Cn. Pl. 306; See v. Cox, 16 Mo. 166 ; Kennayde v. Ry. Co., 45 Mo. 258 -9.

But the difficulty which confronts us in affirming the-judgment on this branch of the case is, that the third instruction, given on behalf of the plaintiff, directed the attention of the jury particularly to the manner of the construction of the crossing over the rails of the track ; and the matter of the defendant’s duty and neglect as to-the condition of said approach was not submitted to the jury for their guidance and finding, as it might have been. The instruction told the jury they might find for plaintiff, if the defendant failed and neglected to place the macadam or gravel, etc., about the crossing as required by the statute, and the injury resulted therefrom. We do not think, in view of the plaintiff’s testimony that he rather attributed his misfortune in this respect to-the hindrance incident to making the turn after clearing the track with at least one wheel of his wagon than to-any impediment in getting over the rails, that a verdict based on a cause, possibly which he himself disclaimed, ought to be upheld. Although the plaintiff was entitled, under the pleadings and proof, to have gone to the jury on the condition of said approach, yet, if he saw fit to so-limit his ground of recovery touching this defect as not to include such fact, it would be a dangerous precedent in practice to affirm a judgment, which might have-been based on a ground not justified by the evidence.

II. We are of the opinion that the plaintiff was entitled to have considered by the jury the evidence touching the obstructions on the right of way Gaused, as he claimed, • by the accumulation of weeds, brush, etc. Counsel for defendant assumes that this matter was practically abandoned by the plaintiff, because he predicated no distinct declaration of law thereon. This allegation of the-petition and its proof were material and available to the-plaintiff to explain how his view of an approaching train *540 on the road might have been obstructed so as to have prevented the discovery of the train, even had he looked that way while crossing between two tracks. It also bore on the question of the defendant’s duty on approaching that crossing to keep a more vigilant outlook for any person likely at such a time to be using the crossing.

Such obstructions at such a place are held to be evidence of negligence on the part of railroad companies. And the defendant, it seems from the evidence thought so, as it, subsequent to this disaster, removed the brush, etc.,at this point. — I & St. L.Ry. Co. v. Smith, 78 Ill. 112 ; O. & M. Ry. Co. v. Clutter, 82 Ill. 123 ; C. B. & Q. Ry. Co. v. Lee, 87 Ill. 454 . Chief Justice Scott in the first case •said: “It was negligence in the company to permit or suffer weeds, or anything else to grow upon its right of way to such a height as would materially obstruct the ■view of the highway. The safety of persons and property alike makes it necessary the company should keep its right ■ of way free from obstructions, so that persons approaching the crossing may readily ascertain whether there is danger, and the employes in charge may be enabled to discover whether there is anything on the track.”

Nor is there anything in any decision of the Supreme Court of this state, to warrant the suggestion of counsel that any different rule obtains in this respect in this state. On the contrary the latest utterance of the Supreme Court recognizes this as law in harmony with the ■authorities just cited, as it is a rule of common sense and justice. — Stepp v. C., R. I. & P. Ry. Co., not yet reported.

Nor can we assent to the proposition that, because the plaintiff did not directly predicate an instruction declaring this to be negligence, it was tantamount to withdrawing this fact from the jury. Judge Richardson in Goetz v. Ambs ( 27 Mo. 32 ) said: “It would be a dangerous practice for this court to establish that every judgment must be reversed, because, though each instruction is *541 correct by itself, yet, as a whole, they fail to notice some legal proposition that properly arises on the evidence.”

III. The defendant insists that the court erred in predicating any instruction on the question of defendant’s-imputed failure to ring the bell or sound the whistle, because there was no evidence of such failure. If the question turned upon the fact whether the defendant’s-servants either rang the bell or sounded the whistle on approaching the crossing merely, we might be justified in saying the mere negative character of the plaintiff’s-statement that he did not hear either, was not sufficient, as against the positive statement of the engineer that both were sounded. — Henze v. Ry. Co., 71 Mo. 638 ; Calhoun v. Ry. Co., 60 N. Y. 137 .

But the statute requires railroad companies, on approaching the crossing of the public road, to ring the bell at least eighty rods from the crossing and to continue to-so ring it until the crossing is reached, or to sound the whistle at least eighty rods from such crossing. This requirement could not be met by first ringing the bell or sounding the whistle at a point inside of the eighty rods. Defendant’s instruction touching this inquiry entirely ignored this requirement.

Its fourth instruction was properly refused, because it requested the court to say to the jury that the law only required its servants “to ring the bell or sound the whistle in approaching said crossing, and there is no evidence-that said servants neglected to ring said bell in approaching the crossing at the time of the accident. ”

Under this instruction the jury would have been advised that the defendant had met the law by ringing its bell or sounding its whistle at any point on approaching the crossing, even within one rod of it. Plaintiff’s second instruction very properly told the jury what was the duty of defendant in this respect. It followed the statute.

What was defendant’s proof, in which I think it materially aided the plaintiff? The engineer testified that *542 he sounded the whistle at the whistling post, and that the fireman rang the bell from that point until he reached the crossing. Now the defendant further showed that, by actual measurement, this whistling post was not ■eighty rods from this crossing, but it was nearly three hundred feet short.

And there is another very significant piece of evidence in this connection that might reasonably have warranted the jury in discrediting the statement of the engineer touching this whole matter. The brakeman, Moore, testified that the air-brakes were put on “four or five seconds after the whistle sounded for the crossing.” 'The baggage master, McAleer, who was next to the tender, testified that the train stopped within five or six seconds after it whistled for the crossing. And the conductor, Howard, that the car commenced to stop when he heard the whistle. All of which goes to show that when the engineer sounded the whistle (which he says was when the fireman began to ring the bell), he was then on the plaintiff, within thirty yards of him. It was evidence tending to discredit the engineer, and disentitling the defendant to have this issue taken from the jury.

Again the positive and uncontradicted evidence of the plaintiff was, that as he approached the Hannibal track he stopped near the intersection, the most available point to discover the approach of any train, that he stopped, listened and looked in every direction. Neither hearing nor seeing any train he drove on at once. His pace was such as to make it probable that he could, with perfect safety, clear both tracks in the time necessary for a train to traverse a distance of 80 rods, or at the utmost, it is inferable, that if the train had sounded the whistle or rung the bell at the required statutory distance he in all probability would have heard the alarm before reaching the first track.

Every person has the right to presume that every other •person will perform his duty and obey the law; and it is not to be denounced as negligence for him to assume that *543 lie is not exposed to a danger which, can only come to him through the disregard of law on the part of another. This is just and reasonable, and it is axiomatic. — Kellogg v. C. & N. Ry. Co., 26 Wis. 223 ; Johnson v. Ry. Co., 77 Mo. 551 -2.

IY. The chief contention of defendant’s counsel is,that notwithstanding it may have been guilty of negligence, the plaintiff himself was guilty of such contributory negligence as to preclude him from recovering.

The law recognizes the fact that a railroad crossing is a point of danger. As both plaintiff and the company have the right of way the law demands that each should exercise his right regardful of their mutual privileges and obligations. Owing to the peculiar method of operating the trains on railroads, the rate of speed at which they run, the difficulty in checking them, the necessity for exact conformity to their time tables, it is not an unreasonable requirement that they should have the preference over the citizen, or private conveyance, at such crossing. The great peril to life and limb, on account of the number of passengers usually on such trains, imposes a high degree of vigilance on persons about to cross such tracks. Therefore, the law exacted of the plaintiff on approaching this crossing, that he should, at the nearest and most eligible point to the road, stop his team, listen and look out for any coming train.

And while this is so as to him, it was likewise obligatory upon the servants in charge of defendant’s train to exercise a degree of caution and circumspection in approaching said crossing commensurate with the danger to travel by the public. So that the law should not be so applied to the citizen as to impose the whole responsibility on him for any injury that might ensue; nor should the rule of requiring the citizen to be on the lookout be so construed as to practically deny him the free enjoyment of the public highway to which he is by law and from necessity entitled. — Richardson v. N. Y. Cen. Ry. Co., 45 N. Y. 846 ; Johnson v. Ry. Co., 77 Mo. 546 .

The evidence, on the part of the plaintiff, tended to *544 show that he did observe the obligation of stopping, listening and looking just before venturing upon the crossing. He stopped too at the proper point for taking this observation. His testimony, in this connection, was, that at the point where he so stopped: “to the best of my recollection the hind end of the wagon was under the sign board and the horses close to the railroad.” He saw from his watch that the time for the passing of this train had gone by over half an hour. And defendant’s witnesses admit that the train was late from 6 to 8 minutes. While it is true, that the fact that the time for the regular coming of this train was up did not excuse the plaintiff from the obligation to keep the look-out and exercise care, yet this is a fact bearing on the question, whether he was exercising that degree of care, which men of ordinary prudence exercise under like ■ circumstances. In Powell v. Ry. Co. ( 76 Mo. 82 ), negligence on the part of the' boy killed is, inter alia, predicated of the fact that he knew the train was expected at the time, and that should have quickened his apprehension. It must follow logically, that a person, who is familiar with the time of the arrival of a train, and knows the time for its coming has long since elapsed, would not be held to so great vigilance for the coming of that train as if he knew it was about the time for its coming. And when a train is running out of time its servants in charge should exercise increased care and vigilance. As the plaintiff took the requisite observations, and saw from his watch that the train had probably passed, and hearing no signal of any approaching train, he not unreasonably concluded that he might enter upon the crossings and clear both before it was possible for any train to come a distance of eighty rods. And if in fact the train was inside of that distance when he entered upon the-first track, he had no signal of the fact at the distance of eighty rods as we have already shown.

We are asked by the defendant to hold as matter of law, that the plaintiff was guilty of contributory negligence in not halting his team and making observations *545 from the Hannibal track. This is, as we think, unreasonable. When the plaintiff left the proper point for observation, near the sign board, he was exposed to four dangers, two from trains that might come from the north and two from trains that might come from the south, on the two roads. Every moment he should delay, after he moved from under the sign board, would increase this exposure. Had he stopped on the Hannibal track he would have been immediately exposed to the two dangers from trains on that road. Negligence would have been clearly imputable to him had he been caught after halting his team on this track, especially after he had seen, when only a few feet from it, that it was clear. What would have been his situation, if, while halting there, a train had suddenly burst upon Mm from either direction on either of those roads ? He could not escape backward. He must go forward. If by the forward movement he might have escaped the train on the Hannibal track, yet, by the time lost in stopping on that track, he would have increased the exposure to danger from a train that might come on the K. C. track. From the first track over the latter he had to clear a distance of 73 or more feet, and more in avoiding the danger at the turn after crossing the latter.

Should he have stopped on the fill between the two tracks ? His situation here, it is conceded, was a perilous one. This fill itself was a danger trap. Who was responsible for its condition \ It was on the defendant’s right of way of fifty feet. As the Hannibal road was subsequently constructed, the presumption is that it had an easement on the right of way of the defendant. — Rozelle v. The Han. & St. J. Ry. Co., 79 Mo. 351 . This fill according to the plaintiff’s evidence, was three or more feet high, with large holes on either side of it from which the dirt had been dug in making fills; and the road bed was narrow, just so as to pass along with a wagon by careful driving. There was, on this occasion, a “skift” of .snow on it, and it was slippery. It required Ms attention to keep his way over it. Suppose he had stopped *546 on this “narrow isthmus,” the time thus lost exposed him- to a coming train. Had he been caught between the two tracks his situation was most perilous. He could not go backward. He could not go to either side. A train was liable to frighten his horses, and as they might plunge forward he might be caught on the rails, or if passing them ,at the “gallop ” he was liable to be upset in making the abrupt turn after clearing the track, or to run into the pit in front of this crossing.

Who can say, under circumstances like these, that it was not the part of prudence and wisdom for the plaintiff, from the moment he left the sign board, to have bent all his energies and attention to clearing the tracks without delay of a halt, or turning his eyes to the right or left % No amount of look-out could have saved him harmless perhaps, had a train come after he entered upon the crossing.

At all events these were very practical questions for the judgment of twelve men, and about which different minds might reasonably differ. It is more a question of fact than one of law. In Johnson v. Ry. Co. ( 77 Mo. 553 ), the court held that an instruction was bad, “inasmuch as it allowed the jury to find for the defendant, if plaintiff did not stop, look and listen for an approaching train in time to prevent a collision, without requiring the jury to go further and find that by stopping, looking and listening an approaching train could have been discovered in time to have avoided the collision;” so here it was eminently a question of fact for the jury, whether, even had the plaintiff stopped on this fill betweén the two tracks and listened, etc., for a train, he would probably have avoided the injury. Had he looked for the train ever so much, there was evidence that he could not see it very far on account of the weeds, brush, etc., on the track. Whether he might have escaped had he seen it, was a question of fact for the jury under the peculiar circumstances of the case. And the trial court quite strongly gave the defendant, the benefit of the omission of plaintiff to so look and listen. It is a *547 little remarkable, if it be true as contended by defendant that the obstructions did not hinder the view of an approaching train, that the engineer and fireman did not discover the plaintiff sooner. It was a moonlight night, and yet they did not discover the presence of the plaintiff until almost on him — within 90 feet of him. From the Han. track to the K. C. track, was 73 feet. The time occupied by plaintiff in passing from the first track to where he discovered the coming train, admitting he was traveling at the rate of three miles per hour, would have been about 11 seconds. This court is now asked by defendant, under the situation and conditions stated, to declare, as a matter of law, that the plaintiff was guilty of contributory negligence in having his attention withdrawn for eleven seconds, as many beatings of the heart, from the south where this train approached and in a' direction somewhat to Ms right. Negligence is always a relative question. It is a question of ordinary care. This is the caution and vigilance which reasonable and prudent men exercise under like circumstances. — Flynn v. Ry. Co., 78 Mo. 202 . Or, as it is aptly expressed in C. & C. C. R. Co. v. Terry ( 8 Ohio St. 581 ), it is “ that degree of care which persons of ordinary prudence are accustomed to employ under the same circumstances, in order to conduct their enterprises to a successful termination.”

We are of the opinion that it is a debatable question, whether ordinarily prudent men would not have pursued the same course the plaintiff adopted “in order to conduct his enterprise to a successful termination. ’ ’ As such it was a question for the jury and not the court.

We had occasion at this term (in Cannon v. Moore, Adm’r; and Brink v. Railroad) to express our views as to the conditions under wMch the court is justified in taking a case from the jury.

We will only supplement these by quoting from the opinion of that eminent jurist, Judge Cooley, in D. & M. Rwy. Co. v. Van Steinberg ( 17 Mich. 120 -1).

" “ When the judge decides that want of due care is not *548 shown, he necessarily fixes in his own mind the standard of ordinary prudence, and, measuring the plaintiff’s conduct by that, turns him out of court upon his opinion of what a reasonably prudent man ought to have done under the circumstances. He thus makes his own opinion of what would generally be regarded as prudent a definite rule of law. It is quite possible that if the same question of prudence were submitted to a jury selected from the different occupations of society, and perhaps better competent to judge of the common opinion, he might find them differing with him as to the ordinary standard of proper care. The next judge trying a similar case may also be of a different opinion, and, because the case is not clear, hold that to be a question of fact, which the first had ruled to be a question of law. While there is any uncertainty, it remains a matter of fact for the consideration of the jury. The difficulty in these cases of negligent injuries is, that it very seldom happens that injuries are repeated under the same circumstances ; and, therefore, no common standard of conduct by prudent men becomes fixed or known. Negligence cannot be conclusively established by a state of facts upon which fair minded men may well differ.”

We feel constrained, on a careful review of the evidence in this case, to say that the trial court should not have taken the case from the jury. Its action in this respect is approved. We have examined the numerous adjudged cases to which counsel have referred us. Every case of this character must rest on its. own peculiar facts.

Y. As this case is to be remanded, we will state that the first instruction given on behalf of the plaintiff should not be repeated in its extent on a further trial. It is faulty in submitting to the jury issues based on the negligence and carelessness of the defendant in handling and running its train of cars,- and in running its said engine and cars over the crossing. Even if such issues were within the terms of the petition, there was not sufficient evidence to support them. '

*549 Instruction number 7 should also be reformed or refused. It is not obvious what meaning a jury might attach to the word “induced.” Nor does the instruction sufficiently connect, in its conclusion, the relation between the imputed act of negligence and the injury. We think the jury was, perhaps, sufficiently advised of the defendant’s duty and liability in this respect by the second instruction. Counsel have submitted infinite objections to and criticisms upon most of the instructions given in the cause, except their own. Many of these criticisms are what might aptly be characterized as the “affectation of precision.” Taken as a whole, with the exceptions above noted, the instructions quite clearly and consistently presented to the jury the practical issues in this case.

The ceaseless declarations of law asked by the defendant in this case, with their repetition of principles already announced by the court, or varying phraseology, with here and there objectionable and ambiguous terms, might have been properly refused by the court in the interest of brevity and directness, and the suppression of an evil which the appellate courts denounce in vain.

For the reasons given touching the instructions numbered 3, 1 and 7, the judgment of the circuit court is reversed, and the cause remanded for further proceeding in conformity with this opinion.

Ellison, J., concurs. Hall, J., concurs in the result.