Hook v. Missouri Pacific Railway Co.

ROBINSON, J.

This is an action by James Hook to recover damages for the death of his son, Henry Hook, occasioned -by the alleged negligence of defendant, the Missouri Pacific Railway Company.

The case was tried by a jury and resulted in a verdict and judgment in favor of plaintiff for $5,000, and is here on defendant’s appeal.

This opinion is on defendant’s motion for a rehearing in this court, after the judgment of the trial court had been affirmed.

The petition filed by plaintiff is in two counts, alike in all respects, except that in the first count it is alleged that the crossing on which plaintiff and his sons were struck by defendant’s train, is a public road or street in the city of Lexington, while in the second count, the crossing is described as being on a road, used by the public as such, and kept in repair by public authority and treated by defendant railway company as a public road for many years.

The negligence charged in the first count is that defendant-failed and neglected to sound its whistle, or ring the bell on its engine, as required by statute, when approaching the crossing at which occurred the injury complained of. The negligence charged in the second count is the failure alone to sound the whistle.

The answer is a general denial, coupled with a plea of contributory negligence on the part- of the plaintiff.

No question of pleading is involved in the case, nor are the legal propositions announced ,by the trial court, in its instructions to the jury, assailed as erroneous, if under the evidence the question of plaintiff’s alleged contributory negligence could be said to be for the determination of the jury. The propriety of the action of the trial court in submitting the case to the jury, upon the facts before it, is the sole question for consideration on this appeal, and its determination involves alone the consideration of plaintiff’s duty and obligation in approaching the crossing with the team which he and his two sons were driving.

The evidence in this case shows that while plaintiff and his two sons, on the morning of June 19, 1896, were driving upon one of the public streets in the outskirts of the city of Lexington in this State, called Mill street, where the same crossed the tracks of the defendant’s railroad, the wagon in which they were riding was run into by a train upon defendant’s road, and all the parties therein were thrown from it, and the plaintiff’s minor son, Henry Hook, was killed; that the road or street upon which they were traveling crossed the tracks of defendant’s railroad at grade, and almost at right angles; that at the intersection of the railroad with Mill street, upon which plaintiff and his sons were traveling at the time of the accident, and for several hundred feet to the east of the crossing, the railroad runs practically east and west, and that on the north side of the railroad track and to the east of Mill street, there is a tall hill, upon the sides of which weeds and sunflowers had grown so thick as to greatly obstruct the view of an approaching train from the east, to one traveling south upon Mill street; that the south slope of this hill, which faces the railroad track, stands at an angle of about forty-five degrees, and its base comes up to within eight feet of the north end of the ties on defendant’s railroad, and that this eight-foot space from the foot of the hill to the railroad ties, is a smooth and even surface, used as a path, and is kept comparatively free and clear of weeds and growth of all kinds. Erom the public road, upon which plaintiff was driving, the hill also slopes back to the east at about the same angle as it does from the railroad.

As said, the time of the accident was June 19, 1890, at about eight o’clock in the forenoon, while plaintiff with his two sons were going, in a two-horse wagon, from their home to a sand bank south of the city of Lexington for a load of sand, and in the course of their route they were required to cross the track of defendant’s railroad where the accident occurred. The day was clear and bright and there was nothing unusual in the surroundings or conditions at the crossings, at the time of or just preceding the accident, to disturb plaintiff or to distract his attention; that plaintiff was in the full possession of all his senses, and as he said, so far as he knew, his sense of sight and hearing was perfect; that save and except the noise made by plaintiff’s horses and wagon, and that of the team driven by the witness Lewis, twenty-five or fifty feet behind plaintiff, and the sounds and shouts of warning of an old negro woman who stood about eighty feet south of the crossing calling to plaintiff to look out, a train was coming, and the rumbling noise of the approaching train that ran into plaintiff, all was quiet in the vicinity of the crossing.

Plaintiff’s position at the time of the accident was on an elevated spring seat, which stood about six feet high from the ground, fastened to the side-boards of the wagon in which he and his two sons were riding. The horses driven by him were perfectly gentle, and thoroughly accustomed to the sight and noise of trains, and would not become frightened at the rapid passing of a moving train. Plaintiff testifies that he was thoroughly familiar with the crossing and its surroundings and of the time the regular trains on defendant’s road were to pass this particular crossing. In fact, one of the excuses given for his going upon the crossing as he did, was that he had just examined his watch, when about thirty-five feet south of the crossing, and finding that it was then two or three minutes past the regular time of the train at that crossing, according to his watch, and having heard a faint whistle, as he says, in the direction of Myrick, a station west of this crossing a half mile or more, he concluded it was the whistle of the train that nad just passed the crossing giving its signal for Myrick, where it then' would be about due. The speed of the train at the time it struck plaintiff’s wagon was estimated to be twenty-five or thirty miles an hour. '

Plaintiff also stated that at the time he looked at his watch, he stopped his team (to try to ascertain the whereabouts of defendant’s train upon its road), but that he could neither see nor hear the train approach on account of the hill to his left that obstructed both the view and noise of the train, and that from the time and place when and where he first stopped his team until the feet of his horses were between the railroad tracks, although driving in a slow walk, and constantly looking for a train, he was unable to see it until he was thus situated, and the train was then within ten or twelve feet of the crossing.

Conceding that the finding of the jury upon the question of defendant’s alleged negligence in failing to ring the bell or sound the whistle upon the engine of its train as it approached the crossing at which occurred the accident complained of, is conclusive upon this court, though based entirely upon what might properly be called negative testimony, and opposed to what seems to have been the great weight of positive testimony to the contrary, given by witnesses called both by plaintiff and defendant, the question that presents itself now is, whether, on the issues of plaintiff’s alleged contributory negligence, the trial court should not have declared, as a matter of law, that he was not entitled to recover upon his own statement of the facts, notwithstanding his testimony on the question of his inability to see the approaching train upon defendant’s track until it was within ten or twelve feet of the crossing from any point on the highway upon which he was driving, until his team had actually gotten upon the crossing. A statement, however, which from the very nature of the situation and surroundings as detailed by the plaintiff and all the witnesses, could not be true, and which is in utter disregard of all the unquestioned physical facts in the case.

In the opinion of the writer, the mistake was made in this case when the trial court permitted the jury to consider the plaintiff’s testimony on the question of his inability to see the approach of the train that struck 'his team until it was immediately upon him, that manifestly was in clear view for a distance of two or three hundred feet east of the crossing from any point on the public road for twenty-five or thirty feet north of the tracks if he had looked in the direction of the approaching train. The court will treat as unsaid by a witness that which in the very nature of things could not be as said. Though this court will not undertake to measure the probative force of the conflicting testimony of witnesses upon controverted issues of facts, but under our system of practice leave those matters where the trial court has left them, to the juries for determination, still it is not so deaf to the voice of nature or so blind to the law of physics that every utterance of a witness, in derogation of those laws, will be treated as testimony of probative value for the consideration of the jury simply because of its utterance. From the very nature of the crossing and its surroundings, as detailed by all the witnesses called by both plaintiff and defendant, and the plaintiff himself, it of necessity could not be true that plaintiff, in the full possession of his sense of sight and hearing, could not have seen or heard the train that was approaching the crossing, on defendant’s tracks, until his team had reached the crossing and stepped upon it, had he stopped, looked and listened for the approach of a train, at any point on the public highway upon which he was traveling, between the north rail of the track and twenty-five or thirty feet north of the crossing or without stopping his team had he looked in the direction from which the train was coming. When to look is to see, the mere utterance that one did look and could not see, will be disregarded as testimony by the court (Kelsay v. Ry. Co., 129 Mo. 362; Hayden v. Ry. Co., 124 Mo. 566), and no additional value is to be given to the utterance because of the fact that a jury, under the direction of the trial court, has predicated a finding thereon. As the law does not permit a witness to blind his eyes to the sight of an approaching train in full view of a crossing he is to pass, neither will the eye of the law become blinded to the true situation of the case merely because of the absurd statement of a witness or witnesses, “I looked and could not see,” or the jury’s indorsement of it by a finding predicated thereon, when to look was to see.

It will not be the effort, in this opinion, to try to work out the problem of just how far up or down defendant’s railway tracks an object the height and size of an engine might and can be seen from a point fifteen, twenty, twenty-five or any other number of feet north of its crossing on the public road upon which plaintiff was driving, by one seated in a wagon with his head seven or eight feet above the level of the crossing (regardless of the hill with its weeds and undergrowth, to the north of the railroad and east of the public road), or to call to our aid the photographer’s view of the situation and surroundings with the surveyor’s notes and measurements and plats of the ground offered in evidence in the case, and which appear in the record before us, to establish and fortify our calculations, but independent of the question of the exact distance of view, up or down the track from any given point on the highway north of the crossing, a train may be seen, we all must know from common observation and experience, before a witness has testified upon the subject, as we still know after being told by a witness to the contrary, that upon approaching a railroad track, along the side of which for eight feet from the end of the ties there is a perfectly -unobstructed view of the track, if one but look, an approaching train can be seen before it and the traveler, upon the public highway crossing the tracks at right angles, comes in actual collision at the crossing. The situation itself speaks, and will not be silenced by an inconsistent utterance of a witness to the contrary, and to this visible witness the court can not blind its eyes.

The much-talked-of hill to the north of defendant’s tracks and to the east of the highway upon which plaintiff was traveling at the time of the accident so often mentioned in plaintiff’s testimony and brief, as an obstruction to his view, would be only of concern if the question of how far up the track the train could be seen by one standing twenty-five or thirty feet north of the crossing on the public highway, was material to the determination of this case; but as plaintiff’s duty to keep a lookout for trains upon defendant’s road was continuous until the crossing was reached and passed, the fact that the hill to the north of defendant’s track offered an obstruction to plaintiff’s view up the tracks while he was thirty-five feet north of the crossing, when he stopped and looked at his watch, is no answer to the charge of negligence against plaintiff that he did not look and observe the approaching train on defendant’s road, as some nearer point to the track was reached by him, where the view up the track was unobstructed, or that he did not stop his team, that the train’s proximity to the crossing might be ascertained through the sense of hearing.

This hill, in all probability, furnished the foundation upon which was constructed, under the able engineering of the learned counsel for respondent, the jury’s verdict; but as plaintiff’s duty was to look out for an approaching train on defendant’s road, not from, the ■ point where the hill to his left was an obstruction to his view up the track, and of which‘he was perfectly familiar before he stopped to make his observation, but when he had reached a point beyond the view or point of the hill when he could see up the track, be that point one, ten, twenty or thirty feet north of the crossing, the question as to the situation of the hill could serve no other purpose in the case than it was used for, to obscure the real issue in the case.

If we suppose, now, that the testimony of plaintiff be taken as a literal truth, that the train on defendant’s road could not be seen approaching the Hoffman crossing, where occurred the accident in question, by one driving a team upon the highway until the feet of the horses of the team were upon the track of the railroad, what judgment does the law pass upon the conduct of one like plaintiff, who, acquainted with the crossing and the time trains are due to pass it in the usual course of the road’s business, actually drives upon the track of the railroad without stopping his team at some convenient distance of the fatal crossing that he might listen to ascertain (when the sense of sight is unavailing) if a train is approaching the crossing ? Without some act or thing done by defendant or some one, to induce plaintiff as a reasonably prudent man to believe that the crossing could be made in safety, without the necessity of the exercise of those precautionary requirements usually exercised at such places, the law says such conduct is negligence and precludes a recovery for resulting injuries sustained in consequence thereof. The jury from that point of view still had no office to perform. Plaintiff’s conduct on that occasion, according to his own testimony, is condemned by the law, and the court should have pronounced the law’s judgment thereon, and not have suffered the law to be condemned by an adverse finding of a jury upon admitted facts.

When one can not see a known threatened danger, as a fast-moving train approaching a crossing, that is desired to be passed by the traveler, on account of some intervening obstruction cutting off his view, the demand of common prudence is more imperative than ever that he call into requisition some other sense or faculty that may aid him in the acquisition of the desired information.

If for any reason the sense of sight was unavailing to plaintiff to ascertain whether the crossing of defendant’s tracks could be made at that time in safety, then the sense of hearing should have been given the fullest opportunity, and his team should have been stopped at some safe distance of the crossing that the train’s whereabouts might have been ascertained through the exercise of that sense. It is no answer to the charge of negligence on the part of plaintiff in this case, according to his version of the facts, to say, “I looked but could not see the train until my horses had gotten upon the tracks.” If by looking a train could not be seen by plaintiff on defendant’s tracks, as he says, until the danger from its approach was inevitable (where- the facts of the situation, as in this case, were as familiar to plaintiff before as after the accident), then looking for the train was both an unnecessary and a useless act, and instructions predicated upon the existence or non-existence of that fact were wholly unnecessary; and that plaintiff could not see, and did not see, the train approaching that collided with his team, furnishes no excuse for his act in going upon the crossing at the time he did. However viewed, plaintiff’s conduct in the premises showed a want of precaution to avoid a known danger, for the failure to exercise which coupled with that of defendant, the injury was occasioned.

Though agreeing with the learned author of the opinion in this case, when it was first heard in Division One of the court, and afterwards affirmed In Banc, “that there is no prescribed act to be performed, to meet the law’s requirement of duty of one approaching a railroad crossing with the intention of passing over it, applicable to every circumstance and condition,” I can not agree with the conclusions reached therefrom (as applied to the facts in this case) “that when the view of the railroad is so obstructed as to render it difficult or impossible to see an approaching train, the question of 'whether the traveler was wanting in due care is one for the jury to determine.”

Because of a want of a prescribed act to be performed, under all circumstances, by the traveler, approaching a railroad crossing, he is none the less bound to observe those standards of precaution which the law has declared applicable to the situation. If the standard is to look where sight is availing to give the needed information, then the traveler must loo]?, and failing to do so, this, as all courts have declared, is negligence. If the sense of sight is unavailing to give the needed information, on account of the situation and surroundings, then the law has fixed another standard by which the conduct of the traveler must be measured. He must exercise the sense of hearing; if need be, he must stop and listen to ascertain if a train is approaching the crossing sufficiently near to interfere with his passing over it in safety, and if he fails to exercise that precaution (when through the sense of hearing he might have ascertained the whereabouts of the train) and is injured, the law pronounces its condemnation on such conduct; and so on, one must exercise one or all of his faculties as the situation demands, to avert a known or to-be-apprehended danger, and because the traveler is prevented from the exercise of one of his senses or faculties, on account of some intervening cause or obstacle, over which he has no control, that does not, make the question of negligence arising from the non-exercise of his other senses or faculties less a question of law for the court or more a matter of fact for the determination of the jury. And as said before, when the standard of duty of the traveler approaching a railroad crossing is fixed, as that he must stop, look and listen for the approach of a train, and he can by stopping see or hear an approaching train, before attempting to pass the crossing, the only question for a jury under such circumstances and in the absence of a showing that the railroad company or its servants had done some act or thing to induce the traveler, as a reasonably prudent man, to believe a train would not pass the crossing before he could pass over it in safety, is to ascertain and determine whether the traveler had performed that duty, and where he is shown according to his own testimony not to have done so, the jury have no office to perform, and the court has but to pass the law’s judgment upon the fact or facts.

In the same opinion by Yalliant, J., is found the following: “In the case at bar, there was no space, according to the plaintiff’s testimony, between the obstruction and the track where he could have sat on his wagon and seen the train coming from the east; the only way for him to have obtained a view of the track eastward would have been to leave his wagon and go forward, on foot, close to the track. Before we could declare as a proposition of law that the plaintiff was guilty of contributory negligence under these circumstances, we would have to say not only that in- our opinion ordinary care demanded that he should have left his wagon and gone forward on foot as close to the track as might be necessary to enable him to see, but also that that course was so manifestly the only one that an ordinarily prudent man would have taken, that reasonable minds could not differ about it. But that can not be said.”

Why ordinary care did not demand that plaintiff “should have left his wagon and go forward, on foot, as close to the track as might be necessary to enable him to see,” we are at a loss to conjecture, if it is truej without so acting he could not ascertain the whereabouts of the train on the track before going upon the dangerous and fatal crossing. ■ If to stop, look and listen is a reasonable requirement of the traveler that he might acquire information to avert a threatened injury to himself at a railroad crossing, as well as possible damage and injury to those in charge of and riding upon trains that are constantly making these crossings, the failure of performing that requirement by the traveler is certainly not excused from the simple fact that it may be attended with some inconvenience, such as getting out of one’s wagon and going forward a few feet to the head of his horses. If the situation at the crossing was such that the plaintiff could not see up the tracks of defendant’s road, from his position in his wagon on the highway, until he actually drove upon the crossing, would not common prudence dictate that he should not have gone upon the dangerous crossing until by some other means or in some other way, the condition of the track near the crossing, as to trains upon it, might be ascertained, before the crossing is attempted? Or, is it to be announced as a legal proposition applicable to all cases of this character, that where one injured at a crossing, can not inform himself or herself of the train’s proximity thereto, through the sense of sight, on account of some known permanent obstruction along the side of the roadway closing out the view up the railroad tracks, or where the information is inconvenient of ascertainment through the sense of sight — then the requirement that one stop and listen, is also superseded, and the matter of plaintiff’s conduct at the crossing became one solely for the determination of the jury, regardless of the question whether the injured traveler tried to inform himself through the sense of hearing or not?

To my mind the fact that the plaintiff in this case, testified, and still asserts through, brief of counsel, that he could not see the train’s approach to the fatal crossing from his seat in the wagon, until the feet of his horses were upon the track, is a reason most urgent and imperative why he should have stopped his team, before that dangerous point was reached, left his wagon and gone forward close enough to the track to have had a view of it, or, that at least, he should have complied with the law’s other demand, inspired by the dictates of the commonest prudence, stopped his team near to the crossing that the whereabouts of the train might have been ascertained through the sense of hearing. The inability to use the sense of sight, or its non-use on account of inconvenience, is no excuse for the failure to use the sense of hearing, or for refusing to place one’s self in a position that the fullest opportunity of securing the needed information be afforded.

Without attempting to analyze or criticize or harmonize the various rulings of this court, in a line of personal injury cases growing out of collisions at railroad crossings, cited by appellant, wherein the court has declared as a matter of law the plaintiff’s conduct negligent, with that other line of cases cited by respondent, wherein the question of plaintiff’s alleged contributory negligence has been left to the determination of the jury as an issue of fact, it may be said that in both lines of cases the court, at all times, has recognized these general propositions, however they might have been applied to the particular facts of any given case, that a railroad track is of itself a warning of danger; that the traveler upon the public highway who attempts to cross it must act with care, proportionate to the known or to-be-apprehended danger of the situation, and that the driving or walking upon a railroad crossing, in front of a fast moving train, without looking or listening to ascertain its proximity thereto, is negligence per se, unless induced by the conduct of the agent of the railroad company, to believe that lie may pass the crossing in safety without the necessity of the exercise of those precautionary acts, and that when to look is to see and when to listen is to hear, the law will presume that the traveler injured at a crossing by an approaching train, either did not not look or listen for the train’s approach, or that if he saw or heard the train, that he did not heed the warning, and that the failure of the railroad company to give the statutory signal on approaching a crossing does not excuse or in anywise relieve the traveler attempting to pass same, from the care and vigilance otherwise due from him, to look and listen for approaching trains before going upon a dangerous crossing.

Yiewed in the light of these general propositions and tested by the rules of practice applicable to suits for personal injury, if the plaintiff here did not make out a case of negligence on his part contributing to the injury complained of, upon which the court alone should have acted, without the aid cf a jury, then we have failed to see aright the facts or to apprehend the situation, as detailed from the mouths of the witnesses, as brought out by photographic representations, and as tested and approved by surveyor’s notes and measurements. Upon the plaintiff’s own testimony, however, from which alone the propriety of the action of the trial court in submitting this case to the jury is to be considered, stated again briefly, we have what ? A man in the full possession of all his faculties, on the morning of a bright day, attempting to pass a railroad' crossing, of which he is perfectly familiar as to all its surroundings, within two or three minutes, as indicated by an examination of his watch, of the time a regular train was due to make that crossing, without stopping to look or listen to ascertain whether a train was approaching the crossing, within a distance to make his attempt to cross unsafe, or otherwise, except as it may be said he stopped at a point on the highway, about tbirty-five feet from the crossing, where according to his own statement he knew he could not see a train approaching until it got within ten or twelve feet of the crossing, on account of a high hill, covered with weeds and sunflowers, that lay just north of the railroad track and to the left or east of the highway upon which he was driving, that obstructed both his view and hearing of the train; and if the court is to disregard all the conceded physical facts of the situation, and consider plaintiff’s testimony, as it was uttered, then we have the plaintiff driving from that point, with the view of the approaching train up the railroad track still obstructed, so that it could not be seen by him in the wagon, although constantly looking for it, until he had driven his horses upon the track, and until the train got within ten or twelve feet of the crossing, and yet not stopping his team, to listen or to take some other precautionary measure to ■ ascertain the train’s whereabouts upon the road with reference to the crossing he was intending to pass, and that, too, without any act or tiling done by the railroad company or its employee to induce plaintiff to believe that the train, then about due to pass the crossing, had done so, or that plaintiff would have time to make the crossing before the train in the usual course of the business for the road would reach there.

If such conduct on the part of the plaintiff, according to his own statement of the facts, and however those facts may be considered, was not negligence per se, but only evidence of it, from which the jury had the right to determine negligence or no negligence, according to fancy, then the instruction given in behalf of defendant herein, to the effect that if the jury believe from the evidence that plaintiff did not stop, look and listen to ascertain if a train was at that time approaching the crossing in question, before driving upon it, he was not entitled to recover, should not have been given.

If, however, the rule of conduct, or the legal requirement of duty announced in defendant’s instruction was right, that the plaintiff should have stopped, looked and listened for the approach of a train upon defendant’s road before driving upon the crossing in question, then, according to his own testimony, that legal duty was not performed. To stop, where one can not see or hear a train, on account of a known intervening obstruction, by one on whom the duty to stop, look and listen, to ascertain the train’s proximity to a crossing before entering upon it, is imposed, is not merely the imperfect performance of a duty imposed by law upon the traveler upon the highway, but it is a complete non-compliance of that duty, as if no stop had been made, and as if no excuse was offered for it, and to such facts when shown by the plaintiff, the trial court should have applied the legal propositions announced in its instructions to the jury. The instructions asked by defendant at the close of plaintiff’s testimony, and again at the close of all the testimony, that plaintiff was not entitled to recover, upon his own showing of the facts and upon all the facts of the case, should have been given.

Brace and Gantt, JJ., concur with Vallianí, J., in a separate opinion, that the judgment of the circuit court should be affirmed. Burgess, O. J., is of the opinion that the judgment-should be reversed and the cause remanded for a new trial. Sherwood and Marshall, JJ., hold with Robinson, J., in the foregoing opinion, that the case should be reversed simply; but in order that the case may be disposed of, Sherwood, Marshall and Robinson, JJ., will concur with Burgess, G. J., that the case may also be remanded for a new trial, and it is so ordered.