Lenix v. Missouri Pacific Railway Co.

Sherwood, C. J. Action for damages for injuries re ceived by plaintiff' from the cars of defendant. We discover no ground whatever for the recovery which plaintiff obtained in the trial court. ' The concession may be made notwithstanding the positive testimony to the contrary, that the defendant failed to give the usual signals before reaching the street crossing, which was some sixty or seventy feet east of the locality of the accident, and still the undisputed facts of the plaintiff’s own negligence, directly contributing to the injury he suffered, must exempt the defendant company from any legal liability and preclude him from any recovery. He had been engaged on railroads for some eight years, and in that capacity for some four years in the vicinity of the accident, and consequently was thoroughly aware of the dangers incident to this particular locality, as he himself has testified. He sprang from a train of moving cars on the track of the North Missouri Railway, then moved northward across the space between the track of that company and that of the defendant, a space of eight or ten feet, then immediately faced about south looking toward the train he had left, when in “ a very few seconds” after springing from the train and assuming the position mentioned, he was struck on the hip by one of the passing [91] and western bound trains of tbe defendant, as it is alleged, which passed on the north of him. The night was very dark and the wind blowing very hard, but the train approaching on defendant’s road from the east could have been seen, and was seen by one of plaintiff’s witnesses, 300 or 400 feet distant, and was heard by another one of plaintiff’s witnesses as it came over the crossing-frogs, who saw it just the other side (east) of the crossing. Another witness for plaintiff' testified, that when on the Eort Scott Railway track, which crosses that of the defendant, and when 100 feet north of the crossing, he saw defendant’s train cross his track 200 yards to the east of him. It is very plain, therefore, that plaintiff’s injury is the result of his own gross carelessness and directly attributable thereto. The duty of one who goes upon a railroad track even where there is a street crossing, as is not the case here, has been so often defined that it grows monotonous to be continually reiterating the same principle. He must use his eyes and his ears ; he must look and listen; and if he fails to observe these most obvious dictates of prudence, when approaching such dangerous machinery as a moving railroad train, he has no room for just complaint if he suffers injury solely because of his neglect to use such reasonable and prudent precautions, although the railway company has been remiss in its duty in respect to giving the customary signals. And it is the duty of the court when the facts constituting direct contributory negligence are undisputed, to declare to the jury the inference which the law draws from the facts, which inference bars the plaintiff of any recovery. Powell’s case, ante, p. 80. Therefore, judgment reversed. All concur.