Lane v. Missouri Pacific Railway Co.

Shebwood, J. Plaintiff, the widow of John H. •Lane, brought this action against defendant company to recover damages for the death of her husband, which was caused by his coming in contact with the engine of [10] a moving train of defendant’s at a point in the town of Leeds where the Raytown public road crosses the track of defendant’s railway. The train at the time of the collision was moving south and Lane was going east. The date was the twenty-ninth of July, 1892, and the hour about 9:45 p. m. This intersection of the lines of the highways occurs practically at right angles, the public road running east and west, the railway north and south, and the ground for at least a quarter of a mile westward from the crossing is substantially on a level with that intersection and the roads which form it, and the same is true of the ground for over one fourth of a mile northward of the Raytown road. Something like two hundred yards north of the crossing, and ■ extending northward along the tracks for a distance of about one hundred yards, a cut begins, which at the deepest point is but slightly over two feet deep. A diagram of the scene of the accident and of the surrounding country is hereto subjoined, and will assist in understanding the situation. At the point of the accident and' for a mile or so northward, the track of the Kansas City, Osceola & Southern Railroad (called by the witnesses the Osceola road), runs parallel to, and about sixty-five feet west of, the Missouri Pacific track. These railroad tracks on the east, and the Raytown road on the south, form an angle in which, at a distance of about one-hundred and fifty feet west of defendant’s track, and something like one hundred feet north of the center of the Raytown road, stood the dwelling house of Renick. Within that angle a meadow stretches northward from that dwelling house for a distance of eight hundred and seventy feet above the crossing, and the meadow extends about one fourth of a mile westward of the Osceola road’s right of way. At the north line of the [11] meadow begins a corn field of equal extent, and adjoining, that on the north was a woodland pasture. Between the railroad tracks mentioned were weeds growing, for a distance of one fourth of a mile, and the testimony tends to show they were, some of them, six or seven feet high, and the corn in the field from eight to ten feet high. The only obstructions to a view of defendant’s track were the dwelling house, the weeds, and the woodland pasture, in the way of a person traveling on the Raytown road, from seeing defendant’s track. And at a point on the Raytown road one hundred and seventy feet west of the west rail of defendant’s track, a person going eastward on that road could, as he made progress toward the crossing, continuously see that track as it stretches straight northward for a distance’of eight hundred feet. There is other testimony on the part of plaintiff to the effect that a person if standing or sitting on a wagon, if traveling on the Raytown road and going eastward on reaching the Osceola road crossing, could readily and plainly see an engine about two hundred to two hundred and fifty yards up the track to the northward. At least four witnesses for plaintiff heard the whistle of the train on the night of the accident, a calm, still night, at the Mason crossing, one mile almost due north of the one where the accident occurred, and also heard the rumbling of the train. And it was shown by actual measurement, as contradistinguished from guesswork that it was eleven feet up from the rails to the lowest point of the headlight of a locomotive, and fifteen feet to its highest point, so that this would seem to readily overcome, especially if a person were on a wagon, any ordinary obstructions of the nature already mentioned. This is true of all the obstructions except Renick’s house, and certainly this could obstruct the vision for only a few feet, and besides there is testi [14] mony to the effect that one hundred yards west of the Baytown crossing, that house would not obstruct the view of defendant’s track. [14] The usual conflict occurred as to whether any signal was given for the Baytown crossing; witnesses for plaintiff claiming either that no signal was given or that they did not hear it, while those for defendant testified positively that such signal was given. No conflict, however, occurred among the witnesses as to the undisputed fact that the signal was given at the Mason crossing, which was distinctly heard by various persons at various points and at distances as great or greater from that crossing than was deceased. No one, it seems, witnessed the accident except the engineer and the deceased. The engineer in testifying stated that the train was running at about thirty miles an hour, and thinks it was something like eighty feet to the crossing when he saw the team which seemed to be in a lope, or running away; it came in contact with the front part and side of the engine, breaking off the number plate, which is fastened in front of the locomotive ; that when the team came within the rays of the headlight, they were within twelve or fifteen feet of the track; that he “just got a vision of them, that was all;” then the collision occurred. It is in evidence also that, when the body of Lane was turned over a few minutes afterwards, it was redolent of whiskey. Deceased was a wood hauler, and frequently hauled wood to Kansas City, and had lived all his life in the vicinity of the fatal occurrence. He was thoroughly conversant with the running of trains in the neighborhood ; that a great many passed that point daily, on defendant’s road, and knew that the passenger train, which struck him, was due at the time. He hauled a load of cord wood to Kansas City that day, had a wood frame on his wagon, with a plank floor in it, and early [15] in the afternoon had passed over the crossing in question, and between 12 and 1 o’clock was two miles on toward his point of destination. Leeds is said to be some eight miles south of Kansas City. About 4 o’clock in the afternoon, Lane was seen in a saloon; at that time he had not sold his wood, but was engaged in throwing dice for the drinks with the bartender, and within fifteen minutes, witness Lane, and the bartender took two drinks of beer each. "Witness remained in the saloon about an hour and says: “I don’t know how many drinks he took before I went in.” “I went on down town and left John Lane there, I don’t know whether they drank any more after I left or not.” According to the testimony of Renick, that a team in an ordinary walk would travel about four to four and one half miles per hour, Lane must have arrived with his load of wood in Kansas City by 2:30 o’clock. Where he was, in the interim between the time of his arrival and the time he was seen in the saloon, or how he was employed, does not appear. He was next seen by Baruch, a German saloon keeper, a little after 6 o’clock, riding on his wagon with his wood unsold, and asked Baruch to buy his wood, and was, in his judgment, “perfectly sober.” Lane having disposed of his load of wood, next appears on his way homeward, a mile northwest of Leeds; this was about (as estimated) a quarter to 9 o’clock and after dark. He was lying down in the wagon; kept still, whether asleep or not witness Ryder could not tell; his horses were going along in a slow walk. The next time Lane was seen was by witness Prater, who with his brother was walking west, as Lane was going east, toward the railroad track, and the point of meeting was between Renick’s saloon (where Prater and his brother had been), two hundred and seventy yards west of the crossing, and the postoffice. This [16] was about 9:35 to 9:40 o’clock. Lane’s horses were traveling in a walk, and he was Vying down on Ms back,- and did not have hold of the lines. Prater thought that Lane, judging from his actions, was either asleep or drunk, The reason the witness fixes the time at that hour, was because he knew the train was due about that time, heard the train whistle about twenty yards before he met Lane, and “noticed the train coming. ” Prater spoke to Lane, and he raised up on his elbow and grunted and mumbled something, or else said, “Hello boys,” and then lay down again. A very short time after this, Lane was met by Brice, Oedarland, and Allen near Renick’s saloon, when Allen spoke to Lane, and the latter, recognizing him, responded. Brice thinks Lane was standing up. Cedarland remembers the incident and says, “I took particular notice there was a train, because my horse was kind a scared.” A little east of the saloon, that is toward the crossing, and nearer the former than the latter, Lane was met again by two others of the fishing party, Coates and Gillie. Coates says: “He was leaning on his side; I think he had his arm around one of the stakes of the wagon, or on the rack. I think he was standing up.” Grillie gives similar testimony and says: “He was standing up holding to the wood rack, to my knowledge.” The last person who saw Lane alive was Adkins, the barber, who was in the door of his shop, one hundred and sixty yards west from the crossing and seventy yards east of the saloon. Adkins could not tell whether Lane was sitting down or standing up, but says: “His head was above the top of the wood frame 5 I did not notice how high it was. He was driving slow. As near as I could tell, he had about two feet of the lines cracking at the horses.” Several photographs will accompany this opinion and tend to illustrate the situation. [0] Taken from center of Osceola track, forty feet south of Raytown road, camera pointing east northeast. Taken from center of Raytown road on the Osceola crossing, camera pointing north. Taken from point twenty steps west of Osceola crossing in center of Raytown road, camera pointing east. Taken from a point on Osceola track about forty feet south of Raytown road, camera pointing north northeast. [Vol. 132] [Vol. 132] [17] The foregoing, it is believed, is a sufficiently full outline of the testimony to answer the purposes of this case. The petition is chiefly bottomed on section 2608, Revised Statutes, 1889, as well as the negligence of defendant’s servants, etc. The answer is a general denial, followed by a plea of contributory negligence, and a general denial for reply. 1. Before proceeding to discuss the merits of the case, a preliminary question must be disposed of. In order to this, however, it is only necessary to say that the additional abstract filed by defendant supplies whatever was lacking in defendant’s original abstract showing that the bill of exceptions was seasonably filed and .the exceptions therein properly saved to the six instructions given at the instance of the plaintiff. 2. The statute already referred to, so far as necessary to quote it, is that: - “And said corporation shall also be liable for all damages which any person may hereafter sustain at such crossing when such bell shall not be rung or such whistle sounded as required by this section: Provided, however, that nothing herein contained shall preclude the corporation sued from showing that the failure to ring such bell or sound such whistle was not the cause of such injury.” It is insisted for defendant, that instruction number 1, given at plaintiff’s instance, which refers to that statute is erroneous. We do not look at it in that light. By it, the jury in brief is told that it was defendant’s servants’ duty when approaching the crossing, “either to ring the bell, etc., or to' sound the whistle, etc. And that if the jury believe that defendant’s servants ran its train, etc., and neither rang the bell, etc., nor sounded the whistle, etc., as above required, and plaintiff’s husband was struck and killed, [18] etc., on account of such failure, etc., either to ring the bell or sound the whistle as above required, then you will find a verdict for plaintiff, unless defendant has proven, etc., that Lane was guilty of negligence which contributed to his death.” Under such an instruction it is difficult to see how the jury could be so misled as to suppose that defendant’s servants would be required to give loth signals of warning when approaching a crossing. 3. Complaint is also made that instruction number 2, of those for plaintiff, is erroneous, because it told the jury “that the burden of proving contributory negligence on the part of John H. Lane, rests on the defendant, and unless the defendant has proven such contributory negligence by a preponderance of the evidence you can not find for the defendant on that ground.” The objection to this instruction is that it leaves out of view evidence which was offered on plaintiff’s part tending to show contributory negligence. We do not sanction this objection. The instruction is well enough so far as it goes, and if defendant desired to cover the point suggested, an in-, struction should have been asked to that effect. 4. It is insisted that evidence should have been admitted, showing Lane to have been a man given to the habit of intoxication. If this evidence was relevant, then it should have been admitted. It is said that: 1 ‘Relevancy is that which conduces to the proof of a pertinent hypothesis; a pertinent hypothesis being one which, if sustained, would logically influence the issue. * * '* a prairie is fired, it is said, by a passing locomotive; the hypothesis of the plaintiff is that the firing was by negligence, and for the plaintiff all the conditions of negligence are relevant. The defense sets up casus, or contributory negligence; and then, on the part of the defense, it is relevant to prove the con [19] ditions of either of the latter hypotheses. Hence, it is relevant to' put in evidence any circumstance which tends to make the proposition at issue either more or-less improbable. Nor is it necessary at once to offer all the circumstances ■ necessary to prove such proposition. The party seeking to prove or disprove the proposition may proceed step by step, offering link by link. "Whatever is a condition, either of the existence or of the nonexistence of a relevant hypothesis, may be thus shown.” 1 Whart., Ev. [3 Ed.], secs. 20, 21, and citations. Numerous cases attest the correctness of this position, and quite a number have been collected in the brief of counsel. The charge of the petition is negligence of defendant in failing to give certain statutory signals and negligence in running and managing the train, and from which resulted the litigated injury. To this ■charge a denial is interposed, as well as a plea of contributory negligence. Any. evidence, therefore, was relevant which tended, even though slightly, to induce belief in the truth of the charges or in the truth of the denial or plea. Thus in Trull v. True, 33 Me. 367, it was held that testimony can not be excluded as irrelevant which would have a tendency,- however remote, to establish the probability of the fact in controversy. Lord Ellenboeough on one occasion remarked that, “the rules of evidence must expand according to the exigencies of society.” 3 Camp. 306. In Ins. Co. v. Weide, 11 Wall. 438, it was ruled in a case of a suit on a policy of insurance against loss of a stock of groceries in process of retail sale, by fire, it is competent to show by witnesses in "the town where the fire occurred, engaged in the same business with the plaintiffs, and whose annual sales were as large, that grocery merchants in that city for the six years [20] prior to the fire had not carried, or had on hand, at any one time, more than one fifth of their annual aggregate sales, and that this was the case on the day the fire occurred. Mr. Justice Davis after adverting with approval to the remark of Lord Ellenbokough, but disclaiming in the case then in hand any innovation upon familiar rules of evidence, observed: “It is well settled that if the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. It would be a narrow rule, and not conducive to the ends of justice, to exclude it on the ground that it did not afford full proof of the nonexistence of the disputed fact. Besides, presumptive evidence proceeds on the theory that the jury can infer the existence of a fact from another fact that is proved, and most usually accompanies it. Many of the affairs of human life are determined in courts of justice in this way * * *■ In the nature of things, the officers of the insurance-company were unable, by any direct proof, to contradict, the testimony of the plaintiffs as to the value of the goods destroyed. * * * As they had no direct evidence to produce bearing on the subject, they offered to prove a fact which, uncontradicted and unexplained, would lead the jury to the conclusion that the plaintiffs had overvalued the property destroyed by fire. It was neither opinion nor hearsay which they tendered to the court, * * * but a matter of fact concerning the business in which the plaintiffs had been employed, which would render it extremely improbable that they had sustained the loss they claimed to have suffered. * * *. “If this state of case could be proved by the united testimony of this class of merchants, it would establish a fact connected with this kind of business, to wit, the [21] uniform relation between tbe stock on hand and the annual sales, from which the existence of another fact could be reasonably inferred, which is, that the business of the plaintiffs rested on the same basis and was governed by the same rule of uniformity. Indeed, so strong would be this inference, that in the absence of any attempt to explain or contradict the evidence, the jury would be justified in adopting the conclusion which it tended to prove. A presumption is an inference as to the existence of a fact not actually known, arising from its usual connection with another 'which is known, and on this principle the jury should have been allowed to consider this evidence.” It is noteworthy that the opinion in the case just cited was delivered by the same judge in Thompson v. Bowie, 4 Wall. 463, wherein it was in effect held that because Bowie gambled at other times when in liquor, was no legal proof that because he was in liquor on another day that he gambled with Steer. The distinction between the two cases, and the reason for the distinction, seem quite obvious. Repeated instances occur in the books where it has been ruled that the intoxication of a person injured is a fitting subject of inquiry in order to determine whether he had been guilty of contributory negligence on the given occasion, and hence his injury was non-actionable. Whart., Neg., secs. 306, 307, 332, 402. In an action against a town for an injury alleged to have been occasioned by a defect in a highway, and the plaintiff, at the time of the accident, was intoxicated ; and the court instructed the jury that if he were so intoxicated as to be incapable of managing and conducting himself and his team with ordinary care and prudence, then he could not be said to be in the use of ordinary care; and if this want of ordinary care contributed in the slightest degree to produce the injury [22] complained of, the plaintiff was not entitled to recover; and it was held that herein there was no error. Cassedy v. Stockbridge, 21 Vt. 391. Cramer brought suit against the city of Burlington for injuries received while on the streets, he being precipitated over a set-off in a sidewalk of defendant, left in a dangerous condition and not sufficiently guarded. The city denied the allegations of the petition, alleged that plaintiff was out late at night in a state of intoxication, and that whatever injuries he sustained resulted from his own carelessness and negligence. It was in evidence that plaintiff on the evening of and before the accident had drunk several glasses of beer. And it was there ruled that, while being abroad in the streets of a city in an intoxicated condition is not negligence as a matter of lato, it is nevertheless a circumstance from which the jury may find the existence of negligence as a matter of fact, and that it is not necessary, after the fact of intoxication has been found, that the. jury should further find, as a result thereof, that the plaintiff became careless and reckless in regard to his safety, to defeat his recovery. With all the care of which he was capable in that condition, he may still have contributed to his own injury. 42 Iowa, 315. And the law is well settled that an action lies against a railway company by a person on one of its trains, which retains in its service a conductor known by the company to possess intemperate habits. . In Railroad v. Books it was claimed that the lower court erred in admitting testimony touching the habits and competency of the conductor of a coal train which ran into a passenger train and caused the injury. On this point Sharswood, J., remarked: “ This assignment of error was not pressed, and properly. If, by direct evidence, it appeared that the conductor was a man of intemperate habits, it would cast upon the de [23] fendants the burthen of proving that he was not intoxicated at the time, and had usedproper care. It is certainly incumbent upon railroad companies to employ none but sober men on their roads. Where a habit of intoxication in a conductor is shown, it raises, in the case of an accident, a presumption of negligence, which stands until it is rebutted.” 57 Pa. St., loc. cit. 343. See, also, Railroad v. Decker, 82 Pa. St. 119; 84 Id. 419; Railroad v. Sullivan, 63 Ill. 293; Railroad v. Gilbert, 46 Mich. 176; Cleghorn v. Railroad, 56 N. Y. 44; Gilman v. Railroad, 13 Allen, 433; Patterson, R’y Accid. Law, 314. On suitable occasions the general character and habits of a horse may be inquired into, and it has been ruled in one instance, on action for damages that the rejection of such evidence of occurrences after the accident was reversible error, notwithstanding evidence of such habits prior to the accident had been freely admitted, Lokd, J., saying: “The question is, not whether the evidence was sufficient to prove the fact in the opinion of the court, but.whether it was evidence proper for the jury to consider, and upon which they might be authorized to find the fact * * * The court should be very slow to say that any evidence which is competent upon a question decided against a party is immaterial, and never unless the whole evidence is presented, and the question of its sufficiency distinctly raised.” Maggi v. Cutts, 123 Mass., loc. cit. 540. In states where criminal prosecutions occur because of habitual drunkenness, it has been decided that proof that one has been drunk from five to seven times on as many different days within a period of between three or four months, with no other evidence of his condition at other times, will justify a jury in convicting him as a common or habitual drunkard, and that he is not [24] entitled to a specific ruling and instruction that he is affirmatively to be presumed sober, on days as to which no evidence is offered. Com. v. McNamee, 112 Mass. 285. These quotations serve to show, and, it seems, very clearly, that evidence tending to show intoxication in a single instance may go to the jury and justify the inference by them of a want of ordinary care, or negligence, and that the habit of intoxication when once proven to exist is presumed to continue, and raises in the case of an accident a presumption of negligence which stands until rebutted. Inasmuch as these things must be taken as conceded, it would seem to leave no room to doubt that evidence ought to have been admitted in the case at bar to show the habit of Lane in the particular mentioned. Indeed, it may be said that there was some evidence indicating his intoxication at the time of the fatal' occurrence. But, however this may be, if evidence of the intemperate habits of a conductor of a railroad company may be gone into, in order to charge his employer with his negligence in case of an-accident, though no intoxication be shown on that particular'' occasion, it is difficult to see why in fairness and upon principle the like rule should not prevail, and similar evidence be admitted, and similar consequences follow, where a railroad company pleads the contributory negligence of one injured by its train. 5. Putting aside, however, all other matters previously discussed, the heart of this cause lies in response to the question, does the evidence support the verdict? We are not of opinion that it does, and for these reasons: The testimony has been heretofore sufficiently set forth, and it shows with unmistakable clearness that if Lane had listened he could have heard the train; if he [25] had looked he could have seen it. There is no sort of question about this, even if we take the lowest estimate at which the headlight of a coming locomotive could be first seen, to wit, about sixty yards, by a person standing on the ground thirty yards west of the Osceola track, which would be some one hundred and fifty-five feet west of defendant’s track, and place of the accident. If Lane was at that point, and traveling at four miles an hour he would go over ground at the rate of not quite six feet per second, but the train at thirty miles per hour would travel at the rate of forty-four feet per second. So that the train first coming into view at a distance of only sixty yards, or one hundred and eighty feet, from the crossing, would reach that point in a slight, fraction over four seconds, but meanwhile Lane would not have gone over but twenty-four feet; this would have left him one hundred and thirty-one feet to travel before he could get an opportunity to reach the crossing and collide with the train. But if we take the uncontradicted testimony of Prater, who met Lane west of the saloon, the saloon being two hundred and seventy yards west of the crossing, and had noticed the train coming twenty yards before he met Lane, and if we take the unchallenged testimony of Cedarland, whose horse was frightened by the approaching train, and who met Lane just about opposite the saloon, then the facts are still more unfavorable to the theory and contention of the plaintiff. And if we increase the distance at which an approaching headlight could be seen, this only increases the difficulty of maintaining plaintiff’s position, because it would have afforded a larger opportunity to Lane to have seen the approaching train and avoided the danger of attempting to cross the track. And, in this connection, it must not be forgotten that careful measurements were taken by Grinder, the county surveyor, of the distance to the south line of [26] the cornfield, the depths of the cuts and the points at which they began, and other measurements, and other careful examinations. . Such methods of patient ascertainment of the physical surroundings are scarcely to be brought into serious comparison with estimates made by men who after night stood one hundred and fifty, to two hundred, feet west of the track, looking at the headlight of the locomotive coming straight toward them, guessed how far distant it was when it first came in sight. That these were guesses is shown by the unanswerable fact that they vary in distance in the particular mentioned from sixty to one hundred, one hundred andfifty, two hundred, and two hundred and fifty yards. And then it should be borne in mind that Lane, when standing up in the wagon, had an altitude of vision about nine' feet above the earth’s surface. When to this is added for consideration the fact that the top of the headlight by actual measurement was fifteen feet above the rails, the conjunction in effect of these two altitudes was sufficient to overcome the deepest cut or the highest weeds or embankment that any of the witnesses have spoken of, certainly so when the train reached a point some eight hundred feet northward of the crossing. Besides, it is not to be overlooked that Lane was a resident of the vicinity, perfectly conversant with the running of the trains and knew that the train was then due. Every dictate of prudence, every consideration of personal safety, therefore, imperatively demanded that he look and that he listen. The result, in the light of the testimony surrounding his unfortunate death, satisfies us that he neglected the most obvious precautions, and that in consequence of such neglect,, the defense of contributory negligence was fully made out. In Stepp v. Railroad, 85 Mo. 229, Black, J., deliv [27] ering the opinion of the court, said: “It has been repeatedly held by this court that it is the duty of one crossing a railroad track, to look and listen for an approaching train, and thus get all the information his eyes and ears will afford him, and if he fails to do this and thereby contributes to the injury, he must suffer the consequences, even though the company may have been derelict in the performance of its duty in giving the signals.” To like effect, see Hixson v. Railroad, 80 Mo. 340; Kelly v. Railroad, 88 Mo. 534; Lenix v. Railroad, 76 Mo. 86; Purl v. Railroad, 72 Mo. 168; Henze v. Railroad, 71 Mo. 636; Harlan v. Railroad, 64 Mo. 480; Zimmerman v. Railroad, 71 Mo. 476; Kelley v. Railroad, 75 Mo. 138. It is unnecessary to pursue this subject further, since it has so often before and so recently received discussion in the cases of Hayden v. Railroad, 124 Mo. 566, and Kelsay v. Railroad, 129 Mo. 362, where, in circumstances substantially identical with the present case, a like conclusion was reached. In the latter case, Maceaelane, J., speaking as the organ of the court, approvingly makes the following quotation: “It is simply and flatly impossible that one can stop, look, and listen for an approaching train that is in plain view and close at hand and be unable to see or hear it, if he possesses the senses of sight and hearing. It seems, therefore, necessary to advance one step in the application of the doctrine of legal presumption, and to lay it down as a rule that one who is struck by a moving train which was plainly visible from the point he occupied when it became his duty to stop, look, and listen, must be conclusively presumed to have disregarded that rule of law and of common prudence, and to have gone negligently into an obvious danger. A line of well considered cases [28] leads fairly up to this conclusion.” Myers v. Railroad, 24 Atl. Rep. (Pa.) 747. 6. Something has been said about7 the team running away at the time they were struck by the locomotive. There is nothing to show that this result, if true, was brought about by any act or’ omission of defendant’s, and in the absence of such evidence we shall not on a mere surmise or conjecture, hold defendant responsible therefor. The corollary from the foregoing remarks is the reversal of the judgment, and it is so ordered, Babclay, J., dissenting, in the remainder of the opinion. The other judges concur except in paragraph 4, in which no one concurs.