Moberly v. Kansas City, St. J. & C. B. Ry. Co.

• Decision Date: 04 May 1885
• Parties: JOHN R. MOBERLY, Respondent, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILWAY CO., Appellant.
• Court: Kansas Court of Appeals

17 Mo.App. 518

JOHN R. MOBERLY, Respondent, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILWAY CO., Appellant.

Court of Appeals of Missouri, Kansas City.

May 4, 1885

APPEAL from Buchanan Circuit Court, HON. B. J. COSTEEL, Special Judge.

Reversed and remanded with directions.

Statement of case by the court.

This is an action to recover damages for injuries done by a collision with the defendant's train of cars at a public road crossing. The petition charged, substantially, that the defendant is a railroad corporation under the laws of this state, and as such was operating its road through the county of Buchanan, that on the 8th day of December, 1880, while the plaintiff was driving a two horse team, attached to a wagon across defendant's road at a public road crossing defendant negligently collided with said team, demolishing the wagon, injuring the horses, and crippling the plaintiff. The negligence charged against the defendant may be summarized as follows: First, in failing to provide and maintain a safe and sufficient highway crossing at the point where its road intersected the public highway, and failing to erect and maintain sufficient warning notice of the approaching trains; second, in negligently permitting trees brush, weeds, vines and rubbish to grow, accumulate and remain upon the road-bed and right of way of defendant, so as to obstruct the view of passing trains by persons crossing at said point, and the view of persons or teams near said point from the cab or locomotive approaching said point from the south; third, failure to ring the bell or sound the whistle at a distance of eighty rods from said crossing, or at any distance therefrom, and failing to keep a sufficient lookout for persons about said crossing; and fourth, running said train at the time at a dangerous and unusual rate of speed.

The petition prayed judgment for ten thousand dollars.

The answer after tendering the general issue, pleaded that the damages and injuries, if any, sustained by the plaintiff were on account of his own negligence.

On a trial had before a jury the plaintiff was awarded a verdict for two thousand dollars, from which defendant prosecutes this appeal.

The geographical situation of the point of injury was as follows The Han. & St. Jo. R. R. Co., and the defendant's road, designated as the " K. C." road ran parallel, their general direction being from north west to south east. The distance between the roads at the crossing in question was about 33 feet. The public road crossed these two railroad tracks in a direction from north west to south east at such an angle that the distance along the highway between the two tracks is about seventy three feet. The railroad tracks at this intersection ran on embankments that were higher than the former level of the public highway, so that the highway had been elevated on embankments between the two railroads from two and a half to three feet high, and wide enough to admit one wagon to pass freely. Dirt had been taken from either side of these embankments leaving holes along there. This highway was frozen and somewhat slippery from a " skift" of snow on it at the time. There was no macadam nor gravel at this crossing of the railroad track. The highway after crossing the K. C. road, instead of going off perpendicularly, had to turn immediately south along the railroad track for several feet and so close to it that a passing train would likely strike the wheels of a passing vehicle. This abrupt turn at this point was necessitated, because immediately in front of this crossing was a hole, as if the earth had been dugout for purposes of embankment somewhere, so that a wagon was in danger of accident unless it turned directly down the railroad track as suggested. The plaintiff approached this crossing, according to his testimony, after 9 o'clock, P. M. It was rather a cold, moonlight night, He approached from the west side. On that side was a warning sign board, marked: " Look out for the cars." This stood near the Han. & St. Jo. R. R., and was at the base of the incline starting up to the railroad track. The evidence tended to show that this was the most favorable point for a person approaching these crossings to stop and take observations to ascertain whether any train was approaching on either of said roads. In the direction from which defendant's train approached this night a person standing under the sign board could see it as far as the whistling post or further, which the evidence showed was about one thousand feet from the crossing. Between that point and the crossing, the railroads made a curve towards the west. The next best point of seeing trains approaching from the south was on the H. & St. J. track, and the opportunities for so observing diminished as one went east, on account of this curve, and brush, weeds, etc., on the right of way of the tracks. The plaintiff's evidence tended to show that trees, brush, weeds, and vines, were so thick that the view was cut off so that one could not see an approaching train from the south on defendant's road for over 250 yards, and perhaps more.

He testified that he did stop, just as his wagon stood under the sign board; that he raised his cap from his ears and looked in every direction for approaching trains, that he neither saw one nor heard the noise of one; that he took out his watch and saw that it was far past the time when the train on defendant's road was due at that point--he being familiar with the time of its usual passing; and satisfying himself that the way was clear and safe, he started immediately across. Though the fact is not affirmatively stated by plaintiff, it is fairly inferable from his answer to a question on cross-examination, in which it was assumed that when he started across his cap was over his ears. What sort of covering this was, or to what extent it would likely obstruct his hearing, does not appear. His statement is as follows in this connection:

" I was in a condition to hear. I had a cap pulled down over my ears, and when I stopped I pulled my cap up, and I neither saw nor heard the train. I thought the train had passed, and I started to go on across home. Just as my horses got their front feet over the first rail of the K. C. track, after I went over the H. & St. J.--I was watching the wagon track for I was fearful, it was so narrow, and it took all my attention to keep the wagon on it--and just as my horses were going on the track of the K. C. road, I thought I heard a train, and just then I looked and saw it coming around the curve. It was then half way, or more, between the whistling post and the crossing. Then I commenced whipping to get across. If I pulled back off the crossing, the track was so narrow I would slip off; then the heads of the horses were so close I was fearful it would scare them there. If they would jump forward it would be on the track. I thought I could make it. I just whipped across as fast as I could. Just as I got across and turned down the fill the cars came by me and as they passed they struck the hind wheels of the wagon."

Q. " I want to know how far down the fill you had gone before you were struck?"

A. " My wagon just got far enough over the crossing and the horses not far enough over to turn; I got off the crossing and down the side of the fill. I was perhaps a step or two from the crossing when I was struck, for the hind wheel that was struck there was the last one going over. It was the off hind wheel that was struck--the one (13) on the right side of the wagon. Dirt was thrown on each side of the K. C. track at the crossing and a plank nailed on the sides of the rails. I think a plank was in the middle. I am not positive. I don't recollect the condition it was in. Don't know as I can tell how far the bottom of the crossing on east side of K. C. road is below the top of the rails--never measured it."

He did not stop to listen or look for the train after entering upon the movement across the track. " I was watching to keep the wagon from slipping. I knew if I didn't it would slip." " Could pass over the crossing easily and rapidly, but had to be particular--the road did not lead off from the track-- that was the trouble." Further, on cross-examination, he stated:

" I would like to have a better crossing. Nothing particular was the matter with the crossing. The road was too near the track there. When I first saw the train the horses were on the track. I whipped up then to get out of the way. The trouble was the road sloped this way. The hind end of the wagon didn't get clear. I think with the same crossing there, but straight across, I could have got away. I knew that the crossing went angling. I suppose, for I never measured it, that it is five or ten steps from the east end of the ties at the K. C. crossing to where the ground begins to rise. Don't think it begins to rise at 10 feet from the crossing. It is 25 feet higher, 50 feet from there (the east end of ties). The top of the bluff runs right up. Should the road go right east from the crossing it would go right up the hill. I think there would be plenty of room if it went square off. The dirt road leaves the K. C. track not at the same angle it crosses the two tracks, but it turned right down on the side of the track. The hole is at the place marked " A" on the map."

(25) Q. " Is there anything to prevent your driving the five or ten steps where the ground begins to rise?"

A " There is where the hole was. That hole was all along there. It looked like it might have been dug to fill up with. At the time there was a deep hole there; right along there it was over three feet; it was a great big hole. Looked like the dirt had been taken out of it there. It was about 4 feet--I never measured it--10 or 15...