Advance Transfer Co. v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 21 May 1917
• Docket Number: No. 12449.,12449.
• Citation: 195 S.W. 566
• Court: Missouri Court of Appeals
• Parties: ADVANCE TRANSFER CO. v. CHICAGO, R. I. & P. RY. CO.

195 S.W. 566

ADVANCE TRANSFER CO. v. CHICAGO, R. I. & P. RY. CO.

No. 12449.

Kansas City Court of Appeals. Missouri.

May 21, 1917.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

"Not to be officially published."

Action by the Advance Transfer Company against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Sebree, Conrad & Wendorff, of Kansas City, for appellant. S. A. Dew, of Kansas City, for respondent.

BLAND, J.

This is a suit for damages to an automobile truck and grocery contents caused by a collision between said truck and defendant's engine.

The first point made by appellant is that the demurrer to the evidence should have been sustained. Of course, on a demurrer to the evidence, we are required to take the evidence in its most favorable light to plaintiff, and we are stating the evidence in view of this rule.

The evidence shows that plaintiff's truck weighed 10,500 pounds, was loaded with 6,500 pounds of groceries, and was being driven east on Independence road, in Kansas City, Mo., by one Will Brown, an experienced chauffeur, who had driven over the place where the accident occurred many times before. Brown was seated on the left-hand side of the truck on the driver's seat, and to his right was seated John Buchanan, a helper, and seated on the rear of the truck, facing the north, was another helper, Allen Turner. Independence road runs east and west at the point in controversy, and was covered with snow and ice. The accident happened on January 25, 1915. As the truck approached the place where defendant's tracks cross Independence road, in Sheffield, the road was almost level and somewhat raised in the middle. Brown, the driver, was running his truck to the right of the center of the street, about 4 feet from the south curb, headed toward the east. About 195 feet south from the south line of Independence road the track in question diverged from defendant's main track, and the former, after leaving said main track, made a very sharp curve westward, which gained in intensity as it neared Independence road and crossed said street obliquely, cutting off the entire northwest corner, taking almost a westward course thereafter.

The engine that struck the automobile truck came from the south. The view of the track south of Independence road from the west side of the track is entirely obstructed by buildings for nearly a block west of the track. On the southwest corner of the crossing stood a two-story saloon building, built up to the property line to the north and east, except for a few feet that was cut off the corner for the entrance. The west rail of the track was 18 feet from the entrance of the saloon. Starting at the north wall of the saloon and running north, the space between the saloon building and the curb was 22 feet, and, if the east line of the saloon were extended north across Independence road, the west rail of the track would intersect it slightly north of this south curb, which, as stated above, is 22 feet from the building.

Independence road, from property line to property line, is 80 feet in width. At the center of the street the west rail would intersect an imaginary line, made by extending the east line of the saloon north across Independence road, 8 feet west of said line, and, as stated before, from this point onward the track continues to make a very sharp curve, and finally turns westwardly. A very dangerous crossing existed, where the automobile truck was struck, by reason of the situation as above described; this on account of the fact that a situation in the nature of an acute angle was formed, consisting of the south building line on the one side, running up to within 18 feet of the track, and the oblique curvature of the track on the other, making it practically impossible for persons near the south curb, a few feet from the west rail of the track, headed toward the east, to see trains coming from the south around the saloon building.

The testimony shows that Brown, in approaching this crossing, stopped his truck 4 feet from the south curb of the street and the length of his truck from the west rail of the track, his truck being 21 feet 9 inches long. This made Brown 21 feet 9 inches, plus the distance from the bumper of his truck to his place on the seat, from the rail. Here Brown stopped, and looked both ways for trains, and listened for signals. He was unable to see south along the railroad track, but heard no signal whatever. Buchanan and Turner, the other occupants of the truck, also testified positively that no bell was rung and no warning of any kind given. The fireman of defendant's engine leaned out of the cab window on the left-hand side — that is, the side next to the track, with a view of the inside of the curve — and looked to see if the crossing was clear, and he testified that he remained there until the pilot of his engine, 30 feet in front of him, reached the south line of Independence road, and that he did not see the truck. The engineer, who was stationed on the right side of the engine, also testified that he did not see the truck until he struck it.

Brown, having stopped, looked, and listened, as aforesaid, shifted his gear into first speed and proceeded across the track, and when he reached a place in front of the building, where he could see around the curve, he was about middle way of the track. At this point he looked again, and the engine "had him," and he immediately exclaimed, "Oh, my God!" and shifted his gear into second speed, and attempted to clear the track, but the engine struck just in front of the rear wheels.

While the evidence, as above detailed, was contradicted in some respects, especially as to the question of the ringing of the bell and whistling of the engine, we are clearly of the opinion that the evidence was such that plaintiff was entitled to go to the jury as to whether the statutory signals were given. The three witnesses who testified that no warning of any kind was given were all in a position where they could hear, and at least one of them, the driver, was listening for the purpose of hearing. This was sufficient to negative the fact that the bell was ringing, and consequently was sufficient to take the case to the jury. Doyle v. Railway Co., 185 S. W. 1175; Buckry-Ellis v. Railroad, 158 Mo. App. 499, 138 S. W. 912; Stotler v. Railway, 200 Mo. 107, 98 S. W. 509; Underwood v. Railway, 190 Mo. App. 407, 177 S. W. 724; Murray v. St. Louis Transit Co., 176 Mo. 183, 75 S. W. 611.

Appellant claims that, by reason of the fact that the engine of the truck was running at all times up until the truck was struck, the occupants of the truck were thereby prevented from hearing the bell and whistle, and consequently their testimony that the statutory signals were not given is of no value. The testimony was that the automobile engine was in a good state of repair, and made no more noise than the ordinary engine, and in the absence of any evidence showing that the noise of the...