Agee v. Missouri Pacific Railroad Company
| Decision Date | 08 November 1926 |
| Docket Number | 15778 |
| Citation | 288 S.W. 992 |
| Parties | Albert W. Agee, Respondent v. Missouri Pacific Railroad Company, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Buchanan Circuit Court.
Affirmed.
Opinion by Ewing C. Bland, J. Arnold, J., concurs; Trimble, P.J. absent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 3595.00 and defendant has appealed.
The facts show that about 6:00 P.M. of December 4, 1924 plaintiff was driving a Ford touring car from Nebraska to his home in southern Missouri. In the course of his journey he was injured by being struck by one of defendant's trains at a railroad crossing about six miles west of Atchison, and near Shannon station, in the State of Kansas. At the time of the collision he was driving east; it was dark, raining and foggy, making it difficult for one at the place in question to see very far ahead even by the aid of a strong locomotive headlight. Plaintiff had never been over the road before or in that part of the country.
The roadway on which plaintiff was traveling was of concrete, 18 feet in width and running east and west; the railroad ran in a northwesterly and southeasterly direction, crossing the highway at an acute angle. The angel made by the intersection of the north side of the highway with the west side of the railroad was 13 [degrees] 03." There were two tracks at the crossing, 14 feet apart. At the point 425 feet west of the crossing the highway was 8 feet lower than at the crossing and at a point 125 feet west of the crossing it was level with it. The photographs introduced in evidence show no abrupt approach to the railroad but a gradual [ILLEGIBLE TEXT]
The railroad extended northwest from the crossing for more than three-fourths of a mile in a straight line. For some distance west of the crossing the highway extended in the same manner. There was a post with a cross arm at the top. These bore the words "Railroad Crossing, Look Out For Cars", and were located 10 feet north of the paving and 84 feet east of the east or main line track of the railroad. The juncture of the cross arms was 10 feet above the ground. 1083 feet southeast of the crossing was Shannon station. On each side of the railroad crossing was a cattle guard. These were 385 feet apart, the one to the southeast being 122 feet southeast of the edge of the crossing, measured down the center of the main line track. The crossing was made of planking laid parallel to the tracks, and of the same width as the paving. The tracks extended about 1 1/2 to 2 1/2 inches above the planking. Those of the main line track being farther above the planking than those of the side track. There were grooves, 3 or 4 inches in width, left between the track and the planking where the flanges of railroad car wheels passed. These grooves were wide enough for the wheels of a Ford car to be caught therein.
Plantiff was driving with his side curtains up, chains on the two rear wheels and rain beating on top of his car. He was looking directly in front. He testified that he was going 15 to 20 miles per hour and did not know of the presence of a railroad or railroad crossing until the front wheels of his car struck the east rail of the main track. This contact caused the car to skid down the track toward the southeast. When he struck the rail he immediately put on his brakes and stopped the car in about 10 to 15 feet. He threw his car in reverse in order to "back out" when "a light flashed" around him "all at once" and "that is the last I knew of it." He did not recover consciousness until after he had arrived at a hospital in Atchison and an X-ray picture was being taken.
The evidence further shows that the train which struck plaintiff consisted of 80 cars and 2 locomotives and the that grade of the track approaching the crossing from the northwest was slightly down hill. The train was not working steam but was "just drifting on momentum". The two locomotives were equipped with headlights sufficient to outline a figure 800 feet ahead, but the engineer testified that he did not see plaintiff's car until the witness "was right about the west cattle guard", at this time it was raining hard; that he immediately applied the brakes and "swung the sand lever open"; that when the train stopped the front end of the engine was even with the door of the station southeast of the crossing. The engine pushed the Ford down the track for several hundred feet. There was no railroad crossing sign west of the railroad; plaintiff testified that he did not see the crossing sign and did not know that he was near a railroad until he "ran upon some planks" and "my wheels got in the planking and I seen that it was on the railroad track and I stopped as quickly as I could." That he did not see the headlight of the train until the end of his car had skidded off the crossing "maybe two or three feet or five"; that he did not see the headlight of the train before he got off the highway. He testified that he did not hear any whistle, bell or noise indicating that a train was approaching.
He further testified that there was no difference between the color of the pavement, the tracks, and the planking; that his headlights shown down on the pavement in front of him; that it was only an instant from the time he came to the railroad tracks until he was struck; that he did not stop or listen for a train.
The case was submitted to the jury under the allegations of the petition pleading negligence in permitting large openings and grooves in the planking at the crossing, in having the rails project above the planking and in failing to maintain a crossing sign that could be easily seen by travelers using the crossing and approaching it from the west.
Defendant insists that its demurrer to the evidence should have been sustained not on account of any lack of negligence on its part but because it is claimed that plaintiff was guilty of contributory negligence as a matter of law in not discovering the presence of the tracks and in not looking and listening. It is defendant's position that although plaintiff testified that he could not see enough of the conditions present to notify him of the existence of a railroad that he can not be heard to say that he did not see what he could have seen and did see. Defendant lays great stress upon plaintiff's admission that he could have seen 100 to 300 feet in front of him. In considering a demurrer to the evidence we must take the evidence in its most favorable light to plaintiff, and this includes his own testimony. The evidence most favorable to plaintiff was that he could see only 100 feet.
We can not say as a matter of law that he could have seen enough to indicate the presence of a railroad. As to the tracks and planking itself, he testified that the planking and tracks were of the same color as the pavement. It must be remembered that it was raining hard at the time and foggy. We have carefully read plaintiff's testimony as to the distance that he saw and we do not construe it to mean that he saw the conditions in front of him as plainly as if there had been no rain or fog. It is true that he could have stopped in 10 or 15 feet and he should have attempted to have done so had he seen the conditions even though they did not appear until he was within that distance from the crossing. The photographs introduced in evidence, as before stated, show that the planking was exactly the same width as the paving and as the former was of the same color, plaintiff did not necessarily notice any difference in the character of the roadway that he was approaching. He may or may not have seen the railroad tracks protruding 1 1/2 to 2 1/2 inches above the planking. These also were of the same color and it was within the province of the jury to pass upon this matter. The cattle guards were at least 120 feet to the side of the paving and we can not say as a matter of law that plaintiff under the circumstances did see or should have seen these.
It is insisted that plaintiff should have seen the crossing sign although it was located 84 feet east of the track. There is no evidence as to the size of the lettering on this sign. The cross arms joined 10 feet above the ground. The evidence shows that plaintiff's headlights shone down on the road and we feel that we would not be justified in saying as a matter of law that plaintiff did or should have discovered the crossing sign present. While plaintiff testified that he did not discover the crossing until he struck the last rail, it must be remembered that he was traveling at the rate of 20 miles per hour and...
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