Aldridge v. Missouri Pac. R. Co.

• Decision Date: 03 December 1923
• Docket Number: No. 14533.,14533.
• Parties: ALDRIDGE v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

256 S.W. 93

215 Mo. App. 217

ALDRIDGE v. MISSOURI PAC. R. CO.

No. 14533.

Kansas City Court of Appeals, Missouri.

December 3, 1923.

Appeal from Circuit Court, Cass County; Ewing Cockrell, Judge.

Action by Ernest Aldridge against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

James F. Green, of St. Louis, C. W. Hight, of Harrisonville, and W. M. Bowker, of Nevada, Mo., for appellant.

A. A. Whitsitt and T. N. Haynes, both of Harrisonville, for respondent.

ARNOLD, J.

This case was before us at the March term, 1923. The following opinion, rendered by Trimble, P. J., at that term is hereby adopted as the opinion of the court on rehearing:

"Plaintiff, in a Ford automobile, the top of which was down, was going south on Fourth street in the unincorporated village of Strasburg, Mo., approaching defendant's railroad crossing. Upon reaching it, he was struck and severely injured by an east-bound fast mail train, going 55 or 60 miles an hour. He instituted this action for damages, based upon excessive speed and failure to give the statutory crossing signals. The answer, in addition to a general denial, pleaded contributory negligence, charging that plaintiff, as he approached the crossing, neglected to look and listen for trains, and failed to keep his automobile under control, so that he could stop in time when the train could be seen as he approached the crossing. The trial resulted in a verdict and judgment for plaintiff in the sum of $5,000, from which defendant perfected this appeal, contending, as the sole ground for reversal, that its demurrer to the evidence should have been sustained for the reason that the evidence conclusively shows plaintiff was negligent, and that such negligence entered into and helped to bring about his injury.

"It is conceded the train was going 55 or 60 miles per hour, and plaintiff introduced evidence tending to show that the crossing signals were not given. Consequently, before appellant's contention can be given effect, the evidence, considered in the light most favorable to plaintiff and giving him the benefit of every reasonable inference to be drawn therefrom, must conclusively disclose contributory negligence on plaintiff's part.

"The following facts are beyond controversy:

"The above-mentioned fast mail train goes east through Strasburg, without stopping, every morning about 10:30 at a speed of from 50 to 60 miles per hour. Plaintiff was a man nearly 36 years of age, in the full possession of all his faculties. He was born and reared, and was still residing upon, his father's farm, about a mile and three-quarters north of Strasburg. He was, and all his life had been, familiar with this crossing, knew that many trains passed over it every day, and knew that this fast mail train went through Strasburg every morning, and that it did not stop. He knew, also, that it went through at great speed, that it was downgrade there, and the train did not make much noise as it came through Strasburg, and, though he says he did not know the precise time it went, he did know that it went through in the morning, and he had not heard it go through on the morning in question (May 3, 1921), and for this reason, as he proceeded along the road hereinafter mentioned, he says he had a train in mind, and was looking, as he always looked, for a train. The train was about 15 minutes late on the day in question.

"There is likewise no dispute over the following facts:

"The main line track runs almost, but not quite, east and west through the town, running in a slightly northwest and southeast direction. For a distance of a mile west of Strasburg, to and through the town, the track has no curves, but is on a straight line. Fourth street, the one on which the collision occurred, lies north and south, and is the second street east of the depot; Fifth street being between Fourth street and said depot. Plaintiff, in answer to a question whether it was 312 feet between the two streets, and then 80 feet more from Fifth street west to the depot, said he had never measured it, but that, in his judgment, it was about 300 feet from the crossing west to the depot. Defendant's civil engineer, who made the plat showing location of depot and its distance west of Fourth street, testified that he measured the distance, and the depot was 375 feet west of the crossing. The main track lies parallel with and is south of the depot. Plaintiff said he never measured the distance between the main track and the depot, but he thought it was only 8 or 10 feet. Seaton, plaintiff's witness, said he never measured it, but he judged it was 12 feet from the north rail of the main track to the depot, and 10 feet from said north rail to the bay window thereof. Defendant's civil engineer's measurement gave the distance from the main track to the depot as 15 feet. The house track began at a switch on the main line at an unknown point west of the depot, and, coming east, diverged far enough from the main line to pass along the north side of the depot and then go on east to and past the Fourth street crossing. At Fourth street, the distance between the main track and the house track was 33 feet.

"In the forenoon of May 3, 1921, plaintiff drove into Strasburg, and, at a point about two blocks north of the railroad, turned south on Fourth street and went toward the crossing. To his right, and along the west side of Fourth street, a view of the railroad was prevented by various obstructions, such as sheds, houses, trees, etc., except at a point about 100 feet north of the railroad, where a street running east and west crossed Fourth street, thereby affording a view of the railroad to the west through a narrow open space. These obstructions along the west side of Fourth street continued on south to within a few feet of the house track, and on this house track west of Fourth street box cars were standing, and extended west almost to Fifth street.

"As plaintiff came south along Fourth street, he says he was driving at 8 or 10 miles per hour, slowing up, however, as he got closer to the track. In going south the last 100 feet to the house track, he knew his view was obstructed, and, as heretofore stated, he had a train in his mind and was looking and listening. After he crossed the house track and got into the 33-foot space between the house track and the main track, there was nothing to obstruct his view to the west along the main track to the depot, and nothing except the depot to obstruct his view further to the west. Plaintiff testified that after he crossed the house track, and when he had gotten about 10 or 11 feet south of the house track he stopped and looked for a train. He testified that at the point where he stopped he could not see past the depot; that he looked and could not see a train, and listened and could not hear any, so, thinking it was safe to go over, he `put his foot on the clutch and started up, and got started good and then I just had thrown it in, and I looked up and seen the train coming. Q. Where was it, the train? A. It came from behind the depot like a streak of lightning.' Be testified that he was 8 or 10 feet from the main track when he saw the train, and, though he said on direct examination that, `I looked up and seen the train coming,' yet on cross-examination, when asked when he first looked west after starting up his car, he said, `I was looking all the time.' He said that when he started up he put his car `into low,' then took his foot off of `low' and threw his car into `high,' and was going about 6 miles per hour, and was about 8 or 10 feet from the main track when he saw the train `come along there [at the depot] a whizzing.' When he saw the train, he said he put one foot on the clutch and pushed it in half way (throwing it into neutral), and his other foot on the brake, and tried to stop, but did not succeed in doing so, and the train hit his car as the front wheels went over the first rail. He testified that ordinarily, in going 6 miles an hour, he could stop in 6 or 8 feet, `if I was thinking about stopping and had my mind on nothing else' He said his car was under control and nothing the matter with it, and he was not going so fast that he could not stop; yet, seeing the train, `it naturally excited me; I was scared;' and he acted as quickly as he could, but could not stop in time. He said the train was going 60 miles per hour. His crossexamination as to why he didn't stop was as follows:

"`Q. You say you could not stop your car before you got onto the track? A. Well, I didn't.

"`Q. You did not stop it? A. No, sir.

"`Q. If you had your car so you could have controlled it in that 8 or 10 feet, you could have stopped your car and avoided this accident? A. If I had what?

"`Q. After you saw this train down there 300 feet, couldn't you? A. It was under control; there was nothing the matter with the car.

"`Q. What I mean is, if you had your car so that you could have stopped it in that 8 or 10 feet, after you saw this train down there 300 feet away, you would not have been hit? A. If I could have stopped, I wouldn't?

"`Q. I say, if you had your car under such control that you could have stopped it in 8 or 10 feet, when you saw the train coming down there— A. It would naturally excite anybody. I tried to stop.

"`Q. But your car was not going at such a rate of speed that it could not stop? A. No, sir; it was not.

"`Q. Why didn't you stop it? A. I couldn't say. It didn't stop.

"`Q. If you say you couldn't stop it in 8 or 10 feet— A. I say I didn't stop it.

"`Q What was there to hinder you from stopping it? A. I don't know. Under the circumstances the—

"`Q. How fast was your car going? A. I don't know; I judge about 6 miles an hour.'

"If plaintiff stopped 10 or 11 feet south of the house track and looked for a train, he was then 21 or 22 feet from the main track, since there was 33 feet of space between the house track and the main track....