Aldridge v. Missouri Pacific Railroad Company

• Decision Date: 03 December 1923
• Parties: ERNEST ALDRIDGE, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant. *
• Court: Kansas Court of Appeals

256 S.W. 93

215 Mo.App. 217

ERNEST ALDRIDGE, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant. *

Court of Appeals of Missouri, Kansas City

December 3, 1923

Appeal from the Circuit Court of Cass County.--Hon. Ewing Cockrell Judge.

REVERSED.

Judgment reversed.

A. A Whitsitt and T. H. Haynes for respondent.

James F. Green, C. W. Hight and W. M. Bowker for appellant.

OPINION

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, Missouri, approaching defendant's railroad crossing. Upon reaching it, he was struck and severely injured by an eastbound fastmail train going fifty-five or sixty 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 $ 5000, 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 fifty-five or sixty 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 fifty or sixty miles per hour. Plaintiff was a man nearly thirty-six 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 of 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 down grade 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 fifteen 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 eighty 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 eight or ten feet. Seaton, plaintiff's witness, said he never measured it, but he judged it was twelve feet from the north rail of the main track to the depot and ten 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 fifteen 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 thirty-three 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 eight or ten 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 thirty-three-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 ten or eleven feet south of the house track he stopped and looked for a train. He testified that at the point where he stopped he couldn't see past the depot; that he looked and couldn't see a train and listened and couldn't 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."

He testified that he was eight or ten 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 six miles per hour and was about eight or ten 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 six miles an hour, he could stop in six or eight 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 sixty miles per hour. His cross-examination as to why he didn't stop was as follows:

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

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

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

"Q. After you saw this train down there three hundred 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 had your car so that you could have stopped it in that eight or ten feet, after you saw this train down there three hundred feet away, you would not have been hit? A. If I could have stopped I wouldn't?

"Q. I say, if you had had your car under such control that you could have stopped it in eight or ten 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 eight or ten 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 six miles an hour."

If plain...