Alexander v. St. Louis-San Francisco Ry. Co.

• Decision Date: 11 July 1921
• Docket Number: No. 22155.,22155.
• Citation: 289 Mo. 599,233 S.W. 44
• Parties: ALEXANDER v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

233 S.W. 44

289 Mo. 599

ALEXANDER v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 22155.

Supreme Court of Missouri, Division No. 1.

July 11, 1921.

Motion for Rehearing Overruled July 23, 1921.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by R. N. Alexander against the St. Louis-San Francisco Railway Company. From judgment of nonsuit, plaintiff appeals. Affirmed.

This suit was instituted in the circuit court of Jasper county by the plaintiff against the defendant to recover the sum of $25,000 for personal injuries sustained by him through the alleged negligence of the defendant in running one of its trains of cars against him in the city of Carthage, Mo. The trial resulted in the plaintiff taking an involuntary nonsuit, with leave to move to set same aside, which motion was overruled, and he duly appealed the cause to this court.

Counsel for the respective parties have made rather an exhaustive statement of the facts of the case, but we substantially adopt that of the respondent, for the reason that it presents a clearer and stronger view of plaintiff's case than his own statement does; also presents in a fuller and clearer manner the defendant's case than does that of the plaintiff.

As no question is presented involving the sufficiency of the pleadings, they will be put aside, and we shall deal only with the facts as shown by the record, and the law as declared by the court. The facts are:

Central avenue runs east and west, and appellant was going east. The railroad runs from the southeast to the northwest, but more I nearly north and south. The train with passenger equipment of seven coaches and the engine, with an average length of something like 75 feat, was approaching the crossing from the south or southeast and running to the north, or northwest. The accident occurred on the 26th day of October, 1917, at 7 o'clock a. m. The train was one hour late.

The appellant testified in his own behalf that the crossing in question was a muchtraveled one; that he had lived in Carthage 26 years, during all of which time he had been familiar with the crossing and the surroundings that he had served two terms as a member of the city council, and that at the time of the accident he was, and for 18 months prior thereto had been, street commissioner of the city of Carthage. In other words, the testimony admits his entire familiarity and intimate knowledge of the situation at the crossing as far as the obstruction either to his right or left was concerned, as he approached the place of the accident.

The ordinance limiting the speed to 12 miles an hour was introduced, and appellant testified to his knowledge of its existence. He did not testify, however, that he relied upon the presumption that the train would be restricted its operation to the ordinance speed as it approached the crossing. On the contrary, he says he saw the train, and when he saw it it was running not less than 30 miles an hour, according to his best judgment at the time. He testified that as he approached the crossing the speed of his automobile, of which he was the driver, and which contained on the seat with him one passenger, Mr. Hull, was not less than 10 and not over 12 miles an hour, slightly down hill to the track; that his automobile and the brakes thereon were in good condition; that going at that speed he could stop his automobile in 15 or 20 feet; that he does not think he was ever able to stop it in less than a rod going 10 or 12 miles an hour; that if he had been going 4 or 5 miles an hour he could have stopped his car at 10 or 12 feet; that as he approached the crossing there was quite a tier of billboards that set just off of the street just outside of the sidewalk, some 8 feet high and perhaps 40 feet long, and that west of that, before you came to the billboards, were houses and buildings and so on; that after you got to the billboards there was considerable brush, limbs of trees, that obstructed the view until you got more than halfway from the billboards to the railroad; that the thorn tree which he spoke of was about 30 feet from the south line of the street, and about something like 30 feet east of the billboards; that the body of the tree was right in line with the right of way of the railroad; right in the fence there was a black thorn tree about 4 or 5 inches in thickness, 20 or 25 feet high with considerable top to it, besides a good deal of other brush that was along the fence; and the hang-over limbs from trees outside of the railway fence obstructed the view almost entirely until you got from behind the tree; that the tree was not close enough to the billboard to obstruct the view, but the trees along the fence hung down to such an extent you could not see up the railroad to any extent until you got past the black thorn tree; that from the thorn tree to the track would not be over 25 feet; that as he approached the track the view to the north was practically unobstructed; that he was at the wheel of his car on the north side thereof; that he was watching for the train; that he was always careful about that as he approached railroad crossings; that as he got some past the billboards referred to, while the trees mentioned were in the way to the south, Mr. Hull, who sat beside him, asked, "Is that fellow hollooing at us?" and that he (appellant) looked immediately to the north, the direction in which Hull was looking, and there were a number of railroad men there, not less than 100 feet from the street; that he did not have time to find out whom they were calling; that he saw no motion by the men; that he had hardly time to look, running 30 or 40 feet, until Hull said, "Look out"; that he turned his head the other way, and there was a train just oft the street, not more than 50 or 100 feet away, coming down the track toward him; that the front wheel of his car had just crossed the side track, and he was so close to the main track that there was no chance for him to stop without stopping on the track, and no chance to turn either way; that he saw instantly what his only chance was, and the only safety he had was to try to get across the track, and that was the last he knew.

The testimony by the witnesses show that he was struck, on the crossing, by the train, inflicting the injuries for winch he sues. He testified that he heard no signal, by either the bell or whistle. Other witnesses corroborate him in this respect, but the engineer, whom appellant put on the stand, testified that the fireman was sitting on the seat, ringing the bell, at the time of the accident, and had been since the time it arrived in the corporate limits; in addition, that it had whistled for the crossing signal.

He testified on direct examination also: That the railroad track running southeast is almost entirely straight for a full half mile, and is considerably downgrade, and a train coming down it generally coasts. That there is no grinding of the wheels and no noise made by the train to amount to anything; that at the time he discovered the train the front wheels of his automobile were about 12 feet from the crossing. After testifying to the extent of his injuries, he was cross-examined. That he was entirely familiar with the situation of Central Avenue crossing. That he had hauled gravel from the pit over it ever since he had been commissioner, off and on, and had been familiar with the crossing and surroundings for 26 years. That on October 26th the leaves had fallen a little. That there was nothing to the north to obstruct his view of a train approaching from that direction. That there were two tracks to the railroad where it crossed Central avenue. That the first track which he approached was the switch track, and that he knew that that morning. That he had given his deposition in May, 1918, after the accident on the 26th of October, 1917. (The trial was on the 20th day of November 1919.) That when he had given his deposition he had testified in answer to questions by Judge Gray:

"Q. Do you know how far west of the main track of the Frisco an automobile would be when you could see up the track a quarter of a mile? A. No, I don't know, but it would be guesswork with me. I should think about 80 or 90 feet.

"Q. 80 or 90 feet west of the main track, you had a view of the main track, of a train coming from the south, about a quarter of a mile? Yes, sir.

"Q. When you get to the west line of the right of way, what would obstruct it? A. There wouldn't be anything.

"Q. When you were about 80 feet from the crossing Mr. Hull said, `Do you think those men are hollooing to us'? A. Yes, that was his remark.

"Q. Then from that time on until you got over the switch track or about over the switch track, Mr. Hull said nothing to you about the approaching train? A. Not until just as we were running on the switch.

"Q. Then, Mr. Alexander, had Mr. Hull looked to the south any time, he not being concerned with the operation of the machine, from the time those men hollooed until you ran onto that switch, this train coming would have been in plain view? A. Yes."

As to this last question and answer, the witness on the stand said he did not think he answered it as transcribed, but he could not say as to how he answered it. Ho was then asked regarding his deposition; If the following question and answer given by him at the time were not correct:

"Q. Tell me, how you could have looked between the time you got within 80 feet of that track and the time you got over the switch, without seeing the train. A. I had been looking and listening for a train, and my attention was turned the other way on account of his remark and their hollooing, and I was approaching the track; it takes very little bit, running 12 miles an hour, to run 80 feet. I had run perhaps 65 or 70 feet during the time."

He said he thought he had answered that way. He was asked if the following question was not propounded to him in the deposition:

"Q. Now, Mr. Alexander,...