Anderson v. Davis

• Decision Date: 12 April 1926
• Docket Number: Mo. 25155.
• Citation: 284 S.W. 439
• Parties: ANDERSON v. DAVIS, Director General of Railroads.
• Court: Missouri Supreme Court

284 S.W. 439

ANDERSON v. DAVIS, Director General of Railroads.

Mo. 25155.

Supreme Court of Missouri, Division No. 1.

April 12, 1926.

Motion for Rehearing Overruled and Motion to Transfer to Banc Overruled May 24, 1926.

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

Action by William H. Anderson against James C. Davis, Director General of Railroads. Judgment nisi for plaintiff was reversed by the Springfield Court of Appeals (251 S. W. 86), and the cause was thereafter certified to the Supreme Court for final determination. Judgment nisi for plaintiff affirmed.

E. T. Miller, of St. Louis, Grayston & Grayston, of Joplin, and Mann & Mann, of Springfield, for appellant.

Owen & Davis, Norman A. Cox, and Hugh Dabbs, all of Joplin, for respondent.

SEDDON, C.

This is an action brought by plaintiff to recover a sum of not less than $2,000 or more than $10,000, under and by virtue of section 4217, R. S. Mo. 1919, for the death of his wife, who died by reason of injuries inflicted when the automobile in which she was riding, and which was driven by plaintiff, was struck by a train, consisting of a locomotive, tender, and caboose, operated under federal control by employees of the Director General of Railroads, on a public road crossing near Joplin, Mo., at or about 4:30 o'clock on the afternoon of February 23, 1920. Verdict and judgment nisi were for plaintiff in the sum of $5,000. The cause was appealed to the Springfield Court of Appeals, which court, by majority opinion, reversed outright the judgment below. One of the judges of that court filed a dissenting opinion, and deeming the majority opinion of that court to be in conflict with our own ruling in Campbell v. Railway Co., 175 Mo. 161, 75 S. W. 86, asked that the cause be certified to this court for final determination pursuant to section 6, Amendment of 1884 to article 6, Constitution of Missouri. The majority and dissenting opinions in the Springfield Court of Appeals are fully reported in Anderson v. Davis, 251 S. W. 86.

On the day in question, plaintiff, accompanied by his wife and baby, was traveling in a Maxwell automobile on a public road from Joplin to Carl Junction. As the automobile was about to clear the railroad track of the St. Louis-San Francisco Railway Company, intersecting said public road, the locomotive of the train struck the rear right wheel of the automobile, throwing the occupants therefrom and causing injuries to plaintiff's wife, from which she died a short time afterward. The petition upon which the cause was tried charged defendant with negligence in these respects: Failure to keep a reasonable and proper lookout for persons and vehicles approaching and crossing over said crossing; operating said locomotive and train at an excessive and dangerous rate of speed; failure to give the statutory signals, by either whistle or bell; failure to give plaintiff warning of the approach of the train; and—

"That the agents, servants, and employees of defendant in charge of and operating said train at said time and place, saw, "or by the exercise of ordinary care could have seen, plaintiff and his said automobile approaching and on said public crossing in a position of peril in time, by the exercise of ordinary care, to have warned plaintiff, by bell or whistle, of the approach of said train, or in time to have checked the speed of said train or to have stopped the same and avoided striking said automobile and causing the injury hereinafter set out, but that said officers, agents, and servants in charge of said train negligently and carelessly failed to give such warning, and negligently and carelessly failed to so check the speed of said train or to stop the same."

The answer is a general denial and pleas of contributory negligence, respectively, of plaintiff and his wife.

The public road on which plaintiff and deceased were traveling runs east and west. The automobile was traveling west, approaching the railroad crossing from the east. The general direction of the railroad track immediately at the road intersection is north and south, and the train was approaching from the north, being south bound. The railroad track from the crossing south is straight. Immediately east of the track and south of the road is an open field, and, approaching the track from the east, there is nothing to obstruct the view of the track south of the road for approximately a half mile. North of the road, the railroad track curves somewhat sharply to the northeast. Approximately 400 feet north of the road and east of the railroad track is the point of a hill, sloping upward from a point 400 feet from the road sufficiently to obscure the view of the road from the track and also to obscure the view of the track from the road. The evidence indicates that this hill near the east side of the railroad track obscures the view of one approaching the crossing on the road from the east until a train upon the railroad track reaches a point approximately 400 feet north, or northeasterly, of the road; likewise, the view of the operatives of a train approaching the road from the north is obscured until the train reaches the point of the hill, approximately 400 feet from the road. On the north side of the road and approximately 300 feet east from the track were some tailing piles. Between the tailing piles and the track, on the north side of the road, there were some trees and underbrush, but these were apparently not so many in number or so close together as to obstruct the view of a train after it reached the point approximately 400 feet north, or northeasterly, of the road crossing. Certain photographs identified by witnesses and put in evidence as exhibits in the record before us, indicate that a train with the pilot of the locomotive stopped 400 feet north, or northeasterly, of the road may be seen by a person stationed at a point in the center of the public road 150 feet east of the railroad track. The railroad track is slightly downgrade from the north to the crossing. The road is slightly higher as it crosses the track than at a point 50 feet east of the track. The east railroad right of way fence is about 50 feet east of the track. According to plaintiff's testimony :

"The road is well graded and chatted, good, smooth road all the way, and the chatted road is about 25 feet wide. The (railroad) crossing was smooth. There were planks on both sides of the rail and chatted in between, like the rest of the road."

So much for the physical surroundings at the scene of the catastrophe.

Plaintiff testified:

"As we approached the Frisco crossing, I observed some tailing piles about 300 feet east of the track, and there is a hill there and some trees and brush, fence posts. We had the curtains on the north side, all the curtains on the north side, were up. The curtain on the south —the back part of the car was curtained, but the front was open. In approaching the crossing, we was driving along there, and my wife and I were talking as we usually do, and we came up, oh, probably 300 feet from the driveway or crossing there. We drove out around a horse and wagon that was there. Driving on up to the right of way fence to probably 50 feet from the railroad, we slowed down our speed until, I judge, 3 or 4 miles an hour. I was driving, as I got inside the right of way fence, and our attention had been on the railroad from the accident that had previously occurred. We was talking about that, and I took a look to the north and saw no train, heard nothing. Then I turned again and looked to the south. The car was moving on toward the track, and reached over and shifted the gear until I got to the point where it wasn't running like it should. It was kind of a coast as it came in there, and I shifted the gear and started on. I was up probably then some 12 or 15 feet of the track, that would be my judgment. At that time I shifted the gear and started on, and about that time my wife cried out and says, 'There is the train.' I looked and saw the train and heard the whistle. From that on I don't know what occurred. That is the last I remember. We had been listening for the train, but we got up in 300 or 400 feet of the track, and we were trying to look to the north and south; it was open to the south, and we could see very readily, but we were trying to see the north.

"Q. Could you see to the north? A. We could see the hill and brush, but you couldn't see around the bend until you got up probably 200 feet of the track; then we could see a part of the track. I never heard any whistle or sound of any kind. Just previous to the striking of my car, I heard two short blasts of the whistle.

"Q. Just describe, if you can, how that train comes around the curve, what is up there, and how it approaches that crossing. A. In observing since that, the train at about 250 or 300 feet, and you can see from the right of way fence, you can by looking closely, you can probably see a train coming around the bend.

"Q. Why can't you see it before that? A. On account of the hill and timber and old tailing pile.

"Q. Is there anything then—how does the train approach there? Is there any cut or anything that it comes around there to that curve? A. Yes, it is behind a hill and tailing piles for quite a distance, I don't know just how far, up to within about 300 or 400 feet, and it is entirely out of sight. It is downgrade until we come up to the track, and then there is a raise there probably about 2 or 3 feet."

Cross-examination:

"We turned onto this road on which the accident occurred, the east and west road, at the little store about a half a mile east of the crossing.

"Q. After you turned west at the store and started on west, what rate of speed were you traveling? A. Probably 15 or 20 miles an hour; I didn't have a speedometer; couldn't tell exactly, but that is my judgment; something like that.

"Q. Where were you going with reference to the track at the time you passed that...