Anderson v. Davis

Decision Date10 May 1923
Docket NumberNo. 2973.,2973.
PartiesANDERSON v. DAVIS, Director General of Railroads.
CourtMissouri Court of Appeals

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

Action by Wm. H. Anderson against James C. Davis, Director General of Railroads. From judgment for plaintiff, defendant appeals. Reversed and case certified to Supreme Court.

W. F. Evans, of St. Louis, Geo. Grayston, of Joplin, and Mann & Mann, of Springfield, for appellant.

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

FARRINGTON, J.

This case was first assigned to COX, P. J., and he has prepared a statement of the case and an opinion disposing of the question of whether the plaintiff was guilty of contributory negligence as a matter of law. There is division, however, on the question of whether plaintiff made a case to go to the jury on the humanitarian doctrine. We have adopted that portion of the opinion prepared by COX, P. J., which disposes of the contributory negligence feature. It is as follows:

I. "Action for damages for the death of the wife of plaintiff caused by a train on the St. Louis-San Francisco Railway Company striking an automobile at a public highway crossing. Judgment for plaintiff for $5,000, and defendant appealed.

"On February 23, 1920, plaintiff, with his wife and baby, was traveling in an automobile which plaintiff was driving from Joplin to Carl Junction. At a crossing of a public highway the automobile was struck by the engine of a train consisting of an engine and caboose. The automobile was demolished, the occupants thrown out, and plaintiff's wife was so badly injured that she died in a few days afterward.

"Plaintiff's evidence was to the effect that he was driving his automobile west on the public road; that the train which struck him was going south at the crossing and the track of the railroad, and the train could not be seen by plaintiff as he approached the crossing until he was in about 200 feet of the crossing, and the train came around a curve and a hill, and was 250 feet to 300 feet from the crossing; that, as plaintiff approached the crossing, he and his wife were watching and listening for the train, and talked about a fonner accident at this same crossing; that when he reached a point about 50 feet from the crossing he had slowed down to about 3 or 4 miles per hour, and he looked both ways, and listened, and saw or heard no train, and heard no whistle or bell at any time. Plaintiff first looked north just after he passed inside of the right of way fence, which was about 50 feet from the track, and saw and heard no train, then looked south as he passed along, and saw no train in that direction, and about this time he reached a point within 25 feet of the track, and attempted to shift his gear, but it did not work just right, but he finally got it adjusted, and then increased his speed, and went on, and about that time, he then being in 12 to 15 feet of the track, his wife saw the train, and said: `There is the train.' Plaintiff then looked, and saw the train almost on him, and heard a whistle, and the automobile was struck immediately thereafter, and he remembered nothing further. The automobile had almost cleared the track, and was struck near the rear end.

"There were other witnesses who testified that the whistle was not sounded nor the bell rung as the train approached the crossing, and that the train was running at a fast rate. The evidence on the part of the defendant tended to prove that the whistle was sounded at the proper places and the bell rung as the law requires. The engineer testified that his outlook was on the right or west side of the engine, and on account of the curve he could not see the rails at the crossing until close to it. The position of the fireman was on the left or east side, and he had a clear view of the crossing after they came out of the cut, which the evidence for the defense places at 400 feet from the crossing. He testified that he first saw plaintiff when he was 100 to 150 feet east of and approaching the crossing; that plaintiff was driving about 20 miles per hour, and did not slacken his speed; that he formed the impression that plaintiff was not intending to stop when he was 75 to 100 feet east of the crossing, and that he was then running about 20 miles per hour, and the train was about 100 feet from the crossing, and running 25 miles per hour; that he told the engineer to stop, and that the engineer applied the brakes immediately.

"A demurrer to the evidence was filed by defendant at the close of plaintiff's case and at the close of all the testimony. These were overruled.

"Appellant contends that the evidence shows that plaintiff was guilty of contributory negligence as a matter of law, and hence the case should not have gone to the jury on the theory of negligence on the part of defendant and due care on the part of plaintiff. There can be no question as to the law which requires a person approaching a railroad crossing to both look and listen and use ordinary care to discover and avoid collision with a train. It is not always easy, however, for a court to say just what conduct on the part of a plaintiff in a suit will amount to proper care on his part. The standard by which to judge his conduct is that of an ordinarily prudent person under the same or similar circumstances. A plaintiff should be bound by his own testimony as to the facts upon which the question of his contributory negligence, as a matter of law, is to be determined. The plaintiff in this case testified that he could see the train when he was 200 feet from the track, and the train was 250 to 300 feet from the crossing; that he did not see the train on the day of this accident until he was almost on the track, and the train was then right on him; that he was running about 4 miles per hour when he reached the right of way of the railroad about 50 feet from the track; that he then looked north, and saw or heard no train; he then looked south, where he had a clear view of the track for a long distance, and saw no train; he did not look north any more; after looking south he was then in about 25 feet of the track, and began to shift his gear, and when he got it shifted he was then in 12 to 15 feet of the track and his wife then saw and notified him that the train was there; he then looked and saw the train, and, as he expressed it, the train was right on him, and he remembered no more.

"The presence of a railroad track is in and of itself a warning of danger, and a person approaching such crossing must look and listen" for trains until he is past the danger point, regardless of whether the bell is rung or the whistle sounded. If plaintiff had looked to the north at the time he found it necessary to shift his gear, when he was 25 feet from the track, he would undoubtedly have seen the train at that time, and could have stopped his car and have avoided the collision. Our conclusion is that on plaintiff's own testimony, by which he is bound, he was guilty of contributory negligence as a matter of law, and the trial court should have so held. The error in that particular will necessitate the reversal of this judgment."

II. Appellant contends that the plaintiff failed to make a case under the humanitarian doctrine, and we will now turn our attention to that.

Bearing on this question, the admitted or uncontroverted facts in this case are that plaintiff was driving west approaching this railroad crossing with his wife in a Maxwell car, in February, with the curtains up on the right-band or north side. The plaintiff was driving, and seated on the left or south side of the front seat of the automobile. The road was a chat road and the crossing over the railroad was in good condition. There could be but one way that the operators of defendant's train, consisting of an engine, tender, and caboose, coming from the north, could determine what the operator of plaintiff's automobile was going to do as he came to the crossing, and that was by watching the action of the automobile; the operators of the train being unable to see the occupants of the automobile. The right-hand side of the engine struck the right-hand rear wheel of the automobile as it was passing over the track. The testimony is that, had plaintiff's car gotten about a foot farther, it would have missed it. All of the testimony shows that the engine which struck this car was traveling about 25 miles an hour within 100 to 75 feet of the crossing.

Turning now to plaintiff's evidence: He testified that on the day of the accident he and his wife were traveling west on this road approaching the intersection of defendant's railroad, passed around a wagon, which was also traveling west about 225 to 300 feet east of the railroad track; that the speed his automobile was traveling at that time and point was 15 to 20 miles an hour, and that almost immediately after passing around this wagon he began to decrease the speed of his car until it reached within 50 feet of the railroad track, or the point even with defendant's east right of way fence, until the car at that point was traveling at a speed of about 5 miles an hour, and from that point on to a point about 25 feet from the track the speed of the car was decreased to 3 or 4 miles an hour, and, having reached the last point, 25 feet from the railroad track, the speed was so slow, the car still being geared in high, that it was about to stop, and that he threw it into second, or intermediate, and gave his car gas, and speeded it up on the track, and was struck just as he was going over. The uncontradicted testimony shows that the view to the north at a point 50 feet east of the tracks the railroad was clear back to a hill around which defendant's track came from the northeast. There is some little difference as to how far back the train could be seen in point of feet, but all agree that to could be seen to this hill. A number of plain...

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