Anderson v. Davis
Decision Date | 10 May 1923 |
Docket Number | No. 2973.,2973. |
Parties | ANDERSON v. DAVIS, Director General of Railroads. |
Court | Missouri 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.
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.
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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