Augustus v. Chicago, R. I. & P. Ry. Co.

• Citation: 134 S.W. 22,153 Mo. App. 572
• Court: Court of Appeal of Missouri (US)
• Decision Date: 30 January 1911
• Parties: AUGUSTUS et al. v. CHICAGO, R. I. & P. RY. CO. et al.

134 S.W. 22

153 Mo. A. 572

AUGUSTUS et al. v. CHICAGO, R. I. & P. RY. CO. et al.

Kansas City Court of Appeals. Missouri.

January 30, 1911.

Rehearing Denied February 13, 1911.

1. APPEAL AND ERROR (§ 927)—DEMURRER TO EVIDENCE—REVIEW.

The court on appeal in considering a demurrer of defendant to plaintiff's evidence must accept as proved the facts in evidence hostile to defendant's contention.

2. CARRIERS (§ 280)—PASSENGERS—CARE REQUIRED.

A street railway company owes to its passengers the duty of exercising the highest degree of care to protect them from injury during transportation.

3. CARRIERS (§ 300)—PASSENGERS—CARE REQUIRED.

A motorman operating a car across a railroad crossing must hold his car in a place of safety until the crossing is clear, and until it is beyond the action of a train resulting either from its recoil or the reversing of its engine, and for him to run his car in immediately behind a slowly receding string of cars that may stop and return is negligence, notwithstanding any signal from the flagman.

4. CARRIERS (§ 320)—PASSENGERS—NEGLIGENCE —QUESTION FOR JURY.

Whether a motorman operating a car across a railroad crossing was guilty of negligence

in so operating his car as to cause a collision between it and a train held, under the evidence, for the jury.

5. CARRIERS (§ 284)—NEGLIGENCE—LIABILITY.

A flagman stationed at a railroad crossing used by a street railway company is the agent of the latter, and it is liable for his negligence in signaling a motorman to cross.

6. CARRIERS (§ 315)—INJURIES TO PASSENGERS —PETITION—EVIDENCE.

Where the petition in an action for injuries to a street car passenger in a collision between the car and a train at a railroad crossing alleges that the street railway company so negligently constructed, maintained, and operated its car line and the car as to cause the accident, plaintiff may recover on any conceivable negligence of the street railway company that could have caused the collision, and he need not adduce proof of specific negligence.

7. CARRIERS (§ 316)—INJURIES TO PASSENGERS —NEGLIGENCE—BURDEN OF PROOF.

Where a street car passenger proves that he was a passenger, and that he was injured in a collision between the car and a train at a railroad crossing, the street railway company has the burden of showing that the collision was not caused by its negligence, but was due to unavoidable accident or to the negligence of another.

8. DISMISSAL AND NONSUIT (§ 42)—DISMISSAL AS TO CODEFENDANT—EFFECT AS TO PLEADINGS.

The allegations of the petition against a street railway company and a railroad company for injuries to a street car passenger in a collision between a car and a train are, so far as they charge negligence against the street railway company, unaffected by the act of plaintiff in dismissing the action as against the railroad company.

9. CARRIERS (§ 300)—INJURIES TO PASSENGERS —CARE REQUIRED.

A motorman operating a car on a railroad crossing must know of the presence of trains there, and he cannot attempt to cross so long as a train is in striking distance, and the failure of a brakeman on the train to warn the motorman of the approach of the train does not affect the charge of negligence of the motorman.

10. APPEAL AND ERROR (§ 880)—QUESTIONS REVIEWABLE—PARTIES ENTITLED TO COMPLAIN.

Where, in an action against a street railway company and a railroad company for injuries to a street car passenger in a collision between the car and a train, the jury found a verdict against both companies, the street railway company could not on appeal complain of errors in instructions too favorable to the railroad company.

11. RAILROADS (§ 288)—OPERATION OF TRAINS—CARE REQUIRED.

A railway company operating trains across a street on which a street car company is operating street cars must exercise ordinary care to guard against a collision at the crossing between its trains and street cars, and in the exercise of such care it must consider the fact that it is running its trains over a busy street in rightful use and not to approach the crossing without giving warning, and not to do anything in the running of trains which will unnecessarily enhance the inherent dangers.

12. NEGLIGENCE (§ 92)—IMPUTED NEGLIGENCE —CARRIER AND PASSENGER.

The fact that a motorman in charge of a street car crossing a railroad track failed to exercise the proper degree of care for the protection of the passengers did not excuse negligence of operators of a train resulting in a collision between the car and the train causing injury to a passenger on the street car.

13. RAILROADS (§ 297)—OPERATION OF TRAINS—NEGLIGENCE—EVIDENCE.

In an action for injuries to a street car passenger in a collision between the car and a train at a crossing, evidence held to justify a finding of actionable negligence on the part of the railway company for failing to give warning of the approach of the train.

14. RAILROADS (§ 288)—OPERATION OF TRAINS—NEGLIGENCE.

The rear brakeman of a train approaching a crossing on which street cars are operated must keep a lookout and give warning of the presence of a peril of which he has every reason to believe people on the street cars are in ignorance.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Belle J. Augustus and another against the Chicago, Rock Island & Pacific Railway Company and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

M. A. Lowe and Sebree, Conrad & Wendorff, for appellant Chicago, R. I. & P. Ry. Co. John H. Lucas, for appellant Metropolitan St. Ry. Co. Boyle & Howell, A. F. Smith, and Guthrie, Gamble & Street, for respondents.

JOHNSON, J.

While plaintiff Belle J. Augustus was a passenger on an electric street car operated by defendant Metropolitan Street Railway Company on the Argentine line of its street railway system in Kansas City, a collision occurred between the car and a freight train at a railroad crossing, and plaintiff was injured. She sued the Street Railway Company, the Chicago, Rock Island & Pacific Railway Company, the owner of the train, and the St. Louis & San Francisco Railroad Company, the owner of the track on which the train was running to recover the damages, but during the trial she dismissed the last-mentioned company, and proceeded against the remaining defendants. The jury returned a verdict in her favor against both defendants and the cause is before us on their appeals from a judgment rendered on the verdict which was for four thousand five hundred dollars. There is no suggestion in the evidence of any negligence on the part of the plaintiff who was seated in the car at the time of the collision. As is usual in such cases each defendant seeks to exculpate itself by casting blame for the collision on its codefendant, and, as we shall show, each has achieved the usual result of adducing proof of the actionable culpability of its companion in the suit without excusing itself.

The collision occurred in the daytime on Nineteenth street near the state line. This street runs east and west, is occupied by two street car tracks, and is crossed at and near the state line by a number of railroad tracks. The east one of these tracks, called in evidence "the Frisco connection," curves from a switch in the Frisco yards south of Nineteenth street in a northeasterly course across the street and to a connection with tracks of the Rock Island Company running in an east and west course north of and parallel to Nineteenth street. A freight train consisting of 28 cars and an engine pulled up from the west on one of the Rock Island tracks for the purpose of backing in on the connection to the Frisco yards. It backed slowly, and the rear brakeman, acting as a pilot, walked ahead around the curve. When he reached the street he discovered another train working on the track ahead, and, to avoid a collision, gave a stop signal to his own engineer which was communicated by the middle and forward brakeman and obeyed by the engineer who could not see the end of the train. When the train stopped, the end car was on the street railway crossing and obstructed both tracks. Immediately after the stop the train moved...