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

• Decision Date: 03 December 1923
• Docket Number: No. 23612.,23612.
• Citation: 256 S.W. 733
• Parties: BEAL v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

256 S.W. 733

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

No. 23612.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by James Beal against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

W. F. Evans, of St. Louis, and Ward & Reeves, of Caruthersville, for appellant.

J. L. Fort, of Dexter, for respondent.

HIGBEE, C.

While plaintiff was attempting to cross defendant's railway with a Ford truck, at a public road crossing between the towns of Brownwood and Advance, in Stoddard county, on December 29, 1920, the truck was struck by one of defendant's trains, inflicting upon plaintiff serious and permanent injuries. He recovered judgment for $10,240, from which defendant appealed.

A public road runs westerly from Advance along the south side of defendant's right of way about a mile and a half, and then crosses the right of way at right angles, and continues westward to Brownwood. The collision occurred at this crossing a little after sunset, while it was "dusky-dark," as stated by some of the witnesses.

The amended petition alleges, in substance, that, when plaintiff's truck was about 50 feet south of the rails of defendant's railway, he turned it northward for the purpose of passing over said crossing; that he looked northward and in no other direction until the engine collided with his truck; that he did not see nor hear the train, and was oblivious of its approach and of his peril; that the speed of the truck was about 8 miles and that of the train about 40 miles per hour; and that the train was about 250 feet east of the crossing at the time he turned his truck northward to pass over the crossing; that, when the train was as much as 250 feet distant from the crossing, the defendant's agents and servants operating it saw, or, by the exercise of ordinary care, could have seen, that plaintiff was on said crossing, and was about to pass over the rails thereof, and that plaintiff was not aware but was oblivious of the approach of said train and of the danger he was in, and that, after defendant's agents and servants operating said train discovered, or, by the exercise of ordinary care, could have discovered, his said danger and peril, they could, by the exercise of ordinary care, have avoided injury to plaintiff and his truck; that the bell on said engine was not rung or the whistle sounded at any point within 80 rods of said crossing, nor did defendant's said agents and servants have said train under control so that in case of an emergency it could be stopped as it was approaching said crossing.

The petition then avers the injuries sustained; that said injuries resulted from the negligence of defendant's said agents and servants in failing to ring the bell or sound the whistle or slacken the speed of said train as it was approaching said crossing after they discovered, or, by the exercise of ordinary care, should have discovered, the plaintiff was approaching said crossing and was about to enter upon the rails of defendant's railway in front of said train, and that he was not aware of the approach of said train and was oblivious of his peril.

The answer is a general denial, and that plaintiff's injuries were caused by his Own negligence in atempting to cross the railroad track immediately in front of an approaching train without listening for the approach thereof. The court sustained a motion to strike out the plea of contributory negligence.

Plaintiff testified that the country between Advance and Brownwood is level and clear of anything to obstruct the view along the railroad track; that as he started from Advance in his truck he heard the train whistle for the station at Advance, and, when he turned north to drive over the crossing, he supposed the train had passed that point; that he looked steadily to the north and looked neither to the right nor to the left as he approached the railroad track; that he did not look for the train, and did not know a train was approaching; that he might have been driving his truck miles an hour until he got ready to cross the tracks; that he had no independent recollection of how fast he was going at that time; that he didn't know how fast the train was running, but that it was running pretty fast; that he discovered the train just as he drove on top of the track; that the train was right on him when he first saw it; that he never saw it until he got right in front of it, and just had time to jump from behind the steering wheel and get to the door; that if he had seen the train he could have stopped his truck in 5 feet; that he didn't know where the train was when he turned north when he was about 50 feet from the track; that he could have men the train at any place on the track between Advance and the crossing if he had been looking; that the train consisted of a gasoline engine and two coaches; that he was familiar with the whistle, and knew it was the same train that had been running on that track for four or five years; that he had been traveling on this road and going over this crossing 7 or 8 years, crossing there many times; that the engineer sits on the right side of the engine, and there is a window in front of the train; that he didn't know how far one could see out to the left of the track from that viewpoint as he was never in where the engineer sits; that he had seen this engine many times, and never saw any other man in the cab except the engineer; never saw a man on the left side of the cab; that the truck has a cab on it, and you have to look out at glasses or doors, and has also a windshield in front and a little curtain behind; that the accident happened between sundown and dark, and that the headlight on the train was burning.

There was other evidence that the engine bell was not ringing nor the whistle sounded as the train approached the crossing; that the engine struck the front part of the truck, demolishing it, and carrying it about 300 feet west of the crossing, dropping it on the south side of the track.

John Burroughs, plaintiff's witness, on cross-examination, testified:

"The engineer occupies the right-hand side going west. * * * In looking through that window, he would have to look around the nose of the engine to see an object on the left-hand side of the track, and he would have to be quite a little ways from the object to see it. I think the engineer could see from 150 feet to the crossing a fellow approaching the track if he was 50 or 60 feet from it. I am not sure about that. Assuming that the engine and train is 200 feet from the crossing, I don't know how close an automobile would have to get to the track at the crossing before the engineer could see from that window the automobile. I think it would have to get within 30 or 40 feet of the track. * * *

"I was never on the train to see just how those windows are arranged. I think the engineer could look out the front window if he wanted to, and I think he could get a view of anything approaching the track from the right-hand side. I don't know how close an automobile would have to get to the track before he could see out of the window if the train was 250 feet; I never demonstrated that to see; there is an obstruction to one's view there within certain limits; and I don't know what the position of the engineer was on this occasion. If he was there at his window, the one he usually looks out at, he couldn't see an automobile if he was 200 feet from the crossing, until the automobile got up pretty close to the track; I think it would have to get within 15 or 20 feet of the track anyway. I never drove a Ford truck. In going up over the crossing in question something like 25 feet before you get to the railroad track you commence to go up a little incline, and you go up that until you get up to the rails. If an automobile is approaching this railroad track and started up that little rise, if one would just throw off the engine and put on the brakes, it would stop awful quick —something like about 5 or 6 feet."

On redirect examination:

"I said there is a window in front of where the engineer sits, I think. If the engineer was 300 or 400 feet from the crossing, I think he could see the automobile 8 or 10 feet before the automobile got to the crossing. As the train approached the crossing, I don't have any idea how close it would have to get to the crossing until he could see the crossing through the window. I don't know, but I think it would be Close work if the engineer sitting in front of that window could see the entire right of way of the railroad, assuming it to be 100 feet wide, at a point 250 feet further on in front if he was sitting there looking through that window; I mean it would be all he could do."

On recross-examination:

"Q. If the man was approaching the crossing and was at least 50 feet from the crossing, and the man on the engine was 150 feet from the crossing, he couldn't see further back than 50 feet, could he? A. No, sir. Q. And, if they kept that same line of view up until they made the collision, they never would be in view of one another, would they? A. No, sir."

Gilbert Hancock, plaintiff's witness, testified on cross-examination:

"Supposing an automobile was 50 feet from the crossing, and this train was back there 150 feet, I am not swearing that a fellow could look through a front window and see that automobile, and I don't know that he couldn't see it. Off at a distance you may see him, but when you get up close to the crossing he can't; the closer he gets the more obstructed it would be. I don't think this man Beal, as he approached the railroad track, could be seen by the engineer in his place, if he was right up at the crossing. Supposing he was up in 10 feet of the track, was running slow, and he could stop within 5 feet, and the engine was back up here some distance, I don't think the engineer could see him,...