Betz v. Kansas City Southern Ry. Co
| Decision Date | 26 June 1923 |
| Docket Number | No. 3152.,3152. |
| Parties | BETZ v. KANSAS CITY SOUTHERN RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.
Action by Louis Betz, as administrator of the estate of Charles Baker, deceased, against Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.
Cyrus Crane and Hugh Martin, both of Kansas City, and Ray Bond, of Joplin, for appellant.
Hugh Dabbs, Norman A. Cox, and Walden & Andrews, all of Joplin, for respondent.
Action by the administrator of Charles Baker, deceased, for damages on account of his death. Jury waived; trial by court, who found for plaintiff for 85,000, and defendant appealed.
The deceased, Charles Baker, with his wife, Jennie Baker, were traveling north on a public highway in Jasper county, and the automobile in which they were riding was struck by the engine of one of defendant's trains on a crossing. The facts in this case are the same as in the case of Louis Betz, Adm'r of the Estate of Jennie Baker, Deceased, v. Kansas City Southern Ry. Co. (Mo. App.) 253 S. W. 1089, in which an opinion has just been handed down by this court, and we refer to that case for a statement of the facts applicable to this case. We held in the Jennie Baker Case that the evidence was not sufficient to take that case to the jury under the humanitarian rule. That holding applies with equal force to this case.
A perusal of the facts in the Jennie Baker Case will develop that Charles Baker, the deceased in this case, was driving the automobile, and that from the time he reached a point at the south end of a bridge in the public highway, which was 118 feet from the crossing, he had by looking a clear view of the railroad track on which the engine and train were approaching for a distance of 267 feet. That being true, it is apparent from these physical facts that, had the driver of the automobile been properly vigilant, he could have seen the train approaching in time to have stopped his automobile and avoided the collision. That being true, he was guilty of contributory negligence as a matter of law which precludes his recovery upon the negligence theory.
We do not think there was evidence in this case sufficient to take the case to the jury upon the theory of negligence nor under the humanitarian rule, and for that reason the plaintiff in this case cannot recover.
Judgment reversed.
FARRINGTON and BRADLEY, concur.
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