Botts v. Chicago, Burlington & Quincy Railroad Co.

• Decision Date: 13 June 1914
• Citation: 167 S.W. 1154,180 Mo.App. 368
• Parties: FRED L. BOTTS et al., Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Respondent
• Court: Kansas Court of Appeals

167 S.W. 1154

180 Mo.App. 368

FRED L. BOTTS et al., Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

June 13, 1914

Appeal from Livingston Circuit Court.--Hon. A. B. Davis, Judge.

AFFIRMED.

Judgment affirmed.

Scott J. Miller for appellant.

Frank Sheetz, M. G. Roberts and John C. Carr for respondent.

OPINION

ELLISON, P. J.

Plaintiffs are the owners of an automobile car and this action is to recover damages alleged to have resulted to them by reason of destruction of the machine in a collision with one or more of defendants cars in Chillicothe. There was a verdict for plaintiffs, whereupon defendant filed a motion for a new trial which was thereafter sustained by the court and plaintiffs appealed to this court from that order.

The petition charges that one of plaintiffs and three other persons were coming into the city of Chillicothe between eight and nine o'clock on the 30th of November 1912, p m., and that it was necessary to cross several tracks of the defendant which were laid over and upon one of the principal streets of the city. That it was provided by the ordinance of the city that defendant should maintain a watchman at said crossing to warn persons of the danger of trains. But that as plaintiff approached the crossing he stopped the machine and looked and listened, that he did not see or hear an engine or train; nor did he see any watchman. That he then proceeded to cross the tracks with proper care, but that when he got upon "the house track" of defendant an empty car which had been switched or shunted onto said track came out from behind a house, at great speed without any one on it and without having the watchman at his place and without giving any warning to him and ran into his machine and demolished it.

The evidence in plaintiff's behalf did not bear out the petition in some respects. The allegation is that the car which struck the machine was being switched by shunting it which we understand to mean by making a flying switch with a detached car. The evidence shows this car was attached to and was being propelled by an engine.

There is a great deal of discussion in briefs of counsel we need not notice. As we have said, the court granted the new trial on account of error in the first and second instructions for plaintiff. Defendant insists the trial court was correct in holding there was error in each of the...