Brice v. Payne

• Decision Date: 06 June 1924
• Docket Number: No.17743.,17743.
• Citation: 263 S.W. 1005
• Parties: BRICE v. PAYNE, Agent, etc.
• Court: Missouri Court of Appeals

263 S.W. 1005

BRICE v. PAYNE, Agent, etc.

No.17743.

St. Louis Court of Appeals. Missouri.

June 6, 1924.

Rehearing Denied June 24, 1924.

Appeal from Circuit Court, Pike County, Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Roy Brice, an infant, by Claude C. Crowdis, his guardian, against John Barton Payne, as Agent, for settlement of claims against the United States Railroad Administration. Judgment for plaintiff, and defendant appeals. Affirmed.

V. S. Smith, of Bawling Green, Charles M. Miller, of Kansas City, and A. C. Whitson, of Mexico, Mo., for appellant.

Frank Hollingsworth, of Mexico, Mo., and IIostetter & Haley, of Bowling Green, for respondent.

BRUERE, C.

Action to recover for personal injuries and damages resulting Irani a collision between a locomotive engine operated by defendant and an automobile driven by the plaintiff. The trial resulted in a verdict, on the first count of the petition, for personal injuries in the sum of $650, and a verdict, on the second count for damages to plaintiff's automobile in the sum of $375.

The negligence charged in the petition, and upon which the case was submitted to the jury, was: (1) Violation of an eight mile an hour speed ordinance of the city of Vandalia ; (2) failure to give the statutory crossing signals; and (3) failure to exercise a degree of care and diligence commensurate with the danger reasonably to be apprehended taking into consideration the circumstances and surroundings existing at said crossing.

The answer was a general denial and a further plea that the collision was due to plaintiff's negligence in failing to watch out and observe the approaching locomotive engine and avoid collision therewith.

At the close of all the evidence in the case defendant interposed a demurrer to it which the court overruled, proper exceptions being taken at the time.

It is earnestly contended that, under the facts in evidence, the plaintiff was guilty of contributory negligence as a matter of law, and that therefore the trial court erred in submitting the case to the jury.

Briefly summarized, the facts disclosed by the record are: The accident occurred at the crossing of defendant's railroad track over Main street (also called D street) in the city of Vandalia, Mo. Said street is 40 feet wide between the curbs. It runs north and south, and is intersected by defendant's railroad tracks which run east and west. There are three tracks at said crossing, which are between 7 and 8 feet apart; the main line track is on the north, the passing track, upon which the collision occurred, is in the center, and the switch track is on the south. A sidewalk, 10 or 12 feet wide, runs south of the railroad tracks on the east side of Main street. From a point 20 or 21 feet south of the switch track, and extending south for one block, on the east side of Main street, is a row of buildings which precludes any view by a traveler, going north on Main street to the east of said crossing until he passes the north line of, said buildings. At the time of the collision several box cars were standing, both east and west of the crossing upon the switch track. Those on the east vere situate within 2 or 3 feet east of the east line of the said sidewalk, and obstructed any view by a person proceeding north over said crossing to the east until he passed the north line of said box ears.

The accident happened at noon on the 20th day of July, 1919. At the time of the trial, which was had on the 18th day of January, 1921, plaintiff was 20 years old. Regarding the manner in which the collision occurred, the plaintiff's evidence tends to show that plaintiff together with two other boys, got into his Ford automobile, which at that time was parked one block south of the railroad crossing on the east side of Main street, and drove north on the east side of said street; that as they approached the crossing plaintiff slowed down his machine to a speed of between 5 and 8 miles an hour, and looked and listened for approaching trains, but heard and saw none; that when he got over the switch track and near the passing track, he listened, but did not hear the engine, and looked, but was unable to see east, down the passing track, because the view in that direction was obstructed by box cars, which were standing just east of the crossing on the switch track; that when he got past the box cars, where he could see down the passing track, he saw an engine backing up on the passing track, and coming towards him from the east; that at that time the front wheels of the automobile were about on the first rail of the passing track, and the engine was between 6 and 30 feet from him; that when he saw the engine approaching he threw the automobile in low gear, and gave it more gas in an effort to pick up speed and clear the track, but was unable to do so, and that the engine struck his car about the center, and shoved it west about 35 or 40 feet, thereby demolishing it and injuring plaintiff.

Said evidence further shows that the locomotive engine was traveling between 12 and 15 miles an hour, in violation `of the ordinance of the city of Vandalia limiting the speed of locomotive engines at the crossings in said city to 8 miles an hour; that it sounded no bell, except a short blast of the whistle just an instant before the collision; and that no other warning was given of its approach. It was further shown by the evidence that, in approaching the crossing, the locomotive engine was "running light." and that it made practically no noise. The evidence also showed that the automobile had been recently overhauled and made no noise while approaching the crossing.

The evidence for the defendant tended to show that the plaintiff, while approaching the crossing, was driving the automobile about 7 or 8 miles an hour, and that he did not slow up until he got on the passing track and stopped; that the locomotive engine was traveling 7 or 8 miles an hour; that signals were given by the locomotive engine; and that an electric crossing bell was also ringing.

In support of the contention that the demurrer to the evidence should have been sustained it is urged that the plaintiff was guilty of negligence as a matter of law in not stopping his automobile before entering upon the crossing. In this state it is not the law that a person must necessarily stop before crossing a railroad track in order to look and listen, unless stopping is necessary to make looking and listening effective. If the view is so obstructed that he cannot see, he should carefully listen, and a failure to do so will as a matter of law be declared negligence. But he is not necessarily required by the fact that his view was obstructed to stop the vehicle in which he is riding before entering upon the railroad crossing. If he is in a position to hear warning signals, which he has a right to expect will be given, and listening, hears none, and slowly and attentively enters upon the crossing, it cannot be said that he is guilty of contributory negligence in not so stopping to listen; but, if it appears that he could have heard the train had he so stopped, he is chargeable with negligence which `precludes his recovery. Monroe v. Chicago & A. R. Co., 280 Mo. 483, 219 S. W. 68; Shaffer v. C., R. I. & P. R. Co. (Mo. Sup.) 254 S. W. loc. cit. 262; Donohue v. St. Louis, I. M. & S. Ry. Co., 91 Mo. 363, 2 S. W. 424, 3 S. W. 848; Petty v. Hannibal & St. Joseph Ry. Co., 88 Mo. 306; Campbell v. St. Louis & Sub. Ry. Co., 175 Mo. 172, 75 S. W. 86; Stepp v. St. Louis, San Francisco Ry. Co. (Mo. Sup.) 211 S. W. 733; Killingsworth v. Kansas City, C. & S. Ry. Co. (Mo. App.) 209 S. W. 303; Stepp v. C., R. 1. & Pac. Ry. Co., 85 Mo. 235; Weller v. C., M. & St. P. Ry. Co., 120 Mo. 645, 23 S. W. 1061, 25 S. W. 532; Mitchell v. Railroad, 122 Mo. App. 58, 97 S. W. 552; ...