Burton v. Chicago & A. Ry. Co.

• Decision Date: 05 May 1913
• Citation: 176 Mo. App. 14,162 S.W. 1064
• Court: Missouri Court of Appeals
• Parties: BURTON v. CHICAGO & A. RY. CO.

162 S.W. 1064

176 Mo. App. 14

BURTON v. CHICAGO & A. RY. CO.

Kansas City Court of Appeals. Missouri.

May 5, 1913.

Rehearing Denied June 16, 1913.

On Motion to Certify to Supreme Court, January 19, 1914.

1. WITNESSES (§ 402)—RIGHT TO CONTRADICT OWN WITNESS.

Plaintiff is not concluded by the evidence of defendant's employés, introduced by plaintiff as witnesses, but may make out a case contradictory to facts testified to by them, though he cannot impeach their testimony.

2. APPEAL AND ERROR (§ 934)—FINDINGS— CONCLUSIVENESS.

The appellate court must assume as the facts of the case those which respondent's evidence tend to establish as well as every reasonable inference therefrom.

3. RAILROADS (§ 348)—CROSSING ACCIDENTS —ACTION—SUFFICIENCY OF EVIDENCE.

The evidence, in an action against a railroad company for decedent's death at a highway crossing, held to sustain a finding that the engineer could have seen decedent, in the exercise of ordinary care, while the engine was from 420 feet to 600 feet from the crossing.

4. RAILROADS (§ 348)—CROSSING ACCIDENTS— SUFFICIENCY OF EVIDENCE.

Evidence, in an action against a railroad company for decedent's death at a highway crossing, held to sustain a finding that the train could have been stopped, in the exercise of ordinary care, in time to have avoided the collision.

5. RAILROADS (§ 338)—CROSSING ACCIDENTS —CONTRIBUTORY NEGLIGENCE—HUMANITARIAN DOCTRINE.

Rev. St. 1909, § 5425, permitting a railroad company to show decedent's negligence "as a defense" to an action for death on the track, did not obviate the humanitarian doctrine.

6. EVIDENCE (§ 553)—CROSSING ACCIDENTS—NEGLIGENCE—STOPPING TRAINS.

Questions as to the time within which a passenger train could have been stopped at a highway crossing to prevent a collision should have included the hypothesis of due regard to the safety of the passengers.

7. APPEAL AND ERROR (§ 231)—PRESENTED BELOW—SPECIFIC OBJECTIONS.

Appellant cannot complain on appeal that a question as to the time within which a passenger train could have been stopped at a highway crossing did not embrace the hypothesis of due regard to the safety of the passengers, where it did not make that specific objection to the question at trial.

8. EVIDENCE (§ 150)—DEMONSTRATIVE EVIDENCE.

To make demonstrative evidence, such as the distance a headlight will reach, valuable, it is necessary that the conditions at the time of the demonstration be substantially the same as at the time of the accident.

On Motion to Certify to Supreme Court.

9. APPEAL AND ERROR (§ 231)—PRESENTATION BELOW.

One objecting to a question must state the specific ground of objection and is confined on appeal to the objections specified at trial.

10. APPEAL AND ERROR (§ 1050)—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Any error, in a question as to the time within which a passenger train could have been stopped at a highway crossing, in not embracing the hypothesis of due regard to the safety of passengers in stopping the train, was not reversible where it appeared from the evidence that the safety of passengers was understood to be considered in the answers given.

11. APPEAL AND ERROR (§ 1052)—HARMLESS ERROR.

Any error, in a hypothetical question, as to the time within which a passenger train could have been stopped, in not embracing the hypothesis of due regard as to the safety of passengers, was not prejudicial where the undisputed evidence showed that the engineer did everything possible to stop the train as soon as possible.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by Levi T. Burton against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed as modified.

W. P. Cave, of Moberly, and Scarritt, Scarritt, Jones & Miller, of Kansas City, for appellant. Aubrey R. Hammett, of Huntsville, for respondent.

ELLISON, P. J.

Plaintiff is administrator of the estate of May Burton, deceased, and brought this action to recover damages on account of the death of the intestate, which he charges was occasioned by the negligence of defendant's servants. The judgment in the trial court was for the plaintiff.

It appears that deceased, a young man about 20 years of age, in company with two other young men attended a fair at Fayette, Mo., on the 18th of August, 1911. They remained until past midnight, when they started for home, a distance of perhaps 15 miles, in a one-horse buggy. They had been drinking to excess and fell asleep on the way; but the horse, being gentle and seeming to know the road, kept on his way in a walk. One of the survivors (the other was not a witness) testified that, when they got about nine miles out from Fayette and one mile from where defendant's road crossed the public road, he aroused himself, and, observing the same steady gait of the horse and that his companions were not awake, he again went to sleep. It seems the horse proceeded on to the crossing where deceased was killed, arriving there at about 3 o'clock a. m. At that time one of defendant's west-bound passenger trains was approaching at a speed of 40 to 50 miles an hour, and as the horse and buggy got upon the track they were struck by the engine; deceased being killed and the other two hurt.

The negligence of deceased and his companions is conceded, and the case is bottomed entirely upon the humanitarian rule. The catastrophe happening at a crossing, the question, under the rule, is: Did defendant's servants, in charge of the engine pulling that train, see the peril of deceased, or could they have seen it, had they been in the exercise of proper care, in time to have stopped the train?

It was a starlight night; the engine was equipped with the best of air brakes and a powerful headlight. Plaintiff's intestate being killed, his two companions being asleep, and the time being 3 o'clock in the night, he was left without eyewitnesses, unless he called upon the engineer and fireman of the engine. And he did so. The engineer stated that, though on the lookout, he did not see the men in the buggy, but only the horse, and that when only 60 feet away, and that then, knowing he could not help striking the horse, he shut off steam, applied emergency brakes, and did everything in his power to save the train from ditching; that he struck the horse and succeeded in stopping the train about 600 feet beyond; that he walked back and for the first time knew of persons being in the buggy. He described a curve in the road and stated that a number of freight cars stood on a "siding," and that these things, together with the length and height of the engine boiler, prevented him from seeing sooner than he did from his lookout in the cab.

While the fact that plaintiff introduced these servants as his witnesses prevents him from impeaching them, yet their testimony does not conclude him on the facts. He may show things from other sources and make out a state of case, even though altogether contradictory of what they have said. Brown v. Wood, 19 Mo. 475; Helling v. United Order, 29 Mo. App. 309; Dunn v. Dunnaker, 87 Mo. 597. In the latter case the distinction between impeaching one's own witness and showing matters contrary to what such witness has testified to is mentioned, And this plaintiff proceeded to do. He had three witnesses go to the crossing at the same time of night and on the same kind of night, and, while a man in a buggy with horse attached was upon the crossing, they were stationed up the track at a point 460 feet away, and, as the headlight first lighted up the crossing so that they could see the man sitting in the buggy, the engine of an oncoming train was 60 feet further away, thus making the distance of the engine from the crossing, when the headlight first came upon it, about 520 feet. One of these witnesses stated the engine to be some further from where he stood, which, added to the distance he was from the crossing, would be about 600 feet. We assume the reason they could not measure the exact number of feet was that, while they were stationed up the track and observed the first lighting of the crossing, they would turn their heads quickly to catch the point or place where the engine was at that instant and then afterwards measure to that place. Any difference in the point they caught the engine would make a difference in that estimate. Taking this part of the testimony in its most favorable view for plaintiff, as we must, it would be fair to say that the jury could consider the test as showing the headlight of the engine was upon the crossing when the engine was about 600 feet away.

But, in addition to this, the engineer himself stated that when he first saw the horse he was 60 feet away and had gotten over the track. And the fireman testified that, when he walked back after the train had been stopped, he found the horse, buggy, and boys in a pile, all near together between the main and side tracks, but did not know how far they had been knocked from the crossing. This shows that the buggy itself was on the track at the moment of collision. The horse approached the track from the south, and the engineer coming west, with a slight curve in the track, it had a tendency to throw the broad light of the headlight of the engine, while and before it reflected on the crossing, onto the road south of the crossing and thus to have reflected upon the horse and buggy, or one of them, before they reached the track. Connecting this with the statement of McDonald, a civil engineer who testified that the curve was a two-degree curve and that he made tests of distances from the crossing east (the direction from which the train came), we find that a man on the track at the crossing could be seen, and also that he could be seen a distance of 20 feet south of the track at the crossing. He put the engineer's position on the north side of the engine cab as the same for seeing ahead as a man's would be who was standing 4 feet north of the north...