Coby v. Quincy, Omaha & Kansas City Railroad Company
| Decision Date | 17 November 1913 |
| Citation | 161 S.W. 290,174 Mo.App. 648 |
| Parties | PEARL COBY, Appellant, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Adair Circuit Court.--Hon. Nat M. Shelton, Judge.
AFFIRMED.
Judgment affirmed.
C. E Murrell and Alex Doneghy for appellant.
J. G Trimble and Campbell & Ellison for respondent.
Plaintiff was injured in a collision between an automobile, in which he was riding as a guest, and a train running on defendant's railroad. The place of the collision was where the railroad crosses Franklin street in the city of Kirksville. This street runs north and south, and is much traveled. Defendant's passenger station is just west of the street and is on the south side of the main railroad track. Three switch tracks diverge from the main track at a point about one hundred and fifty feet east of the street and run westward across and beyond it. The first of these tracks is about thirty feet south of the main track and the last about thirty feet further south. The railroad runs over a long trestle bridge the west end of which is from 350 to 400 feet east of Franklin street. A westbound train, consisting of a locomotive, nine freight cars and two passenger coaches, struck the automobile which was running north on Franklin street and plaintiff who was riding in the seat with the driver was thrown out and severely injured. For some reason plaintiff did not offer himself as a witness and we must look to the testimony of the driver for the principal facts on which he relies for a recovery.
The petition charges that the injury was caused by negligence of defendant in failing to give statutory signals as the train approached the crossing, in failing to provide the locomotive with a proper headlight, in running the train in excess of seven miles per hour, the maximum speed allowed by a city ordinance, and that the injury was caused by a negligent breach of the duty defendant owed plaintiff under the humanitarian or "last chance" rule. The answer contains a general denial and the allegation that plaintiff was a minor at the time of the commencement of this suit and, therefore, was not competent to maintain the action. At the conclusion of the evidence introduced by plaintiff, defendant asked a peremptory instruction which was refused. Defendant offered no evidence, the case was submitted to the jury on the evidence of plaintiff and the jury returned a verdict for defendant. Plaintiff appealed and complains of the instructions given at the request of defendant as being equivalent to a demurrer to the evidence. The answer of counsel for defendant is that the evidence of plaintiff failed to make a case to go to the jury and that its request for a demurrer to the evidence should not have been overruled for the reason that plaintiff is shown to have been guilty in law of negligence that contributed to his injury.
Plaintiff a young negro of no particular vocation, was invited by the driver of an automobile, a liveryman, to accompany him on a trip to a near-by town. The invitation was prompted partly by the selfish motive of having a willing and able helper should tire or other troubles be encountered on the trip. They left the public square at 9:40 in the evening and drove north on Franklin street to the crossing in question which is seven blocks from the public square. They knew the westbound train was overdue and might arrive at any moment. Hacks, express wagons and other vehicles were standing at the station just west of the street waiting for the arrival of the train. As it approached the crossing the speed of the car was reduced to four or five miles per hour and without stopping it proceeded over the crossing at that speed. Houses and other obstacles on the east side of the street shut off their vision in that direction until they came to a point ten or fifteen feet south of the south switch track and about seventy feet south of the main track on which the train approached. There was a break in the obstructions at that point for a distance of fifteen feet or more that afforded a clear view of the track for a distance estimated by Carothers, the driver, as being 700 or 800 feet east of Franklin street and about 100 feet east of the long trestle bridge. The driver states he looked eastward while traveling by that open space and listened but saw and heard nothing of the train. Then his view was shut off by two freight cars standing on the first switch track, a telephone pole and a pile of lumber, and he could not see eastward until he reached a point ten or twelve feet south of the main track. Then he saw the locomotive about sixty feet away advancing at a speed of twenty miles per hour. The front end of his car at that moment was from four to six feet from the track and as the car could not be stopped in a place of safety, the driver swerved to the left in the hope of being able to avoid the oncoming engine. The movement was unsuccessful and the collision followed. During all this time plaintiff sat in the front seat without making an effort to escape though there was no door or other obstacle to prevent him from stepping to the street and the speed of the car would not have been a serious hindrance to such attempt. The locomotive carried a headlight but the driver and another witness say that it was dim and cast no glare along the track. There is some evidence to the effect that aside from giving the station whistle the engine gave no signal by bell or whistle of...
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