Corbin v. Kansas City, C. C. & St. J. Ry. Co.

• Decision Date: 25 May 1931
• Docket Number: No. 17221.,17221.
• Citation: 41 S.W.2d 832
• Parties: CORBIN v. KANSAS CITY, C. C. & ST. J. RY. CO.
• Court: Missouri Court of Appeals

41 S.W.2d 832

CORBIN v. KANSAS CITY, C. C. & ST. J. RY. CO.

No. 17221.

Kansas City Court of Appeals. Missouri.

May 25, 1931.

Rehearing Denied June 29, 1931.

Certiorari Denied July 30, 1931.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by W. F. Corbin against the Kansas City, Clay County & St. Joseph Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

E. A. Neel, of Kansas City, for appellant.

Hackney & Welch, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict against the defendant in the sum of $7500.00. However, the appeal is from a judgment in the sum of $5000.00 as plaintiff made an involuntary remittitur in the sum of $2500.00.

As one of the contentions made by defendant is that its instruction in the nature of a demurrer to the evidence should have been given, it is necessary for us to state the evidence, and all reasonable inferences that may be drawn therefrom, in the most favorable light to plaintiff and, as there is conflict in the testimony of plaintiff's own witnesses, their evidence likewise should be stated in its most favorable light to him. Frankel v. Hudson, 271 Mo. 495, 196 S. W. 1121. As defendant relies upon certain admissions made in plaintiff's deposition, in stating the evidence those admissions will not be considered by us in so far as they are contradicted by the testimony at the trial. Davidson v. St. Louis-San Francisco Ry. Co., 301 Mo. 79, 86, 256 S. W. 169; Clarkston v. Ins. Co., 190 Mo. App. 624, 176 S. W. 437.

The facts show that defendant operates an Interurban Electric Line between St. Joseph and Kansas City. Plaintiff was injured on March 9th, 1927, while riding as a guest in a west-bound automobile which was struck by one of defendant's south-bound interurban express cars at Northern Heights, an unincorporated village located about 8 miles north of Kansas City. At the place in question the single track road of defendant runs in a northwesterly and southeasterly direction. It is straight for a mile or more in both directions. It is crossed by an unsurfaced public road 50 feet in width. About 30 feet north of the road and 10½ feet east of the track and parallel thereto is situated a shelter house boarded completely up on its north side. The public road in question comes down from the north on the east side of the track and turns to cross the track about 20 or 30 feet due east of the crossing. Before turning the road runs due north and south. On account of the car tracks not running quite in a north and south direction this public road, before it turns to go over the crossing, approaches the same at an acute angle.

The evidence further shows that plaintiff was in the real estate and building business in Kansas City; that one Denison, a real estate man in said city, on the day in question, took plaintiff to view some suburban property lying east of the defendant's track in the vicinity of Northern Heights, with a view of interesting him in the development of the property. After looking over this property for about an hour they stopped at a point upon the road in question about 600 feet north of the point where it turns south of the shelter house to make the crossing. They remained there for about half an hour, looking at a house. They then proceeded south at a rate of speed of 12 or 15 miles per hour. Denison was seated in the front seat on the left driving the automobile and plaintiff was to his right on the same seat. They were talking about the real-estate development until they "got down to" the turn in the road in question. The conversation between them stopped as they "commenced to make" the turn. From the time that they approached the turn until after making it they were "creeping along," moving very slowly and may have momentarily stopped. On account of a ditch at the turn on the right hand side of the road it was necessary to make a sharp turn. After making the turn they proceeded to the track at a rate of speed of from 4 to 6 miles per hour. It is admitted that the distance from the turn to the track is 20 or 30 feet.

After going behind the shelter house the occupants of the automobile were unable to view the track toward the north until the front end of the automobile was 2 feet 3 inches from the nearest rail or 9 inches from the point where the outer edge of the car passed, the over-hang of the car being 18 inches. Denison testified: "I won't say whether it (the automobile) was on the track or almost to the track but it was practically on the track." It was at this point that the occupants of the automobile first saw the interurban car approaching. It was then about 600 feet to the north and proceeding at a rate of speed, estimated by various witnesses, of from 45 to 75 miles per hour. It was impossible to stop the automobile in less than four or five feet. So it proceeded on over the first rail of the crossing. At this time, Denison, thinking that he could drive on ahead and out of the way, shifted the gears of his automobile into second speed but he found that he was unable to get over the plank of the far or west rail. He then backed up and was unable to get the front wheels over the plank of the east rail. He was excited and killed his engine. The evidence further shows that the plank of the east rail extended above the rail 2 or 3 inches and there was a hole between the rails 4 or 5 inches below the top of the west plank. The interurban car did not slacken its speed or sound any warning, in approaching the crossing, but came on and struck the automobile, hurling it 75 feet and throwing the occupants therefrom.

The evidence further shows that plaintiff was wholly unfamiliar with the crossing, not having been in the neighborhood before. He knew that the interurban ran in the vicinity but did not become aware of the location of the track until he saw a line of telegraph and trolley poles after the automobile started up 600 feet north of the turn.

As to the visibility of the occupants of the automobile as it approached the turn in the road, the evidence most favorable to plaintiff shows that the turn was south of the shelter house and one in making the turn could not see the track to the north (plaintiff's exhibit 1); that at no time could one look up the track except he turned his head and looked back; that while there was a window in the rear of the automobile, which was an open one without curtains in place except around the back up even with the front of the rear seat, the window did not afford a view of the track; that there were trees, brush and out-buildings outside of the right of way fence and adjoining the same on the east side of the track that obscured plaintiff's view in approaching the turn.

The evidence further shows that the track of the defendant north of the shelter house is laid in a depression, which the record discloses was not of sufficient depth to be called a "cut," but was referred to as an embankment. It was of sufficient depth to obscure the lower part of an interurban car.

Plaintiff testified that when he arrived at a point east of the shelter house he turned and looked back north or northwesterly up the track; that on account of the obstructions present he could see only "a block or a little less." Denison testified that they might have stopped before reaching the shelter house and seen up the track 500 or 600 feet; that had plaintiff turned around and looked "just at the time of the turning, he could have seen the car approaching 600 or 700 feet." Plaintiff's witness, Anderson, testified:

"Q. (Mr. Welch) I want you to state your recollection of what obstructions, if any, in the way of trees, houses and the like of that was there between this road on the east side of the track and the track itself? A. There is only one visible part of the track in photograph marked exhibit E, and that is where the man is standing on the track.

"Q. About how far from the crossing? A. Well, I should judge 600 or 700 feet."

Defendant insists that in so testifying Anderson was speaking of a view of the track from a point up the road 600 or 700 feet from the crossing. The testimony is somewhat ambiguous and should have been elucidated by counsel at the trial. However, as will be hereinafter seen, the points raised in this appeal may be disposed of without considering this testimony.

Plaintiff testified that he was constantly looking to the north and listening for the possible approach of an interurban car, except for an instant when he made one look to the south; that he saw or heard nothing until he emerged from behind the shelter house when he saw the car approaching 400 to 600 feet away. At this time he called out "here comes a car." The front wheels of the automobile were then on the track.

Denison testified that "just as soon as he got from behind the" shelter house he heard a whistle and saw the car coming 400 to 600 feet away, approaching at a speed of 75 miles per hour.

While plaintiff was unacquainted with the crossing in question, Denison was thoroughly familiar with it and knew that express trains, such as the one in question, came over the crossing at a high rate of speed without stopping and, in fact, that this was not a stopping point for such cars.

Denison testified that in going around the "north east" corner of the shelter house, "I didn't make a special effort to look up but a reasonable look as one ordinarily would at such a point but I didn't stop and make a special effort"; that when they were "east" and "northeast" of the shelter house "I don't think we turned around and looked up the track." On the question as to whether he was listening for the possible approach of the car as he made the turn, he answered, "reasonably so" and that he heard nothing. In explaining what he meant by "reasonably so," he said:

"I had in mind that there was a track there...