Dale v. Smith

• Decision Date: 21 February 1916
• Docket Number: No. 11862.,11862.
• Citation: 185 S.W. 1183
• Parties: DALE v. SMITH et al.
• Court: Missouri Court of Appeals

185 S.W. 1183

DALE v. SMITH et al.

No. 11862.

Kansas City Court of Appeals. Missouri.

February 21, 1916.

Rehearing Denied May 1, 1916.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

"Not to be officially published."

Action by Harry C. Dale against Charles H. F. Smith and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Frank Hagerman and Rozzelle, Vineyard & Thacher, all of Kansas City, for appellants. Morrison, Nugent & Wylder, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff was injured at a street crossing in Kansas City, Kan., in a collision between a team of horses he was driving and a train on defendants' railroad, and sued to recover his damages on the ground that they were caused by negligence of the servants of defendants in the operation of the train. The answer, in addition to a general denial and a plea of contributory negligence, attacked the constitutionality of a city ordinance alleged in the petition to have been negligently violated. A trial of the issues resulted in a verdict and judgment for plaintiff. An appeal was allowed defendants to the Supreme Court, but on the filing by the parties of a stipulation withdrawing the constitutional question the case was transferred to this court. The ordinance required the bell to be rung while a locomotive was "moving through the city," and further provided that no train should be run across certain named streets, including Third street, at a greater speed than 6 miles an hour.

The collision in question occurred at the crossing of Third street at 7:45 o'clock in the evening of March 10, 1909, while plaintiff, whose hearing was slightly impaired, was driving south on that street in a covered delivery wagon. The horses were at the crossing when plaintiff first discovered the locomotive, which was east-bound, and was drawing a short passenger train consisting of a baggage car and two coaches. He tried to escape by turning the horses to one side, but the locomotive, running, as he and his witnesses state, at 20 miles an hour, struck and killed one of the horses. In some way the wagon was overturned, and plaintiff was injured.

The principal contention of counsel for defendants is that the demurrer to the evidence should have been sustained on the ground that plaintiff was guilty in law of contributory negligence. The facts in evidence bearing on that issue thus may be stated: Approaching in reverse curves from a general northwesterly direction, the railroad track crosses Third street obliquely. It is on low ground with a much higher background to the west and south. Third street runs due north and south, and is crossed at right angles by New Jersey avenue, an east and west street, 191 feet north of the railroad crossing. Some distance west of this street intersection the railroad track enters New Jersey avenue, and a person driving south on the west side of Third street, as plaintiff states he was doing, could see the track at that place while crossing New Jersey avenue. His view to the west would be obstructed after that by a narrow frame office building at the southwest corner, but would be unobstructed after he passed that building until he came in front of a frame dwelling house facing Third street at the northwest corner of the intersection with the railroad track. A narrow yard south of this house afforded a view to the west except for a close board fence on the property line near the track which was high enough to obscure the lower portion of an approaching engine. This fence was as close to the track as it could be set to permit the free passage of trains. Third street was paved, but it had been raining, and the pavement was wet and muddy. Plaintiff states that after crossing New Jersey avenue and passing the frame office he stopped where the open space permitted a view westward and looked, but saw no train. There was an arc light at the railroad crossing on Third street and one a block west, but it was very dark along his line of vision, and these lights were of little, if any, use. He was about 150 feet from the crossing when he stopped and looked. Seeing or hearing no train, he started forward in a slow trot, which he reduced to a walk as he neared the crossing. The rear end of the dwelling house was nearer the track than the front end, and was not more than 9 or 10 feet away. It is a fair inference that plaintiff emerged from behind that obstruction when his horses' heads were about 10 feet from the track, and, if conditions had been favorable, could have seen the locomotive, which could not have been more than 50 feet from the point of collision. He states that he looked first to the east and then to the west, but did not discover the locomotive until his horses' heads had entered its pathway. The locomotive then was so close that the only thing he could do was to try to turn the horses out of its way.

There is substantial evidence that the whistle was not sounded, the bell was not rung, the headlight was not burning, the speed was at least 20 miles an hour, and that the train was coasting (i. e., the steam was shut off), and was making but little noise. These facts are all disputed by defendants' witnesses, but for the purposes of the present inquiry we must treat them as the real facts in the case, unless they are so unreasonable as to be unworthy of acceptation by reasonable minds.

Counsel for defendants argue that the statement of plaintiff that he looked to the west through the open space and afterwards when he had passed from behind the dwelling house and saw no train cannot be true, since the train must have been in plain sight, and that...