Dickey v. Wabash Ry. Co.

Decision Date08 May 1923
Docket NumberNo. 17838.,17838.
Citation251 S.W. 112
PartiesDICKEY v. WABASH RY. CO. et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

"Not to be officially published."

Action by Florence Dickey against the Wabash Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed.

A. C. Whitson, of Mexico, Mo., and Homer Hall, of St. Louis, for appellants.

Rodgers & Buffington, of Mexico, Mo., tar respondent.

DAUBS, J.

This is an action under section 4217, .R. S. 1919, for the alleged wrongful death of plaintiff's husband by being struck by a passenger train of the defendant railway company. Plaintiff obtained a judgment for $5,000, from which the defendant appeals.

The defendant Butterly was the engineer operating the locomotive at the time of the accident. In our discussion we will treat the case as though the Wabash Railway Company alone were the defendant.

On the morning of December 3, 1920. plaintiff's husband, while driving a Ford automobile over defendant's railroad tracks at a public crossing in the village of Thompson, Audrain county, was struck and killed by one of defendant's fast passenger trains. At this crossing there are two sets of tracks running parallel. The tracks run east and west. The public road upon which the deceased was driving runs north and south, intersecting the tracks at right angles. The village of Thompson lies on both sides of the railroad right of way. The northern three tracks belong to the Chicago & Alton Railroad, the southernmost three tracks to the defendant Wabash Railroad, so that there are three tracks close together on the north side of the right of way belonging to the C. & A., and three tracks on the south side of the right of way belonging to defendant, the main line of the C. & A. being on its southernmost rails, and the main line of the Wabash being on its southernmost rails.

Immediately north the right of way, and running parallel to the C. & A. tracks, is a public highway which intersects the roadway which constitutes the crossing. The distance between the farthest north track of the C. & A. and the farthest south track of the Wabash is 120.6 feet, and the distance between the southernmost track of the C. & A. and the nearest or northernmost Wabash track is 76.6 feet. A depot maintained by both roads is situated about middleways between the north track of the Wabash and the south track of the C. & A., 96.6 feet east of the center of the public highway crossing the tracks, which public highway is known as the North and South road. There are open stock pens on the north side of each of the two sets of tracks. On the C. & A. the open stock pens begin 66 feet west of the center of said North and South road, and extend some 250 feet west, and at the west end of these open pens there were two stationary box cars, making a further extension of about 63 feet. At the time plaintiff's husband was killed there were two or three stock cars standing on the farthest north C. & A. track, and extending out to within 12 or 14 feet of the crossing, so that there was an open space of about 14 feet to the west of the crossing. Some of the pens were open and some were covered with roof; the height of the pens being about 7 feet.

Now, taking up the Wabash tracks, there were stock pens about 7 feet high along the north side of the Wabash tracks. The Wabash stock pens begin with a wing fence at the east end and start at a point 129 feet west of the center line of the crossing. The wing fence and the pens continued west along the tracks about 279 feet, and on this date two or three Wabash box cars were standing near the west end of the stock pens, and there were also hopper coal cars on the north tracks of the Wabash extending to a point 17½ feet west of the roadway crossing. To better identify the Wabash tracks, the first or farthest track is spoken of as the house track, the middle track the passing track, and the third or southern track the main line. The distance from the center of the Wabash, main line track is 14 feet, and from the center of the passing track to the center of the house track, which is farthest north, the distance is 12.7 feet, making a distance from the center of the main line track to the center of the house track on the Wabash line of 26½ feet. A measurement made by defendant, and accepted by plaintiff as most favorable to her side of the case, shows that the distance from the south side of the east coal car standing on the Wabash house track (north track) next to the roadway to the north rail of the Wabash main line track was 19.65. The North and South road, or crossing, was 36½ feet wide.

The time of the accident was 11 o'clock in the morning. Dickey approached the crossing, driving east along the highway, which parallels the tracks, and when he reached the North and South roadway which intersects the road he turned south into it. He drove over the first or north rail of the C. & A. tracks. Whether his view at that point was obstructed by reason of the box cars and stock pens along the C. & A. tracks is a contested question. There is evidence on the part of plaintiff that the line of vision was obscured until one had cleared the box cars on the C. & A. tracks. It is conceded that after deceased cleared the box cars and came south of the C. & A. tracks it was possible for him for a brief space to see a train on the Wabash tracks coming from the west, and this is the direction from which the train came that killed him, though there was evidence adduced by plaintiff that there were two cuts west of Thompson on the Wabash main line, and that while the train was in these cuts one could not see the train from this point. These cuts were about a quarter of a mile west of the village on the Wabash line. Deceased was seen to look east, then west, when he first came up to the C. & A. tracks. In approaching the crossing and getting over same until the contact came, he was driving 10 to 15 miles an hour. As he was about to enter the C. & A. crossing, defendant's witness, David Faucett, hailed Dickey by throwing up his hand and whistling to him to attract his attention. The deceased threw up his hand, but went straight on without in any wise slackening the speed of his car. There is evidence that a boy also whistled to the deceased as he went...

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