Dincler v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 31 December 1923
• Docket Number: No. 14723.,14723.
• Citation: 265 S.W. 113
• Parties: DINCLER v. CHICAGO, M. & ST. P. RV. CO. et al.
• Court: Missouri Court of Appeals

265 S.W. 113

DINCLER v. CHICAGO, M. & ST. P. RV. CO. et al.

No. 14723.

Kansas City Court of Appeals. Missouri.

December 31, 1923.

Dehearing Denied October 9, 1924.

Appeal from Circuit Cohrt, Daviess County; Arch B. Davis, Judge.

"Not to be officially reported."

Action by Benjamin 0. Dincler against the Chicago, Milwaukee & St. Paul Railway Company and another. Prom a judgment for plaintiff, defendants appeal. Affirmed.

Fred S. Hudson, of Kansas City, for appellants.

A. G. Knight, of Trenton, and Kelly, Buchholz, Kimbrell & O'Donnell, of Kansas City, for respondent.

BLAND, J.

This is an action in two counts, brought against the defendant railway and its engineer, who was operating its train at the times hereinafter mentioned. The first count is brought under the death statute (section 4217, R. S. 1919), for the negligent killing of plaintiff's wife, and the second is for damages to plaintiff's automobile, caused by the negligence of the defendants. There was a verdict in the sum of $5,000 on the first count and $450 on the second.

The suit grew out of a collision between one of defendant's freight trains and an automobile owned by the plaintiff. The catastrophe happened at what is known as McKee's crossing on defendant's railroad in Clay county, Mo., near Excelsior Springs. The collision occurred on October 4, 1921, about 3 o'clock in the afternoon of a clear bright day. The automobile contained plaintiff's wife and daughter, Mrs. Hart. The collision resulted in the death of plaintiff's wife and injuries to Mrs. Hart. Defendant's railroad at this point runs substantially east and west and was crossed by a much traveled public road, running north and south. Deceased and her daughter were in a Ford touring car going north. The daughter was driving and was seated on the left side of the car. Deceased was in the front seat and on the right-hand side of the car. The train came from the east.

Going toward the north and approaching the crossing, the road comes up an incline for nearly a quarter of a mile until it gets nearly to the crossing, where the ground was practically level and remained so to a point where it crossed the track and a distance beyond. At the crossing the road was very rough and was in bad condition. The crossing boards were below the surface of the road and the rails. Defendant's railroad track eastward from the crossing curved around toward the north; 400 to 500 feet northeast of the crossing it disappeared into a deep cut, which obscured the view of an approaching train from one at and south of the crossing.

Mrs. Hart testified that she drove up to the crossing at the rate of two miles per hour, looking all the time for a possible approaching train. She saw no smoke and heard no noise of a train, nor any signal. When the front wheels of the automobile were within 12 feet of the south rail of the track, she stopped her car for a minute, with its engine running, and looked first east and then west. Her view was obstructed by the cut so that she could not see a train approaching from the east. Hearing no train and seeing none in sight, she started across the track. When she had progressed to where her front wheels were in the middle of the track, the train loomed up before her. It was then some distance out of the cut. She gave the motor more gas but the train seemed "to fall" on her, and the car was struck when its front wheels were 2 or 3 feet north of the north rail. The train consisted of from 40 to 50 cars and was approaching from the east at a rate of speed which the witnesses gave as from 30 to 45 miles per hour. For quite a distance east of the cut to the crossing, and beyond, is somewhat down grade.

Mrs. Hart further testified that after she started her automobile she continued to cross at a rate of speed of two miles per hour. The car was struck at the right rear wheel. On approaching the track, before the car stopped, her mother cautioned the witness to drive slowly, but said nothing further at any time. The evidence shows that deceased was 51 years of age and a woman of good eyesight and hearing, and in full possession of her faculties. Both occupants of the automobile were familiar with the crossing. There was evidence on the part of a number of witnesses that no signal of any kind was given of the approach of the train within one-fourth of a mile or more of the crossing, and that the statutory signals were wholly absent.

Defendants make the point that the court should have sustained its demurrer to the evidence, on the ground that plaintiff made out no case under the crossing case rule, for the reason that plaintiff was guilty of contributory negligence as a matter of law, and on the further ground that there was no case made under the humanitarian doctrine. But defendants' demurrer to the evidence was general and not specifically directed to the crossing case theory, and, as defendants had the court to give instructions on the crossing case theory, they are estopped to deny that a case was made on that theory. Torrance v. Pryor (Mo. Sup.) 210 S. W. 430. If it were not for this condition of the record, in view of the decision of the Supreme Court in the case of State ex rel v. Bland (Mo. Sup.) 237 S. W. 1018, and other cases, announcing the rule that, where the view of one approaching a railroad crossing is obstructed, the duty to look is a continuing one, we would be in grave doubt as to whether any case was made under the crossing case rule. While the negligence, if any, of the driver of the car is not to be imputed to deceased, the latter was under the duty to exercise ordinary care for her own safety. Jepson v. Transfer Co., 211 Mo. App. 366, 243 S. W. 370.

We think that plaintiff was entitled to recover under the humanitarian theory. In addition to the evidence already stated, the facts show that the engineer was seated upon the right side of the cab and the fireman and a brakeman on the left. The engineer testified that, on account of the fact that his boiler protruded about 22 feet in front of him, and the curve in the track, he was unable to see to the south of the crossing, except for a short distance after he emerged from the cut and a few feet before the collision. He testified that he did not see the automobile until the front end of the engine was within 12 feet of it, and at...