Donaldson v. The Missouri Pacific Railway Co.

• Decision Date: 06 January 1908
• Parties: JAMES L. DONALDSON, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

107 S.W. 36

128 Mo.App. 245

JAMES L. DONALDSON, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 6, 1908

Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.

AFFIRMED.

Judgment affirmed.

Elijah Robinson for appellant.

(1) The trial court committed error in permitting plaintiff and his witness Ridenour to express an opinion as to the speed of the train. Muth v. Railroad, 87 Mo.App. 422. (2) The court should have directed a verdict for the defendant. Harlan v. Railroad, 65 Mo. 25; Railroad v Henry, 76 Mo. 293; Mathias v. Mayer, 90 Mo 583. (3) Plaintiff was guilty of the grossest kind of contributory negligence.

Joseph S. Rust for respondent.

(1) Plaintiff and witness Ridenour, both testified that they had been in the employ of railroad companies, lived near and were accustomed to seeing trains every day, and were accustomed to riding on trains, and we think under the decisions of this State thoroughly qualified themselves to express an opinion as to the speed of the train. Austin v. Transit Co., 105 Mo.App. 230. (2) Plaintiff and defendant both, by their instruction, plaintiff by its instruction numbered 2 and defendant by its instruction numbered 1, adopted the same theory of this case and we think it was certainly proper to submit to the jury the question as to whether or not the excessive speed of the train had anything to do with the accident.

OPINION

ELLISON, J.

--Plaintiff brought this action for injury to himself and his wagon by reason of a collision with one of defendant's trains.

It appears that plaintiff was engaged in Kansas City in hauling brick in a wagon drawn by two horses and in said work he passed over the road where it runs between the railroad track and a precipitous bluff, the space being quite narrow.

Plaintiff entered upon this portion of the road and after getting to perhaps the narrowest part he observed the approaching train. There was room for the train to pass without striking the wagon and it would have done so but that the horses, nervous or frightened at the passing train, jumped, or, as stated by defendant shied, suddenly to the left, which had the effect of turning one of the front wheels out so that the train struck it and overturned the wagon. The account of the affair given by plaintiff at different times was not the most satisfactory, but the parties practically agree that the occurrence is as we have stated.

There was evidence tending to show that the train was running at a much greater rate of speed than six miles per...