Dyer v. K.C. So. Ry. Co.

• Decision Date: 17 February 1930
• Docket Number: No. 4666.,4666.
• Citation: 25 S.W.2d 508
• Court: Missouri Court of Appeals
• Parties: PEARL DYER, APPELLANT, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, A CORPORATION, RESPONDENT.<SMALL><SUP>*</SUP></SMALL>

25 S.W.2d 508

PEARL DYER, APPELLANT, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, A CORPORATION, RESPONDENT.^*

No. 4666.

Springfield Court of Appeals. Missouri.

Opinion filed February 17, 1930.

Appeal from the Circuit Court of Jasper County, Division No. 2. — Hon. Grant Emerson, Judge.

REVERSED AND REMANDED.

Norman & Norman for appellant.

Cyrus Crane, Hugh S. Martin, W.H. Woodson and Ray Bond for respondent.

SMITH, J.

Plaintiff brought suit against the defendant for injuries received by her in Jasper county in a collision of her automobile with an engine of the Kansas City Southern Railway Company. The trial court sustained a demurrer to the evidence at the close of plaintiff's case and she appealed. This necessitates a careful consideration of the evidence in the most favorable light to the plaintiff, since it is conceded that the only question for consideration here is the sustaining of the demurrer.

The injury occurred January 13, 1928, in the forenoon, at a place where defendant's track crosses 20th street, which street runs east and west in Joplin.

Considering the testimony most favorable to the plaintiff we find the following: William Nichols, Jr., testified that at the time of the accident he was working about 100 yards east of the track and that a short time before the accident he saw a touring car going west over the crossing, the train was then a block and one-half away, and before the accident his attention was called to another car going west over the crossing. The second car got clear of the track about ten feet. As the second car got clear of the track on the west side he could see the top of another car coming from the west, which swung slightly to the right and then back on to the track. The train knocked the car clear of the track and caused it to make a complete turn. The train did not stop immediately. He ran from where he was standing to the collision and the train had not stopped when he got there. He did not hear any signal from the train, either the bell or whistle. He said the westbound car had gotten ten feet on the west side of the track when Mrs. Dyer's car turned onto the track. Her car and the westbound car passed each other about ten feet west of the track. There was no obstructions to keep the train crew from seeing the cars. If bell was ringing he never heard it and never heard the whistle at all. It was quiet out there and nothing to keep him from hearing it.

Mrs. W.A. Cox testified that she was standing south of her house near the track facing the crossing and there were no obstructions between her and the crossing, and that she saw the collision. Mrs. Dyer was driving east. The train was coming from the south going north. Prior to the collision she had seen another car crossing the track going west. At the time she saw train coming 150 feet away and saw Mrs. Dyer's car coming from the west, possibly 150 feet away. From the time she saw train until it crossed crossing it did not blow whistle or ring bell. She said positively the bell was not ringing and the whistle was not blowing. The track is down grade as it comes to the north and the train was just coasting, not working steam, and that there was no perceptible slackening in the speed of the train before it struck.

Mrs. Viola Hall testified that she saw the accident and saw the automobiles and that she saw Mrs. Dyer turning out of the road for the automobiles to pass her and after turning out Mrs. Dyer proceeded on and in getting back in the road she was thrown right in front of the train and she saw the train strike Mrs. Dyer. She says that from the time she first saw the train until the crash that she knew positively the bell did not ring and the whistle did not blow and there was no perceptible slackening in the speed of the train. It was coasting and going at a high rate of speed on a down grade. She saw the two cars meeting Mrs. Dyer and that in passing both of them she had to turn out of the road. They were coming much faster than Mrs. Dyer. She had to turn out to the ditch to pass because they did not give her the road. She was driving at a moderate rate of speed and did not speed up any.

Harry M. Fisher testified that he was a machinist by trade and was watching the movement of the train and that the speed of the train was about twenty-five miles per hour, and that he heard no whistle and that the bell on the engine was not rung until after the train had gone beyond the crossing, about a block, and it then began to ring. He knew positively for he was looking at the train and watched it for a while.

George E. Long testified that he was driving on the road a block or more east of the crossing and saw the train coming. The train was then about a city block away, about 450 feet, and he never heard the bell nor whistle. He remembered that everything was quiet that morning and that the train was making no noise. It was coming down the hill almost noiseless.

Dr. A. Benson Clark testified as to the injury of Mrs. Dyer and the treatment which he gave to her. That he found an abrasion on her head. She had symptoms of concussion. Her pulse was accelerated, highly nervous and complained of severe pain in her head.

Also Agnes Famuliner, a trained nurse, and Mrs. Shoemaker, and Dr. A.R. Snyder all testified as to the injury of Mrs. Dyer, but it is not necessary to set out their testimony for a determination of the questions involved here.

Jack Dyer, the husband of the plaintiff, testified that 20th street for a block or two on either side of the railroad crossing is a narrow graveled street and that it was awful rough on both sides of the gravel.

The plaintiff testified that she was thirty-six years old and was driving the car and had driven a car several years prior to the accident. She was going to her mother's and had just left home. That she was familiar with the streets and knew where the railroad tracks crossed 20th street. That the street out there was graveled with chat and is narrow and the closer she got to the tracks the narrower the graveled portion got, and that as she was driving along about Wisconsin street she was driving fifteen or twenty miles per hour, and when she got within about 200 feet of the tracks she looked up the tracks both ways and did not see the train coming, but looking east she saw a car coming down the road pretty fast, near the center of the road. He had crossed the track and she did not think the driver saw her. He was coming pretty fast in a Ford and the Ford was jumping around. She noticed the man was near the center of the road, and he had curtains on his car and she was afraid with these side curtains on that the man would not see her and she pulled over further than she should. And then as she pulled back into the road there was another car coming which seemed to be coming faster. After she looked for the train when she had passed a little garage about 200 feet from the crossing she did not look any more in either direction for the train. Her attention was drawn to the first car approaching her with the side curtains on, near the center of the road, which forced her over off the graveled portion to the rough part of the street. She had then slowed down to seven or eight miles per hour and then as she pulled back onto the graveled portion of the road she saw the other car approaching much more rapidly and further over on her side of the road and her attention was attracted to these two cars, and that just as she pulled onto the road after passing the second car the train hit the back of her car, and that she did not hear the train approaching, and could not tell what happened after she was hit as she must have been knocked unconscious. She said that after she got around the first car the second car scared her and she was pulling her car around to the right and did not see the approaching train. It was a pretty day and the windows were open on her car. It seemed like the second car came flying across the track and was in the center of the road and forced her to the right, and the road was slanting at that point, and before she could look again, the train had struck the rear part of her automobile.

B.K. Conrad testified that he was the engineer in charge of the train at the time of the accident. That the engine was what is called a mallett engine, double engine, two-in-one. That he occupied the right side of the engine and the fireman occupied the left side. That there was an incline about...