Elders v. Missouri Pac. R. Co.

• Citation: 280 S.W. 1048
• Decision Date: 02 March 1926
• Docket Number: No. 3801.,3801.
• Parties: ELDERS v. MISSOURI PAC. R. CO.
• Court: Court of Appeal of Missouri (US)

280 S.W. 1048

ELDERS v. MISSOURI PAC. R. CO.

No. 3801.

Springfield Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Frank Elders against the Missouri Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

James F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.

Baker & Hale, of Morehouse, for respondent.

COX, P. J.

Action for personal injury and destruction of an automobile occasioned by a collision at a railroad crossing. Verdict and judgment for plaintiff. Defendant appealed.

Plaintiff was driving an automobile on a public highway across defendant's track at a crossing west of the town of Morehouse in New Madrid county. The engine of the automobile was killed when the car was on the track of the railroad and a train of defendant struck the automobile and demolished it and threw plaintiff out and badly injured him. The recovery was under the humanitarian rule. The negligence charged is found in the following language of the petition:

"Defendant's agents and servants in charge of said locomotive and train of cars carelessly and negligently ran the same upon and against the plaintiff's automobile without warning plaintiff of their approach; * * * that the employees of the defendant in charge of said train and locomotive saw, or by the exercise of ordinary care could have discovered, the plaintiff in such position of peril in time to have warned him of the approach of the train by sounding the bell or whistle of the locomotive, or in time to have stopped or checked the speed of the train, and have avoided injuring him and destroying his said automobile, and that said employees negligently failed to either give such warning or to stop or check the speed of the train."

The charge of negligence is that the servants of defendants in charge of the train could, by the exercise of ordinary care, have stopped or slackened the speed of the train after plaintiff's position of peril should have been discovered by them, and avoided the collision, or they could have warned plaintiff of the approach of the train by ringing the bell or sounding the whistle. It is not a plea of the failure to give the statutory signals, but a plea of failure to give warning to plaintiff after having discovered his peril, and thus have called his attention to the approach of the train and his dangerous position, and in that way have given him an opportunity to avoid the collision by his own action.

The evidence for plaintiff, as far as we deem it necessary to refer to it, tended to show that the crossing was on a grade 5 to 7 feet above the highway upon which he was traveling; that the road up this grade was steep, narrow, and in bad condition, and it was necessary for him to keep his eyes fixed on the road to avoid turning the automobile over; that the railroad track was straight for a long distance, and, if a party on the engine of defendant were on the lookout as the train approached the crossing, he would have had a clear view of the approach to the railroad track for a long distance—probably three-fourths of a mile; that the train approached the crossing at a rapid rate of speed without ringing the bell or sounding the whistle, and, as it approached the crossing, the engineer and fireman on the engine of defendant's train were both looking out to the north, while plaintiff approached the crossing from the south, and no effort was made to stop the train until the collision occurred; that plaintiff traveled up the grade very slowly; that there was a rise of about 6 inches to get up on the board at the side of the rail, and, when his front wheels went over that elevation, his engine stopped, and he then, for the first time, heard and saw the train approaching, and it was so close that he could not get out of the way before he was struck.

The evidence for defendant tended to show that the bell was rung as the law requires; that the engineer and fireman were at their posts of duty, and did not discover the plaintiff in time to avoid the collision.

Defendant demurred to plaintiff's testimony, but we are of the opinion that it was sufficient to take the case to the jury on the humanitarian theory. Upon plaintiff's testimony, the jury could have found that neither the engineer nor the fireman were paying any attention to the crossing as the train approached; that, had they looked, they could have seen plaintiff driving up a steep grade several feet before he reached the track of the railroad. Had they seen him in that condition, they would reasonably have been led to believe that plaintiff was at that time oblivious to his danger, or he would not have attempted to drive up so steep a grade immediately in front of the train. This grade was about 50 feet long from its bottom to the track of the railroad. Had the whistle been sounded at any time before he reached the track, he would likely have heard it...