Elliott v. Pac. R.R. Co.

• Decision Date: 05 July 1932
• Docket Number: No. 17509.,17509.
• Citation: 52 S.W.2d 448
• Parties: CLYDE ELLIOTT, A MINOR, BY DALE ELLIOTT, HIS NEXT FRIEND, APPELLANT, v. MISSOURI PACIFIC RAILROAD CO., RESPONDENT.
• Court: Missouri Court of Appeals

52 S.W.2d 448

CLYDE ELLIOTT, A MINOR, BY DALE ELLIOTT, HIS NEXT FRIEND, APPELLANT, v. MISSOURI PACIFIC RAILROAD CO., RESPONDENT.

No. 17509.

Kansas City Court of Appeals. Missouri.

July 5, 1932.

Appeal from the Circuit Court of Cass County. — Hon. Leslie A. Bruce, Judge.

REVERSED AND REMANDED.

Thos. N. Haynes for appellant.

C.W. Hight, L.J. Bishop and D.C. Chastain for respondent.

TRIMBLE, P.J.

Clyde Elliott, eighteen years of age, was driving an automobile in a southeasterly direction along First street in the city of Pleasant Hill about four A.M., of March 22, 1931. Defendant's railroad crossed said street at grade in a general northwesterly and southeasterly direction. The street paving was a concrete slab, and on the crossing a train of dark colored coal cars was permitted by the defendant to remain standing for thirty minutes or more across said street completely blocking all traffic on said street which was extensively used at all hours of the day or night by all kinds of motor and other vehicles as well as by pedestrians. It was very dark and the weather was misty and foggy. With matters in this condition Clyde's automobile coming along the street violently crashed against the cars of said train standing on the crossing, completely wrecking the automobile and seriously injuring its driver.

He, through his father as next friend, brought this suit for $4000 damages. The defendant filed a demurrer to the petition alleging that it did not state facts sufficient to constitute a cause of action. The basis of the demurrer, according to the statement in defendant's brief, is "that the petition shows on its face that the plaintiff was guilty of such contributory negligence as to bar recovery."

The trial court sustained the demurrer, whereupon plaintiff appealed.

The petition is as follows:

"Plaintiff, Clyde Elliott, states that he is a resident of Cass county, Missouri; that he is a minor of the age of eighteen years; that on the 8th day of August, 1931, Dale Elliott, on plaintiff's request in writing, was by the clerk of the circuit court of Cass county, Missouri, duly appointed and constituted next friend of plaintiff for the purpose of instituting and prosecuting this action; that said Dale Elliott has filed with the clerk his written acceptance of said appointment, and this action is prosecuted in behalf of plaintiff, Clyde Elliott, by said Dale Elliott as next friend.

"Plaintiff states that defendant, on the 22nd day of March, 1931, for many years prior thereto was and now is a railroad corporation, incorporated under the laws of the State of Missouri, having and maintaining business offices in the county of Cass in said State, and owning and operating a line of railroad extending through said county of Cass and through the city of Pleasant Hill, in said county, said City of Pleasant Hill, at all said times, being a duly incorporated city.

"That at all dates herein mentioned there was and is a certain street and highway known as First street otherwise known as Missouri State Highway No. 7, extending in a northwesterly and southeasterly direction through the main business part of said city, and that said First street, at all dates herein mentioned, at a point within the corporate limits of said City of Pleasant Hill, was and is crossed, at grade, by defendant's said line of railroad and railroad tracks which also extend in a general northwesterly and southeasterly direction through said city, and which said First street is surfaced with a concrete slab.

"That at all dates herein mentioned said First street, at and near the said street crossing, was and is very extensively used for traffic, both day and night, by all kinds of vehicles, including motor vehicles as well as pedestrians, all of which defendant has at all times well known.

"That on the 22nd day of March, 1931, at about the hour of four o'clock A.M., while it was very dark and the weather was misty and foggy, defendant, in operating its said line of railroad, had placed and left standing upon and along its said railroad track and over and upon said First street crossing, a train of freight cars, consisting of dark colored coal cars, and then and there wrongfully, unlawfully, carelessly and negligently permitted said train of cars to remain standing continuously upon said street crossing for a period of more than thirty minutes, so that said First street was completely obstructed and blocked to all traffic on said street and over said crossing, all of which defendant at all times then and there well knew.

"That while said street crossing was so obstructed by defendant and been by it so obstructed continuously for more than thirty minutes as aforesaid and next before the time of the collision complained of herein, plaintiff, Clyde Elliott, not having any knowledge or information that said crossing was so obstructed, was then and there in the act of driving and operating an automobile, in a southeasterly direction, along and upon said First street and approaching said street crossing, and in so doing, was in the exercise of due and proper care on his part, and had no warning or signal of any kind of said obstruction of said street crossing so caused by defendant, and, by reason of the darkness of the night, the foggy and misty condition of the atmosphere, the dark color, condition and location of defendant's said cars so obstructing said crossing, could not by the exercise of proper care on his part, and did not discover defendant's said cars so obstructing said crossing until the said automobile, which plaintiff was driving, was too close to defendant's said train of cars so obstructing said crossing, to avoid collision therewith, and the said automobile, then and there being driven by plaintiff, came violently and forcibly in collision with defendant's said train of cars then and there standing upon and obstructing said street crossing, and that by reason of such collision said automobile was completely wrecked, and plaintiff, Clyde Elliott, received the injuries hereinafter mentioned and sued for.

"Plaintiff states that said collision and plaintiff's injuries so resulting therefrom were caused by and were the direct and immediate result of the several wrongful, unlawful, careless and negligent acts and conduct of defendant, its agents, servants and employees as follows, to-wit:

"1. The defendant, its agents, servants and employees, at the time and place aforesaid, wrongfully, unlawfully, carelessly and negligently failed to give any warning whatever by flagman, watchman, signal light or other device of the presence of said train of cars so standing upon and obstructing said crossing, or clear said crossing, as was its duty to do.

"2. That defendant, its agents, servants and employees, then and there in charge and management of its railroad and train of cars, at the time and place aforesaid, for a period of more than thirty minutes continuously and next before the time of said collision, wrongfully, unlawfully, carelessly and negligently permitted its said train of cars to stand upon and obstruct said street crossing, thereby obstructing the traffic on said First street and over said crossing.

"3. That at all times herein mentioned and for many years next prior to the 22nd day of March, 1931, the defendant well knew that said street crossing, at all times, both day and night, was extensively used for travel by persons driving motor vehicles and otherwise, and defendant at all times well knew of the danger and peril to travelers on said street, incident to and caused by the obstruction of said street crossing by defendant's train of cars, and well knew that, in the exercise of ordinary care on its part, it was necessary to have at said street crossing a watchman, guard, signal light or other device to warn travelers, on said street, of the said obstruction on said crossing and of the dangers caused thereby, yet, notwithstanding such knowledge on defendant's part, the defendant, its agents, servants and employees, at the time and place aforesaid, wrongfully, unlawfully, carelessly and negligently permitted said train of cars to stand and remain upon said street crossing for a period of more than thirty minutes continuously next before the time of the collision complained of herein, and thereby completely obstruct said crossing for such period of time, so that said crossing could not be used by travelers on said street, without having any watchman, guard, signal light or other device to warn plaintiff and other users of said street, of the danger and peril so caused by such obstruction, and without cutting said train or making other provision for the safe passage of travelers over said street crossing.

"4. That at the time plaintiff was so approaching said street crossing as aforesaid and was about to use the same, the defendant, its agents, servants and employees knew or by the exercise of ordinary care on their part, could and would have known that plaintiff was so approaching and about to use said street crossing while it was so obstructed by defendant's said train of cars, and knew of the danger and peril or by the exercise of ordinary care on their part, could and would have known of the danger and peril to which plaintiff was subjected, in time, so that, by the exercise of ordinary care on their part, they could have given proper warning to plaintiff of said obstruction and the danger and peril incident thereto, and thereby avoided the said collision and injury to plaintiff, but that, notwithstanding said knowledge, the defendant, its agents, servants and employees then and there wrongfully, unlawfully, carelessly and negligently permitted said train of cars to remain standing upon said street crossing and obstruct the same as aforesaid continuously for a period of more than thirty minutes next before the time of such collision, without giving any warning whatever, or providing other means to prevent the injuries to pla...