England v. Southwest Missouri R. Co.

• Decision Date: 18 November 1915
• Docket Number: No. 1662.,1662.
• Parties: ENGLAND v. SOUTHWEST MISSOURI R. CO.
• Court: Missouri Court of Appeals

180 S.W. 32

ENGLAND v. SOUTHWEST MISSOURI R. CO.

No. 1662.

Springfield Court of Appeals, Missouri.

November 18, 1915.

Appeal from Circuit Court, Jasper County; Frank L. Forlow, Special Judge Division No. 2.

Action by James England against the Southwest Missouri Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

W. M. Spiva and Horace Merritt, both of Joplin, for appellant. McReynolds & Halliburton, of Carthage, for respondent.

FARRINGTON, J.

This suit originated in a justice's court in Jasper county, where plaintiff obtained judgment for $147.50 for alleged damage to his automobile in a collision with one of defendant's interurban cars. Defendant appealed the case to the circuit court.

Plaintiff based his amended petition on the negligent operation of the defendant's car at one of the public road crossings, known as the Archer crossing, between Webb City and Joplin. The grounds of negligence charged are a failure on the part of the operatives of defendant's car to give warning of its approach to the crossing, and a failure on their part to keep a lookout for persons who would cross the tracks at that place, and a failure to stop the car and prevent a collision when they saw or by the exercise of ordinary care could have seen plaintiff's automobile in a place of danger.

At the close of plaintiff's evidence the court gave an instruction to find for the defendant, to which the plaintiff excepted, and took a nonsuit with leave to move to set the same aside, which was in due time done, and, on the overruling of that motion, the plaintiff appealed to this court. This presents, the question whether the trial court, under the facts, committed error in directing a verdict for the defendant. As there is some evidence in the record tending to show that defendant was guilty of negligence in the approach of its car to this public crossing, the place of collision, we will treat that fact as established.

This leaves for determination: First, whether plaintiff's conduct in approaching or getting on or so near the track as to be struck by the interurban car amounted to negligence in law; and, second, if so, whether he was in that place of danger for a sufficient length of time to charge the defendant's motorman with notice thereof, and whether, having received such notice, by the exercise of ordinary care he could have handled his car so as to stop and avoid a collision. Was plaintiff guilty of contributory negligence? If so, was that the proximate cause of the collision? Or was his negligence superseded by defendant's negligence in failing to see plaintiff's automobile in time to so handle the street car as to avoid collision?

That plaintiff was guilty of negligence In law is without doubt under the facts in the case. No answer was filed by the defendant. There was no written plea charging contributory negligence; but it is well settled in this state that, where plaintiff's evidence in establishing his case of negligence against the defendant also shows that he was guilty of negligence as a matter of law, the defendant may have the advantage of it, even in the absence of an affirmative plea of contributory negligence. Engleking v. Railroad, 187 Mo. 158, 86 S. W. 89; Sissel v. Railroad, 214 Mo. loc. cit. 527, 113 S. W. 1104, 15 Ann. Cas. 429; White v. Railroad, 250 Mo. 476, 157 S. W. 593.

Besides, this case having originated in a justice's court, the defendant was entitled to show contributory negligence or to take advantage of a showing of contributory negligence without filing a formal plea. Glenville v. Railroad, 51 Mo. App. 629.

The facts are as follows: Defendant owns and operates an electric interurban railway between Webb City and Joplin, which crosses a public highway almost at right angles at a place called the Archer crossing. On the day of the collision plaintiff was driving his automobile west on this public road approaching this crossing. He sat on the right-hand front seat, or on the north side. Beside him, on his left, sat an employé named Moyer. In the rear seat were two ladies. The time was about 6 o'clock in the afternoon on August 15, 1913, and we will take judicial notice that it was broad daylight; besides, witness Moyer shows this fact. Plaintiff was driving at 15 miles an hour up to a point 92 feet from the crossing, where he checked the speed to from 15 to 12 or 10 miles an hour, and continued at that speed to a point about 15 feet from the crossing, at which last-mentioned point he did all he could to stop, and did bring his automobile to a stop within 6 inches of the east rail of defendant's track. When he was at, or when he had just passed, the 92-foot point, he looked to the south to see if a car was coming from that direction, and says he saw none. The evidence all shows that passing the 92-foot point there is little or no obstruction which would obscure the view of a car coming from the south toward this crossing at any place along the public road—from the 92-foot point up to the crossing—and that in this space the view of an approaching car is unobstructed for about 400 feet from the crossing. Plaintiff proceeded from this 92-foot point to a point from 30 to 15 feet of the crossing, going at a speed of from 10 to 12 miles an hour, without ever paying any attention or looking to the south again for an approaching car. He says he paid no attention to the south after looking south at the 92-foot point, because he did not see any car coming from that direction, and that there was some underbrush and trees along the north side of the crossing which would obscure the view of a car from that direction, and that he was looking all the time toward the north to see if one was coming. At a point 30 or 25 feet from the crossing Moyer, according to the plaintiff, said: "Here is a car right on us." Quoting plaintiff:

"He nudged me and said, `Look out; here is a car;' and I thought it was coming from the north. I threw on the brakes and stopped as quick as I could. When I stopped I was just 6 inches from the rail; the front wheel was. I was leaning over to see the railroad track to the north. I thought I could see under those trees if I got low enough. At the time Mr. Moyer called my attention I didn't see the car until it was closer."

Plaintiff also testified:

"At the time I did see the car it was 25 or 30 yards or 75 or 100 feet from me. * * * The street car when it struck us was not going very fast; they were stopping as they ordinarily do for a crossing. * * * I think the street car was very nearly stopped when it ran against my car. I couldn't say just how far the front end of the street car was guess the back end was 6 or 8 feet in the road. I think a wagon could go around there, but I didn't measure."

Plaintiff's witness Mrs. Sands, in describing what she saw, says she was standing on her property about 50 feet from the crossing, and saw the street car and the automobile approaching the crossing, and noticed that the driver of the automobile was looking out to the north, and that the man at plaintiff's left was looking straight ahead. She became frightened, and thought there would be a collision, and although she was watching the automobile, she says it did not appear to her to slow down until it stopped at the crossing. All the witnesses practically agree that the street car was approaching the crossing at a speed of about 15 miles an hour.

Enough has been detailed to convict the plaintiff of negligence as a matter of law, because, if plaintiff's testimony is to be believed as to the speed the street car was running, and he and his witnesses are to be believed as to the unobstructed view for practically 400 feet south from the 92-foot point on the public road, the conclusion is irresistible that the street car was within the plain view of one looking to see. The plaintiff, an adult in full possession of his senses so far as this record shows, in broad daylight, was therefore, as a matter of law, charged with knowledge of its approach, for to look, in the eyes of the law, is to see that which is before one in plain view, and the courts close their doors on one falling short in that requirement where he is not shown to be physically disabled in his eyesight.

Besides, it is negligence in law for a person to approach a railway crossing under the conditions disclosed by this record who never took occasion to look to the south after doing so at a point 92 feet from danger. The decisions are numerous and need not be cited holding that the duty is a continuing duty up to the danger point—to look and see and govern his actions with:seasonable care. This obligation rests on these charged only with the exercise of ordinary care, whereas in this case the driver of an automobile is approaching this railway crossing, upon whom, by statutory enactment (Sess. Laws 1911, subd. 9, § 12, p. 330), is fastened the duty of exercising the highest degree of care.

But, aside from all this, the physical fact stands out that plaintiff did not stop his automobile until it was in the line of collision, although he was approaching a crossing where his view to the north was obstructed, and according to his testimony he was watching for and expecting a car to approach from that direction, and yet he had so managed his automobile up to so close a point to the track, to wit, some 15 feet from the crossing, at about 10 to 12 miles an hour, that he was unable to bring it to a stop out of danger by the means at his hard, whether a car would come from the north or from the south. Finding, therefore, that plaintiff placed his automobile so as to collide with the street car, and was guilty of negligence as a matter of law, we now turn to the question whether, after having done this, the defendant was guilty of a subsequent act of negligence in failing to perceive plaintiff's predicament and failing to exercise ordinary care in avoiding a collision.

Witness Moyer, testifying for the plaintiff,...