Fife v. Chicago & Alton Railroad Co.
| Decision Date | 01 December 1913 |
| Citation | 161 S.W. 300,174 Mo.App. 655 |
| Parties | LEON F. FIFE, Appellant, v. THE CHICAGO & ALTON RAILROAD COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Howard Circuit Court.--Hon. A. H. Waller, Judge.
AFFIRMED.
Judgment affirmed.
S. C Major and J. H. Denny for appellant.
Don C Carter for respondent.
A passenger train operated by defendant collided at a public road crossing in Howard county with a horse and buggy owned by plaintiff and this action is to recover the resultant damages on the ground that they were caused by negligence of defendant. The petition alleges "that the tracks of defendant, consisting of main track and a sidetrack, are laid across a certain traveled public highway in said county leading from the city of Glasgow to the town of Armstrong in said county, near defendant's station at Steinmetz station on said railroad; the tracks at said crossing being on the same grade as said highway; that on the 18th day of August, 1911, while a certain horse and buggy belonging to plaintiff was lawfully passing along and upon said highway at the point of crossing of defendant's tracks as aforesaid the agents and servants of defendant managing said railroad and in charge of its trains thereon, so negligently, carelessly and unskillfully conducted themselves that a certain locomotive and train of cars then and there in charge of the agents and servants of defendant were by reason of the negligence, unskillfulness and want of care of the agents and servants of defendant, with great force and violence driven and run upon and against said horse and buggy of plaintiff, and plaintiff's horse, buggy and harness, of the value of three hundred and sixty dollars, were thereby wholly destroyed."
The answer interposes a general denial and a plea that negligence of the agent of plaintiff in charge of the horse and vehicle contributed to the injury. A trial of the issues in the circuit court resulted in a verdict and judgment for defendant. Plaintiff appealed.
The facts of the case are as follows: Plaintiff, a farmer living about two and one-half miles north of the crossing in question and about twelve miles from Fayette, lent a horse and buggy to one of his servants, a young man named Schafer, who desired to spend the day at a county fair being held at Fayette. On his way to the fair Schafer stopped at an intermediate town and had a tire reset at his own expense but did this voluntarily and not at the request of plaintiff. Aside from this incident the evidence shows conclusively that the use of the property by the servant was for his own pleasure and not on his master's business. After spending the day and the first half of the night at Fayette, Schafer started to return home with two companions he had found at the fair and had agreed to take to their homes three or four miles east of plaintiff's farm. All three being intoxicated fell asleep in the buggy and the horse, allowed to take his course, followed the nearest road home. Sometime before reaching the crossing Schafer awoke, discovered that the horse had left the road to the homes of his companions, decided that the young men should spend the night with him and then relapsed into slumber. The next time he regained consciousness he was in Glasgow, one of his companions was dead and the other severely injured.
It appears that the horse being pointed homeward traveled on, keeping in the road which runs north and south until he reached the crossing which is in the country a short distance east of the station at Steinmetz. The railroad, which runs east and west, has two tracks at this place, the main track and the passing track, which is six feet north. Just east of the crossing the tracks curve towards the north. A west-bound freight train had been standing on the passing track for several hours before the injury but had been cut in two at the crossing to allow the free use of the public road. Its crew had orders to follow a west-bound passenger train due to pass Steinmetz at about three o'clock in the morning and when they saw from the glare cast by its light that the passenger train was coming, they closed the gap in their train preparatory to following it. The movement, of course, obstructed the crossing and when the unguided horse arrived he found his further progress blocked by the freight train. There is a controversy between the parties over the length of time this blockage continued. The brakeman who coupled the two parts of the train states that the passenger train arrived not more than two or three minutes after the crossing was closed and that the horse and buggy were not at the crossing when he coupled the cars. On the other hand witnesses introduced by plaintiff who examined the place after daybreak testified to finding a multitude of hoofprints and buggy tracks from which it well might be inferred that the horse had been at the crossing a long time and had restively worked his way over towards the west side. As to the character of the crossing the evidence shows that the railroad is on a lower level than the wagon road which slopes down to the crossing on each side. The facts are not disputed that the passenger train was late, was running from forty to fifty miles per hour, and that its engine whistled for the station and again for the crossing. The engine carried a powerful electric headlight but the engineer testified that on account of the curve he could not see the crossing and did not become aware of the presence of the horse (he did not see the buggy) until the engine was not over sixty feet from the crossing. A collision was unavoidable but fearing the horse might be thrown back under his train by rebounding from the freight train he immediately applied the brakes and stopped the train in a space of about 600 feet. The three occupants of the buggy were found between the main and passing tracks thirty or thirty-five feet west of the crossing; the body of the horse was also between the two tracks and a few feet west of the bodies of the men. The wreckage of the buggy was scattered along both sides of the main track. It was a starlit summer night, too dark, the engineer states, for him to see anything out of the narrow path of the electric headlight which, because of the curve, did not touch the crossing until the engine was about sixty feet from it. Witnesses introduced by plaintiff, who made tests afterwards, contradict this statement and say that the curve was not so sharp and that the crossing came within the path of the light at a distance of 600 feet.
The instructions given at the request of plain...
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