George v. Kansas City Southern Ry. Co.

• Decision Date: 17 July 1926
• Docket Number: No. 3892.,3892.
• Parties: GEORGE v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

286 S.W. 130

GEORGE v. KANSAS CITY SOUTHERN RY. CO.

No. 3892.

Springfield Court of Appeals. Missouri.

July 17, 1926.

Appeal from Circuit Court, McDonald County; Charles L. Henson, Judge.

Action by Jacob A. George against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Cyrus Crane and Hugh E. Martin, both of Kansas City, and 0. R. Puckett, of Pineville, for appellant.

James M. Tatum, of Anderson, and J. A. Sturges, of Pineville, for respondent.

BRADLEY, J.

Plaintiff's truck was struck on, a crossing and damaged. The cause was tried before the court and a jury, and plaintiff obtained a judgment for $200, from which judgment defendant appealed.

The petition is in two counts,"but it seems to have been considered as in a single count, and we shall so consider it. It is alleged that on June 3, 1924, while Paul George, son of plaintiff, was endeavoring to drive plaintiff's Ford truck over the Beaver street crossing in the city of Anderson, Mo.: (1) The agents of defendant then and there in charge of a train of cars "negligently, carelessly and unskillfully so conducted said engine and train of cars that a box car became loose and was by said agents * * * run down said track without defendant having any one posted at said crossing to give warning of its approach, and without having any bell, whistle or other instrument of alarm on said car, and without defendant having on said car an employee to control the same," and that said car by reason of the negligent acts aforesaid struck and destroyed plaintiff's truck; (2) that because of the negligent failure of defendant to have safe and sufficient couplings on its cars, one of its box cars became loose and detached from the engine and other cars and ran down the track without having thereon any employee to control the same and without having on said car any means by which warning could be given, and that by reason thereof said loose car struck and demolished plaintiff's truck. The answer is a general denial and a plea of contributory negligence. Error is assigned (1) on the action of the court in refusing a demurrer at the close of the case; (2) on the admission of evidence; and (3) on the instructions.

Beaver street in the city of Anderson runs east and west. Defendant has three tracks, a main line and two switch tracks which run north and south across Beaver street. The east track is a switch track. Immediately east of this switch track is a berry shed about ten feet wide east and west and extends from Beaver street on the south to Main street on the north. Immediately east of the berry shed is a driveway into which vehicles drive to unload berries. Plaintiff's son George, 18 years old, in company with his cousin Esther Martin, drove the truck west on Beaver street to the driveway east of the berry shed, turned into this driveway, and unloaded his berries. He then drove north to Main, east a block, south to Beaver, and thence west on Beaver to the crossing where the collision occurred. There is no appreciable distance between the switch track and the berry shed, and plaintiff's son approaching this switch track crossing from the east on Beaver street could not see north up the track until the front end of the truck was practically upon the `track, at least within the danger zone. Plaintiff's son approached the crossing driving in high at the rate of about 12 miles per hour. His engine for some reason not explained died on the crossing and a loose box car approaching from the north struck and damaged the truck. Esther Martin got out of the truck and walked out of danger before the box car reached the truck. Plaintiff's son remained in the truck, endeavoring to drive it off the track, until the impact, but was not injured.

Defendant offered no evidence, but stood on its demurrer at the close of plaintiff's case The demurrer raises two questions, viz., the alleged contributory negligence of plaintiff's son, and the proximate cause of the collision.

The cause of the box car being loose and passing down this switch and over this crossing does not clearly appear, but for the purposes of the demurrer it does not matter. Plaintiff's son, who was an experienced driver and who was thoroughly familiar with the lay of the tracks, shed, etc., testified:

"I drove up to the crossing, and not being able to see a train, I ventured to cross the track. As far as I could see the track was clear, and just as I got on the track the motor died, and at the same time some gentlemen began to hollow and shout that the train was coming, and I endeavored to get across the track and I couldn't do that, and I kept trying to get across the track by using the starter, and I didn't get it accomplished and the box car hit me. My cousin Ester Martin was in the car with me when I drove on the track. She jumped out when the men hollowed. When I first saw the car coming, I was squarely on top of the track. Now this crossing is at the south end of the berry shed. Before I drove on the track I couldn't see up the track at all for the berry shed. The first thing that attracted my attention to a car coming was the gentlemen who shouted at me. I didn't see any one else on the track. I don't know exactly how close the car was when I first saw it. I could estimate not over 100 feet. I wasn't personally injured. I couldn't say whether the car was a loose car or whether there was an engine attached to it. I couldn't say whether it was a refrigerator car or a box car. I heard no whistle blow, and didn't hear an engine bell ringing. When the car struck me, I saw that it was loose, but I did not see that it was before it struck me. It practically demolished the truck. I couldn't say how far from the place where the car struck my automobile that it stopped."

On cross-examination plaintiff's son testified:

"As I approached that track from the east I looked to the north, but I couldn't say where I was when I looked. I couldn't see to the north from any place on the east side of the track from where I looked. My car stopped on the track. I didn't put the brakes on. I don't know what caused the car to stop on the track; I said I didn't hear anybody shout until the car stopped. * * * The street there as you go west is not as smooth as a board floor, but it is practically smooth. The engine of the Ford certainly made noise as it went along there and the bed on the back of the car made considerable noise. The fenders were pretty tight; they did not rattle as we went along the street. The car was a very smooth running car and the bed was fastened and it didn't make any noise. If I said awhile ago that it made considerable noise, you misunderstood me. As I drove that Ford from the east along the street about 10 or 12 miles an hour I couldn't say that it rattled. * * * The engine as far as making a noise was running along in high, and of course the engine and exhaust and the motor would make some noise, but as far as the body and the fenders, the body was pretty tight and the fenders too, and they made no noise. After the car stopped I tried to get off the track. I stepped on the starter with the car in gear. When I stepped on the starter I didn't have the brakes on. The car moved a few inches and then went back. * * * I couldn't say that there was anything the matter with my brakes. I drove up there with" the...