Gersman v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 05 March 1921
• Docket Number: No. 21475.,21475.
• Court: Missouri Supreme Court
• Parties: GERSMAN v. ATCHISON, T. & S. F. RY. CO.

229 S.W. 167

GERSMAN v. ATCHISON, T. & S. F. RY. CO.

No. 21475.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Error to Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by W. A. Gersman against the Atchison, Topeka & Santa Fe Railway Company. Directed verdict for the defendant, and the plaintiff brings error. Affirmed.

R. B. Noel, C. M. Kackley, and Elijah Robinson, all of Kansas City, for plaintiff in error.

Cyrus Crane, Geo. J. Mersereau, and John H. Lathrop, all of Kansas City, for defendant in error.

RAGLAND, C.

Action for personal injuries received in the collision of an automobile with moving cars at a crossing over defendant's railroad at or near Augusta, Kan.

The petition charges that —

"The collision was caused by the negligence and carelessness of defendant, in that there was no flagman or other person at said crossing to give warning of the approach of said train and no whistle or bell rung when the train was approaching said crossing."

The answer, in addition to a general denial, averred, among other things, that

"Under the laws and decisions of the state of Kansas, constituting the law of said state as to the subject-matter of this action, the careless and negligent acts of this plaintiff occurring at the time and place of this accident were and constituted such negligence on the part of the plaintiff directly contributing to said accident as to be a complete bar to any right of recovery in this case."

There was a further plea of contributory negligence. The reply was a general denial. At the close of plaintiff's case in chief, defendant introduced in evidence a number of the decisions of the Supreme Court of Kansas defining the care which, as a matter of law, must be exercised in that state by persons crossing railroads in automobiles and other vehicles, and announcing the legal consequences of a failure to exercise such care. Plaintiff offered nothing in rebuttal. The court, at the request of the defendant, directed a verdict in its favor and gave judgment accordingly. Plaintiff brings the record here for review on writ of error.

For the sake of brevity the plaintiff in error will be referred to in the statement and opinion which follow as the plaintiff, and the defendant in error as the defendant.

At the place where the accident occurred, and at the time of the occurrence, the railroad ran practically east and west; the public road north and south, crossing the railroad at right angles. Approaching the railroad from the north along the public road, one came first to a track, called the industry track; it was referred to by the witnesses as track 1. Passing over track 1 and proceeding south, a second track, track 2, known as the passing track, was encountered. There was a slight rise in the grade just after passing over track 1, and the distance between tracks 1 and 2 was from 100 to 125 feet. Immediately south of track 2 and paralleling it was a third track — defendant's main line. Track 2 was approximately 5 feet wide, and the distance between the south rail of track 2 and the north rail of track 3 was 8 feet. Defendant's station building was two or three blocks east of the crossing. Engines and cars passed over the crossing at frequent intervals. The witnesses said it was a "busy crossing," and this was known both to plaintiff and to the driver of the automobile in which plaintiff was riding at the time of receiving his injuries.

Some time in the late afternoon of April 23, 1917, plaintiff, Leo Gibson, and Dale Gray started in an automobile from a cafe in Augusta to go to the office of an oil company across and south of defendant's railroad. The route selected by them took them aver the crossing just described. The purpose of their trip was to collect some money owing to them. One Dennis accompanied them, presumably for the ride. The automobile belonged to Gibson and he drove. He and Gray sat on the front seat, and plaintiff and Dennis on the back seat. The car was about 10 feet in length and the driver's seat was about 7 feet back of the front end. The top was down. They came from the east and turned into the road going south at a point from 350 to 400 feet north of the crossing. As they came east and for a short distance after they turned south, their view was so obstructed by buildings that they could not see whether cars were moving on the railroad tracks east of the crossing. Before reaching track 1, however, they saw a freight train standing on track 2. The train was headed west and the engine was somewhere from 6 to 30 feet east of the crossing. The steam was up and the engineer was in the cab. There was also a train of cars standing on the main line, track 3, about 100 yards west of the crossing, but they saw neither engine nor caboose attached to it.

Gibson, the driver, testified that he did not stop his car at track 1, but proceeded on to within about 6 feet of track 2, where he came to a stop by releasing his clutch and putting on the brake. He did not stop his engine. He then looked up and down the tracks, east and west; he could not see east along track 3 because the freight train on track 2 obstructed his view, but he heard nothing to indicate the approach of a train; he saw no engine attached to the string of cars standing west on track 3, but supposed there was an engine at the west end of them; for that reason he anticipated no danger from that direction and he thereafter "looked east all the time." After standing there 20 or 30 seconds, he slipped his clutch in, gave his motor gas, and started forward; just as the front wheels of his automobile went over track 2 he looked east and saw nothing and kept going; he looked again when the wheels of his car were going over onto track 3, and he then for the first time saw some railroad ears 40 or 60 feet away moving rapidly toward him from the east on track 3; he gave his motor gas and tried to get over, but a car struck his automobile, smashing it and severely " injuring plaintiff. He also said that the speed of the automobile as he came onto track 2 and approached track 3 was at the rate of three or four miles an hour, and that he could have brought it to a stop within 4 feet.

Plaintiff testified that the automobile was stopped just before crossing track 1 and he did not recall any subsequent stops before the collision. When they stopped he looked up and down the track; the train on track 2 obstructed his vision, but he looked over the tops of the cars and under them as best he could; he continued looking toward the east as they came up to track 2, and just as the front wheels of the automobile were entering upon track 2 he saw cars 40 or 50 feet away coming east on track 3; the occupants of the automobile at once made efforts to jump out of the car; Gray and Dennis did so, but the collision occurred before he could jump. He further stated that he never at any time made any suggestion to the driver with respect to ascertaining whether a locomotive or cars were approaching from the east on track 3 before they attempted to cross; that even after he saw the approaching cars on track 3 as the front wheels of the automobile were entering upon track 2 he said nothing and did nothing except make an effort to jump.

The car...