Gillispie v. Pryor

• Decision Date: 10 June 1918
• Docket Number: No. 12677.,12677.
• Parties: GILLISPIE v. PRYOR.
• Court: Missouri Court of Appeals

204 S.W. 835

GILLISPIE v. PRYOR.

No. 12677.

Kansas City Court of Appeals. Missouri.

June 10, 1918.

Appeal from Circuit Court, Schuyler County; N. M. Pettingill, Judge.

"Not to be officially published."

Action by Marion Gillispie against Edward B. Pryor, receiver of the Wabash Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Higbee & Mills, of Kirksville, for appellant. A. D. Morris, of Lancaster, and John C. Mills and S. W. Mills, both of Kirksville, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment for personal injuries and damages to his automobile, both alleged to have been sustained by reason of one of defendant's trains having struck, at a public crossing in this state, the automobile and throwing plaintiff from the same. The ground or negligence alleged was a failure to give the statutory signals.

Defendant urges that his demurrer to the evidence should have been sustained. The evidence is very conflicting, but, taken in its most favorable light to plaintiff, it shows that on August 20, 1914, plaintiff and his wife and two guests left Kirksville, Mo., in plaintiff's automobile, intending to go to Worthington, Putnam county, Mo. Plaintiff was in the front seat, driving the automobile. The curtains were off, and there was nothing about the automobile to obstruct plaintiff's view. When they reached a public road crossing, called the Ely crossing, 6 miles north of Kirksville and about 2 miles south of the town of Sublette, the automobile was struck by one of defendant's southbound traifis, injuring plaintiff and demolishing the automobile. The accident occurred shortly after 11:00 a. m. The public road traveled by plaintiff leads due north from Kirksville to a point on the east side of defendant's right of way, where it turns west and thence proceeds upgrade 50 feet where it crosses the railroad track. At this point the railroad track runs from a northeasterly to a southwesterly direction.

Plaintiff testified that a half mile before he made the turn to cross the railroad tracks he was looking north for a train, but that he could not see the track to the north on account of a cornfield which obstructed his view. The cornfield ran up to within 5 feet of the right of way fence; the right of way fence paralleled the track and was 50 feet east of it. Before reaching the turn plaintiff was running his car at the rate of about 10 or 12 miles per hour. On account of the road being muddy and there being a puddle of water at the turn, plaintiff slowed down to 5 or 6 miles an hour at the latter point, and then speeded up to cross the tracks, which were from 4 to 4½ feet higher than the road at the turn. After making the turn he looked to the south for trains, and then to the north. When he looked to the north he was 15 or 20 feet from the track, and he then saw the train 200 to 250 feet away, coming at the rate of from 35 to 40 miles an hour. Under the conditions present he could have ordinarily stopped his car within 5 feet, but the sudden appearance of the train caused him to become scared or confused, and he threw out the clutch, put on his brakes, and slid or skidded onto the track. The car stopped with its front wheels on the track, where it was struck by the oncoming train. He was expecting the train, but thought it had passed the crossing. He was "thinking that a freight train might be coming up." He was familiar with the crossing. He listened for trains, but heard none. There was no bell rung or whistle given. The cornfield did not obstruct plaintiff's view at the turn 50 feet east of the crossing, but he testified that he did not see the train.

The evidence to show that he could not have seen the train at the point of turning, taken in its most favorable light to plaintiff, was as follows: That, there was a wing fence covered with vines running from the right of way fence west to within 15 feet of the railroad; that at a point 400 or 500 feet north of the crossing (another witness said 600 feet) the track was from 4 to 5 feet lower than at the crossing; that starting 20 feet north of the crossing, and on the east side of the railroad, was a dump or bank of earth 200 feet in length and from 3½ to 4½ feet in height, and upon this dump was a thick growth of weeds and brush from 3 to 4 feet in height This bank of earth was 8 feet east of the east rail of the track and 30 feet west of the right of way fence. Plaintiff testified that it was this dump that obstructed his view as he made the turn.

Plaintiff introduced the testimony of a civil engineer, who testified that he took the elevation of the track in the vicinity of this crossing, and that at 100 feet north of the crossing the track was .93 feet below the level of the Crossing; at 200 feet, it was 1.55 feet below the level; at 300 feet it was 2.55 feet below the level; at 400 feet it was 3.6 feet below the level; at 500 feet, 4.45 feet below the level; at 600 feet, a was 4.55 feet below the level. This latter point was the lowest point of the track north of the crossing. From there on north the elevation grew, and at 900 feet north of the crossing the same elevation existed as that at 100 feet, and at 1,500 feet north it was 1 foot higher than it was at the crossing, and that the track got higher from there on to the north. This witness testified that 50 feet east of the crossing at the turn there was a drop of 4.15 feet; at a point 75 feet south of the turn in the public road it was 5.13 feet...