Goben v. Quincy, Omaha & Kansas City Ry. Co.
| Decision Date | 13 December 1920 |
| Parties | GRANDISON A. GOBEN, Appellant, v. QUINCY, OMAHA & KANSAS CITY RY. CO., Respondent |
| Court | Kansas Court of Appeals |
Rehearing Denied 206 Mo.App. 5 at 16.
Appeal from Adair County Circuit Court.--Hon. James A. Cooley Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
C. E Murrell and A. Doneghy for appellant.
Campbell & Ellison and J. G. Trimble for respondent.
Plaintiff's action is for damages resulting from a collision at a railway crossing in the city of Kirksville. The petition counts on a violation of the humanitarian rule, charging that there was an ordinance in force limiting the speed of railroad trains in said city to seven miles per hour; that defendant's train was being negligently run at a greater speed, to-wit--thirty miles per hour, and negligently struck plaintiff on the crossing and injured him and his automobile; that while plaintiff was approaching the track oblivious of danger the operatives of the engine saw or could have seen his peril in time, by the exercise of ordinary care, to have prevented the injury, but negligently failed to discover plaintiff's peril or to avoid injuring him after such discovery. The answer was a general denial.
A demurrer to the evidence was overruled, and the cause was submitted to the jury which returned a verdict for defendant. Plaintiff appealed, alleging error in the admission of evidence and in the giving of instructions for defendant. However, if as the latter claims, no case for the plaintiff was made, the alleged errors, if any, cannot affect or change the result already reached in the trial court.
The crossing in question is on Centennial Avenue in the northern portion of the city of Kirksville. Defendant's railroad runs east and west and Centennial Avenue lies north and south. Plaintiff, traveling in a Ford Automobile of the coupe type, turned into Centennial Avenue at a point 560 feet south of the crossing and then went north to it where he was struck by defendant's west-bound passenger train going, so plaintiff claims, at thirty miles per hour. The engineer, defendant's witness, admitted he was going twenty miles per hour. As stated before, the ordinance limit was seven miles. The collision occurred shortly after ten o'clock on the morning of October 15, 1917.
The train was, of course, running on the main track, and a switch or "Y" track lay south of it and twenty-five feet distant therefrom. Plaintiff, therefore, had to cross this switch track before reaching the point where the collision occurred. The ground to the east of Centennial Avenue, and to plaintiff's right as he went north along the above mentioned 560 feet, was open pasture land with nothing thereon to obstruct plaintiff's view of an approaching train during his traversal of the first and greater portion of said distance. There were, however, four box cars and a pile of telegraph poles, the former standing on the switch and extending up close to the main track and east of Centennial Avenue, and the latter, piled about six feet high, lay east of the box cars "on the hill" north of the switch track.
The plaintiff testified that from the time he turned north on Centennial Avenue until he got to the mouth of the alley, about 200 feet south of the crossing, he at various times, looked to see if a train was in sight but saw none; that at the alley he came almost to a complete stop and listened and looked for a train but did not see or hear any. He testified that at this point, and from thence on to the switch, his view of an approaching train was cut off by the box cars and poles, that he listened for a train but heard none and kept looking and was looking to the east as he went slowly toward the switch and crossed over it and got far enough past the obstacles to see down the track; that when he got ten or fifteen feet south of the switch he saw the train about sixty or seventy yards away, saw that it was coming very fast, and tried to stop his automobile but owing to a slight down grade from the switch to the main track, his car had started up a little as it left the switch and, when he saw the train, he was unable to stop before it got on the track and then was likewise unable to get on across before the engine struck him, owing to the high speed at which the train was going; that no effort was made to stop or slacken the speed of the train; that the trainmen could have seen him as soon as he could see them; that if he had had two seconds more he would have gotten across and out of danger.
Defendant claims that the photographs in evidence, which were taken on the afternoon of the day of the accident, conclusively show that the box cars and poles did not obstruct the view; but manifestly we cannot say they would not, at least from the time a traveler reached the alley 200 feet north of the crossing and from thence on until he had passed over the switch. The photographs show that the roadway of Centennial Avenue, at a point a short distance before the switch was reached, was lower than any other portion thereof and lower than the ground next to the railroad and east of the Avenue. The photographs also disclose that at the crossing and extending for some distance to the east the track was below the natural surface of the ground, how much below is not shown. Four freight cars are not shown in the photographs, but only one, and that at a point considerably east of the avenue. While it may appear from the photographs that the view of a train would not be obstructed at a point in the Avenue 217 feet from the crossing and further south on Centennial Avenue, yet they by no means show that the view would not be obstructed, as plaintiff says it was, on that portion of the Avenue lying between the mouth of the alley and the switch. Hence, in passing upon defendant's contention that, as a matter of law, plaintiff is not entitled to recover, we must accept plaintiff's claim that from the alley on to the switch and until that was crossed, the obstructions were such as prevented him from seeing the train and also prevented the trainmen from seeing him, and that they could see him as soon as he could see them, which was when he got to a point ten or fifteen feet south of the switch (which would put him ten or fifteen feet from the main track and the front end of his car nearer than that to the line of danger). As stated, according to plaintiff's evidence, the train at this time was sixty or seventy yards away and no effort was made to slacken speed or to stop. According to defendant's evidence, the engineer was on the right hand or north side of the engine and the latter obstructed his view of any one coming from the south to the crossing and he did not see plaintiff until the front wheels of his automobile came across on the engineer's side which he says was but a moment before the collision. The fireman testified that he was down on the deck attending to certain of his duties and resumed his seat on the box on the left or south side of the engine when he saw plaintiff's automobile approaching the crossing and twenty-five or thirty feet from it and he hollered to the engineer as quick as he could. He would not say how far the engine was from the crossing when he saw the automobile, but says the collision occurred very quickly after he saw plaintiff. So we may eliminate from the case any idea that the trainmen were led to think the plaintiff would stop before getting into danger, for no claim of that kind is made, and, according to their own evidence, he was in a dangerous situation or inevitably going into it when he was first seen by them.
With this element eliminated we have this kind of a case. Here is a public crossing at which, from a point 200 feet therefrom up to ten or fifteen feet from it, the view is obstructed both to the traveler approaching the crossing and likewise to the train crew about to pass over the same. The trainmen know the crossing is there, know that a traveler is likely to be on the highway and may be about to use the crossing, and that if he is there neither he nor they can see each other until the traveler is close to the danger line. And yet knowing all this the trainmen approached the crossing at a high rate of speed in violation of the law regulating the speed at that point. While they are doing this the traveler is within the obstructed portion of the highway and emerges from behind the obstructions in time to see the train sixty or seventy-five yards away. He is in ten or fifteen feet of the danger line and vainly tries to stop but is unable to do so before his car rolls into the dead line and then he vainly tries to go on and get across. Had he been afforded two...
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