Grief v. National Lead Co.

Decision Date18 June 1925
Docket NumberNo. 18951.,18951.
Citation274 S.W. 83
PartiesGRIEF v. NATIONAL LEAD CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, St Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by Anna Grief against the National Lead Company. From an order granting plaintiff a new trial after verdict and judgment, defendant appeals. Reversed and remanded, with directions.

Hensley, Allen, Moore & Fitch, of St Louis, for appellant.

Marbury & Coffer, of Farmington, for respondent.

BRUERE, C.

This is an action to recover for personal injuries received by the plaintiff in a collision on a public crossing between a train of cars operated by the defendant and an automobile driven by the plaintiff. The trial below, before the court and a jury, resulted in a verdict and judgment for the defendant. Thereafter the trial court granted the plaintiff a new trial. From this order the defendant prosecutes this appeal.

The negligence as charged in the petition is:

"That after the defendant, its agents, officers, and servants in charge of and operating said train saw, or by the exercise of reasonable care and diligence, had they not been reckless and negligent in so operating said train, could and would have seen, the dangerous position and imminent peril in which she was then situated, and seeing, or by the exercise of reasonable care and diligence, if said train had not been negligently, carelessly, and recklessly operated by defendant, its agents, officers, and servants and employees in charge thereof, could and would have seen, the imminent peril in which she was placed, and that she was oblivious to and unaware of the nearing danger in the approach of said train, defendant, its agents, officers, servants and employees recklessly, negligently, willfully, and wantonly ran its said train upon said crossing and into and against the automobile occupied and operated by plaintiff, thereby giving to her the serious and permanent injuries as aforesaid as hereinbefore alleged; that the said injuries to plaintiff were directly caused by the negligence of said defendant, its agents, officers, servants, and employees in operating its said train in the manner as fully set out as aforesaid; that the said injuries to plaintiff were directly caused by the negligence of said defendant, then in charge of and operating said train by its agents; officers, servants and employees then and there in charge of its said train, in this, that said agents, officers, servants and employees, after they saw and knew, or by the exercise of ordinary care and prudence on their part would have seen and known, that plaintiff was approaching said crossing and track and was in imminent danger and peril and was oblivious to and unaware of the nearing danger in the approach of its said train, in time to have averted said collision and said injuries as aforesaid."

The answer contains a general denial, coupled with a plea that the collision was due to the negligence of plaintiff in failing to stop the automobile and to look and listen for the approaching train of cars before driving the automobile upon the railroad crossing, and in negligently driving said automobile against one of the said cars, when by the exercise of ordinary care upon plaintiff's part she could have seen the approaching car and stopped the automobile and avoided collision therewith.

The facts in the case are these: The defendant's railroad runs in a northeast direction over and across a certain public highway leading from the town of Farmington, Mo., to the town of Desloge, Mo. On the afternoon of May 8, 1922, the plaintiff was driving a four-passenger Ford automobile north upon said highway, and when on defendant's railroad track, a west-bound train of cars collided with the automobile, striking it on the left fender and left corner of the radiator, resulting in injury to the plaintiff. Plaintiff was familiar with the public highway where it crosses the said railroad tracks, and, prior to the accident, she had frequently driven her automobile across said crossing.

Regarding the manner in which the collision occurred, plaintiff testified, on direct examination, that she was driving north, on the right side of the highway, approaching the crossing, at a speed of 6 or 8 miles an hour; that on the right-hand side of the highway there was a board fence, a catalpa tree, a big rosebush, bushes, and shrubbery; that she heard no bell ringing or whistle sounded, and that she did not notice the train until it was right close to her, just right on her; that when she saw that the train was backing onto her she "cramped" her car as far as she could to the right, kicked the switch off with her foot and killed the engine, thinking she was clear of the track; that the back part of the car hit the left light and fender and left corner of the radiator of the automobile, and knocked her back to the left and injured her arm, but that she was not thrown from the automobile, and still kept hold of the steering wheel.

Plaintiff further testified that she saw a man standing on the west end of the car that struck her, and that said car went about "midways of the road" before the train stopped; i. e., "the first car occupied the west half and the second car occupied the east half of the road." She said that the train was going slow—about the same speed as that at which the automobile was running.

On cross-examination plaintiff testified that she drove over the said railroad crossing a great many times prior to the accident; that as she approached said crossing, and just before ascending the hill, she was going down grade at a good rate of speed; that when she reached the top of the hill near the crossing she was not driving very fast; that when she first saw the train she was 6 or 8 or 10 feet from the track; that she then kicked the switch off and "cramped" her car to the right, thinking she was clear of the track and would not be hit. She said that when she was back from the track 30, 90, or 50 feet she could not see down the railroad track because of the fence and bushes. Plaintiff further testified:

"Q. Mrs. Grief, if you had been looking you could have seen this approaching train coming from the east when it was 25 feet distant from the public highway, and you were 10 or 15 feet from the railroad crossing; isn't that a fact? * * * A. Why; I could if I had been warned perhaps, and had been putting my full attention to the railroad, but I was watching the automobiles on the public highway. I had no warning whatever.

"Q. That is not responsive— A. If I had a warning I would have been looking.

"Q. And if you had looked, you could have seen it? A. I didn't have occasion to look.

"Q. And if you had been looking you could have seen it? A. If I'd had warning I would have been looking, and I might have seen it, but I was looking at my automobile and the highway.

"Q. And the fact is, you did not look? A. No; I didn't look; I had no occasion to look. * * *

"Q. If you had looked down the track you would have seen the approaching train, isn't that right, Mrs. Grief? A. I might have seen it if I had occasion to look down the track."

Fred White, defendant's brakeman, on behalf of the plaintiff, testified that at the time of the collision the train, consisting of five cars and an engine on the east end, was running west; that as the train approached the crossing he was standing on the front end of the car nearest the crossing; that he first saw plaintiff's automobile when it was about 50 feet from the crossing, approaching the crossing very slowly; that at this time the train was about 60 feet from the center of the crossing and running about not more than 10 miles per hour; that when the train was about 10 feet from the east line of the highway he saw that the plaintiff's automobile was continuing to approach the crossing; that he at once gave the engineer a signal to stop the train; that the first car was about 10 feet from the middle of the crossing when plaintiff's automobile struck said car about 3 feet from the front end; that after he gave the stop signal the train stopped at a point 25 feet west of the east line of the highway; that at the time of the collision the train was running about 6 or 8 miles an...

To continue reading

Request your trial
9 cases
  • Grubbs v. Public Service Co.
    • United States
    • Missouri Supreme Court
    • 21 December 1931
    ...App. 442; Albright v. Oil Co., 206 Mo. App. 412; Zumwalt v. Railroad Co., 266 S.W. 717; Finn v. United Rys. Co., 267 S.W. 416; Grief v. Lead Co., 274 S.W. 83; Allen v. Autherieth, 280 S.W. 79; Pett v. Sales Co., 281 S.W. 973; Moore v. Railway, 283 S.W. 732; Conley v. Railway Co., 284 S.W. 1......
  • Grubbs v. Kansas City Public Service Co.
    • United States
    • Missouri Supreme Court
    • 21 December 1931
    ... ... Railroad Co., 266 S.W. 717; Finn v. United Rys ... Co., 267 S.W. 416; Grief v. Lead Co., 274 S.W ... 83; Allen v. Autherieth, 280 S.W. 79; Pett v ... Sales Co., 281 ... ...
  • Wolverton v. Kurn
    • United States
    • Missouri Supreme Court
    • 30 October 1941
    ... ... Stark v. Berger, 125 S.W.2d 870; Potter v ... Railroad, 297 S.W. 159; Grief v. Lead Co., 274 ... S.W. 83; Pedigo v. Railroad, 272 S.W. 1029; ... Rollison v. Railroad, 252 ... ...
  • Phares v. Century Electric Co.
    • United States
    • Missouri Supreme Court
    • 17 April 1935
    ...Tel. Co., 265 S.W. 1005; Porter v. Railroad Co., 71 Mo. 66; Pohlman v. Am. Car & Foundry Co., 123 Mo.App. 219, 100 S.W. 544; Grief v. Natl. Lead Co., 274 S.W. 83; Clark Wheelock, 293 S.W. 456; Hirsch v. Freund Bros. Bread Co., 150 Mo.App. 162, 129 S.W. 1060; Rogers v. Tegarden Packing Co., ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT