Hall v. St. Louis-San Francisco Ry. Co.

• Citation: 240 S.W. 175
• Decision Date: 08 April 1922
• Docket Number: No. 21507.,21507.
• Parties: HALL v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

240 S.W. 175

HALL v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 21507.

Supreme Court of Missouri, Division No. 1.

April 8, 1922.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Frank L. Hall against the St. Louis-San Francisco Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

J. W. Halliburton & Son, of Carthage, Walden & Andrews, of Joplin, and B. H. Esterly, of Carthage, for appellant.

W. F. Evans, of St. Louis, Howard Gray and Allen McReynolds, both a Carthage, and Mann & Mann, of Springfield, for respondent.

JAMES T. BLAIR, Judge.

The trial resulted in an involuntary nonsuit. The motion to set this aside was overruled, and judgment rendered for the railroad. This appeal followed.

Appellant was injured at the point at which Central avenue, in the city of Carthage, crosses respondent's railway tracks. The railway is straight for some distance on each side of Central avenue. It does not run exactly north and south, but a little northwestwardly and southeastwardly. Central avenue runs east and west. Two tracks cross it; one is the main line track, and is the track farther east; the other is a switch track, which is laid 16 feet west of the main line track. It leaves the main line track 200 or more feet south of the crossing. Appellant approached the tracks from the west along Central avenue. He was driving a five-passenger Elgin automobile, and was alone. He was perfectly familiar with the crossing, and had been for many years. A block or so away he had been driving at the rate of 14 miles per hour, but as he approached the crossing he slowed down to 10 miles per hour. On the east side of Central avenue are billboards, east of the sidewalk and near the property line, which come to an end 77 feet west of the main line track, and 61 feet west of the switch track. After the billboards are passed, a train could be seen many hundreds of feet south of Central avenue, if one was approaching. There was an unobstructed view to the north for 200 feet, and then the ground on which the section house stands interfered to some extent with a view of the tracks. When appellant, moving 10 miles per hour, reached a point near the end of the billboards, he looked southeast. From this point he could see the main track for 300 feet. He saw no train. He heard no signals or train noises. He then turned to look to the north. He saw no train coming from that direction. His car moved to a point about 40 feet west of the main line before he looked southeast again. He was then 20 to 25 feet from the switch track. When he looked from this point he saw the train, some 200 feet distant, coming from the south at the rate of 40 to 50 miles per hour. He did not apply his emergency brake, and does not make it clear that he applied the foot brake. He proceeded across the switch track, and then turned his car to the north in an effort to keep off the main track crossing and avoid the collision. He turned too late, and the side of his car was struck by the engine and raked by the cars. He testified that with his car running 10 miles per hour he could stop it "somewhere in the neighborhood of 20 feet." There is a city ordinance which limits trains in Carthage to 12 miles per hour. Appellant says his actions at the time were due to the fact that he became confused as to which of the two tracks was the switch track and which was the main track. The evidence in this connection and that concerning the distance of the billboards from the tracks and some other matters may be more particularly referred to later.

I. There was sufficient evidence of negligence on the part of respondent and of the causal connection between it and appellant's injury to take those questions to the jury. Monroe v. Railroad, 280 Mo. loc. cit. 488, 219 S. W. 68.

II. The question whether appellant was guilty of contributory negligence is not disposed of by the foregoing rule. It is so held in the case just cited, and in Alexander v. Railway (Mo. Sup.) 233 S. W. loc. cit. 49, and many other decisions. If contributory negligence conclusively appears to have formed a part of the efficient cause of the injury, then the judgment must be affirmed.

III. Appellant was a witness. He did not testify he knew of the speed-limiting ordinance, or that anything he did was done in reliance upon an observance of it by respondent. In the circumstances that question is of no consequence on this record. Mockowik v. Railroad, 196 Mo. loc. cit. 571, 572, 94 S. W. 256, and cases cited.

IV. The apparent confusion in appellant's testimony concerning some of the distances to which he testified is cleared up by his reply brief and certain principles of geometry. The reply brief concedes the billboards ended 77 feet from the main line. The fact that appellant could see but 300 feet down the track from the point at which he first looked south or southeastwardly after drawing near a point in Central avenue almost opposite the end of the billboards demonstrates that the point from which he looked must have been several feet west of a line drawn due north from the end of the billboards across Central avenue. If appellant was at the moment 25 feet north of the line of the billboards, and could see only 300 feet down the main line, the line of vision departed from the point to which he could see on the main line 77 feet in a distance of 275 feet. It would depart proportionately for the distance...