Hammack v. Payne

• Decision Date: 15 December 1921
• Docket Number: No. 14117.,14117.
• Citation: 235 S.W. 467
• Parties: HAMMACK v. PAYNE, Agent, et al.
• Court: Missouri Court of Appeals

235 S.W. 467

HAMMACK v. PAYNE, Agent, et al.

No. 14117.

Kansas City Court of Appeals. Missouri.

Rehearing Denied November 7, 1921.

December 15, 1921.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Ernest Hammack against John Barton Payne, Agent for the President, and another. Judgment for plaintiff, and defendants appeal. Reversed.

Robert A. Brown and Richard L. Douglas, both of St. Joseph, for appellants.

Mytton & Parkinson, of St. Joseph, and J. W. McKnight, of King City, for respondent.

ARNOLD, J.

This is a suit to recover damages for personal injuries alleged to have been sustained by plaintiff and for damage to his automobile, both resulting from a collision with an engine and tender being operated on the line of the Chicago Great Western Railroad Company at a public crossing in Andrew county, Mo., on August 12, 1913. On the date of the collision complained of the said railroad was being operated by the Director General of Railroads.

The railroad company, the Director General of Railroads, and the engineer, A. Ray, who was operating the engine at the time, were made defendants in the original petition, but before the case was tried the suit was dismissed as to the railroad company, and the Agent of the President under the Transportation Act of 1920 was substituted as defendant in lieu of the Director General.

The amended petition is in two counts. The first charges:

That when plaintiff attempted to cross the railroad tracks at Weare crossing, on a public highway between the stations of Wyeth and Rea in Andrew county, Mo., "the defendant Chicago Great Western Railroad Company, acting through defendant A. Ray, carelessly and negligently operated a locomotive engine and tender going in a southwesterly direction approaching and over said crossing and into, against, upon, and over the automobile in which plaintiff was riding, and carelessly and negligently drove said engine and tender of cars approaching and upon said crossing without causing any bell upon the engine to be sounded at any point upon said railroad tracks within more than 80 rods of said crossing, and without giving any signal or warning of any kind or character in approaching said crossing while traveling a distance of more than 80 rods, and while going at a high rate of speed, to wit, 60 miles an hour, then and there causing said locomotive engine and tender to be driven against, upon, and over the automobile which plaintiff was driving and the plaintiff, then and there throwing the plaintiff with great force and violence against the automobile and its parts and the ground, then and thereby cutting, bruising, and confusing the muscles, ligaments, arteries, veins, nerves, and membranes of plaintiff's back, left arm, and side, and injuring him internally, and inflicting a serious and permanent nervous shock to his nervous system; that as a result of said injuries plaintiff has and will in the future suffer great bodily pain and mental anguish; that plaintiff has been compelled to expend large sums of money and contract indebtedness for medicines, medical attention, and nursing, and will in the future be compelled to expend sums of money for medicines, medical attention and nursing; that on account of the above and foregoing plaintiff has been damaged in the sum of $10,000."

The second count charges that by reason of the said negligence of defendants plaintiff's automobile which he was driving was so far demolished as to be of no value, and asks judgment for $1,860 therefor.

The answer of the Director General and Engineer Ray, after admitting the formal facts set out in the amended petition, but denying each and every other allegation therein contained, and as further answer, charges negligence of plaintiff, in that he carelessly and negligently drove upon the railroad track mentioned in his petition, without looking or listening for approaching trains thereon, and carelessly and negligently drove upon and attempted to cross said railroad track immediately in front of the approaching train, and in such close proximity thereto that the train could not be stopped in the exercise of ordinary care in time to avoid the collision complained of, and that such negligent conduct of plaintiff contributed directly to cause said collision.

The cause was tried to a jury on November 15, 1920, and resulted in a verdict for plaintiff against both defendants in the sum of $1,000 in damages for injuries to his person, and $1,860 for damages to his automobile. A motion for new trial was duly filed and was by the court overruled. Defendants appeal.

The testimony shows that the accident occurred about 5 o'clock in the afternoon. The railroad track at the place of the accident crosses the public highway in a southwesterly direction. The public highway runs north and south, Plaintiff was approaching from the south. At a point about 85 feet south of the crossing an unobstructed view of the railroad track to the northeast may be had for a distance of approximately 370 feet. Plaintiff testified that when he reached said point he looked to the northeast and neither saw nor heard a train; that he then proceeded at a speed of 4 or 5 miles an hour, the while looking to the southwest to observe the possible approach of a regular train which he believed to be due from that direction at about that time; that he did not again look to the northeast, having satisfied himself that the track was clear in that direction; that his vision was obscured to the southwest somewhat by trees and weeds (not on the railroad right of way); that there is an ascending...