Hanna v. Kansas City Southern Ry. Co.
| Decision Date | 06 April 1914 |
| Docket Number | No. 10,995.,10,995. |
| Citation | 178 Mo. App. 281,165 S.W. 1148 |
| Parties | HANNA v. KANSAS CITY SOUTHERN RY. CO. |
| Court | Missouri Court of Appeals |
Plaintiff, while driving east over a railroad crossing in a town was struck by a freight train coming from the north at a high rate of speed, in violation of a town ordinance. On the north side of the street the view of the track to the north was obstructed by a store building, a restaurant, and a depot, and just beyond the depot the track curves out of view. Between the depot and the restaurant was a vacant space 14 feet wide, through which a view could be had of a segment of the track. As plaintiff drove toward the crossing, and when about 50 or 60 feet therefrom, he stopped and looked to the north through the opening, but saw and heard no train. The team was going at a slow walk, at from 3 to 3½ miles per hour. After the depot was passed there was an open space of about six feet, where a view of the track could be obtained. Plaintiff did not see the train until his team got on the track, and then he attempted to get over in front of it, but was unable to do so, and the train struck the rear of his wagon. There was evidence that no signal was blown until the danger signal was sounded, just before the accident. Held, that plaintiff was not negligent as a matter of law, either in not maintaining a sufficient lookout or in attempting to pass over the crossing in front of the train when collision was imminent.
4. NEGLIGENCE (§ 72)—CONTRIBUTORY NEGLIGENCE —ACTS IN EXTREMIS.
Failure of a person injured by the alleged negligence of another to exercise the best judgment possible, in order to escape injury which is imminent, does not constitute contributory negligence.
Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.
Action by R. C. Hanna against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Cyrus Crane and Geo. J. Mersereau, both of Kansas City, and O. L. Cravens, of Neosho, for appellant. Boyle & Howell, and Joseph S. Brooks, all of Kansas City, for respondent.
Plaintiff and a companion, sitting in the spring seat of an ordinary farm wagon, drove over defendant's railway crossing on Beaver street in the town of Anderson, Mo. A south-bound freight train, traveling at the rate of 40 miles an hour, struck the rear end of the wagon, throwing the men out and injuring plaintiff. An ordinance of the town limited the speed of trains to 10 miles an hour, and the case was submitted to the jury on the question of negligence in the rate of speed at which the train was running. The answer was a general denial, and a plea of contributory negligence. The jury returned a verdict of $1,500 in favor of plaintiff. It is charged that plaintiff was negligent: First, in failing to use due care to timely ascertain the approach of the train; and, second, in attempting to beat the train over the crossing after its approach was discovered. And we are urged to reverse the case upon the ground that, as matter of law, plaintiff was guilty of contributory negligence.
To justify us in doing so, that negligence must appear so clearly that reasonable minds can draw no other inference or conclusion than that the plaintiff was lacking in the care demanded of him under the circumstances. So long as there is room for reasonable minds to draw different conclusions from the facts, the determination of the question of contributory negligence must be left to the jury, even though the question be close and the compass within which the alleged negligence lies be narrow.
Before proceeding to investigate this question, it will be well to dispose of another contention over a fact necessarily involved in the question of contributory negligence. That contention is that there was no evidence to show that the train was traveling at an unlawful rate of speed, or at 40 miles per hour. We think there was. One witness says that his attention was attracted to the train because it was running so fast. Another says, "It was just hitting the high rails." These two and a third say it was running from 35 to 40 miles an hour, but their testimony as to the rate was stricken out by the court, on the ground that the witnesses had not qualified themselves to testify to the rate. Their evidence shows, however, that the train was traveling through the town at a very high rate of speed. Plaintiff had been a railroad agent for four years, and also a railway postal clerk, and in that way had had experience in observing and judging the speed of trains. He testified that the train was traveling 40 miles an hour. His testimony was objected to, but the objection was overruled. Now, it is true plaintiff testified that he could not tell the speed of the train at the instant he saw the train bearing down upon him. If he had said that, it would be unbelievable. Because in that thrilling and awful instant he had no time to watch and judge of its approach, as his mind was occupied with the all-absorbing business of getting out of its way. But from the moment he first saw it until it struck the rear end of his wagon, coupled with the distance it traveled in that infinitesimal fragment of time and the speed with which its long train of cars passed him after the collision, he did have sufficient data to reach a conclusion as to its rate of speed. And this is, in effect, what he testified to. The objection, therefore, went to the weight of his testimony rather than its admissibility. We cannot say it was without probative value. It is corroborated by the distance traveled by the train in the short space of time occupied by the wagon in traveling a portion only of the length of the wagon and team across the track. The only other persons who could have testified positively and definitely as to the speed of the train were the engineer and fireman on the engine, and they were not put upon the stand. We must therefore consider the question of plaintiff's contributory negligence in the light of the established and uncontroverted fact that the train was traveling at the rate of 40 miles an hour.
Was plaintiff clearly and indubitably guilty of contributory negligence in not discovering the approach of the train before the track was reached? Undoubtedly he was not so far as his duty to discover the train by hearing is concerned. Hamners, who was sitting on the porch of his hotel, and whose habit and custom it was to watch and observe the passing of trains, who saw plaintiff's wagon as it went down the street toward the crossing, and who, so far as the evidence shows, was not absorbed, so that he would not be likely to hear the train, says he did not hear it until the danger whistle was blown, and then plaintiff was on the track, and the train from 75 to 100 feet away. He did not hear a bell nor a whistle, nor the approach of the train, until the danger whistle aforesaid. Love, the liveryman whose business it was to meet passenger trains and local freights, and who had been to the depot and had returned, or was returning, from thence, and was 75 yards from the railroad when the train crossed Main street 212 feet from the crossing in question, says he did not hear the whistle until after the engine had passed Main street. So that what he heard was the danger whistle that Hamners testified to. Stilwell, a lumberman whose business was across the tracks from the depot, was standing 30 or 40 feet from the accident, and he never heard the train approach until it gave the danger whistle. Gaston, who was in the wagon with plaintiff, testified they listened for a train, but heard none, until they saw the train upon them, when it gave the danger whistle. Plaintiff testified that as they drove along the street and were approaching the crossing, they stopped the team a moment, and, not seeing or hearing a train, went on; that they listened for a train, but heard nothing until they got on the track. So that plaintiff was not negligent in failing to listen for or hear the train as it approached.
Was he negligent as matter of law in failing to see it before he got on the track? This calls for a statement of the surroundings at the crossing. Plaintiff was driving east. The train was coming from the north. On the north side of the street the view of the track to the north was obstructed by a store building, a restaurant, and the depot. In addition to these the trees and foliage thereon helped to obstruct the view, though it is not clear just where the trees were located. However, mention is made of them by certain of the...
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