Hanna v. Kansas City Southern Railway Co.
| Decision Date | 06 April 1914 |
| Parties | R. C. HANNA, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
Cyrus Crane, Geo. J. Mesereau and O. L. Cravens for appellant.
Boyle & Howell and Joseph S. Brooks 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, Missouri. A south bound freight train, travelling at the rate of forty 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 ten 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 $ 1500 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 travelling at an unlawful rate of speed or at forty 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 thirty-five to forty 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 travelling 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 forty 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 travelled 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 travelled by the train in the short space of time occupied by the wagon in travelling 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 travelling at the rate of forty 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 seventy-five to one hundred 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 seventy-five 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 thirty or forty 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 track 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 witnesses. North of the crossing the track makes a curve, and between the depot and the restaurant is a vacant space fourteen feet in width through which a view can be had of a segment of the track. The depot sits close to the north side of the street, and on the west side of the track.
As plaintiff drove toward the crossing, and when about fifty or sixty feet distant therefrom, he stopped and something was said between the two men in the wagon about looking out for a train. At that point they could not see to the north for the building, but they heard no train and the wagon proceeded. Hamners sitting on his porch says he saw the wagon stop and he heard no train. Gaston was sitting with plaintiff and was north of him. The team was going in a slow walk from three to three-and-one-half miles per hour. As they passed the opening between the restaurant and the depot plaintiff looked through there to the north and saw no train, he looked to the south and saw none and not hearing or seeing any, the team proceeded on its way past the depot. Plaintiff's testimony, as well as that of other witnesses in his behalf, is that the curve in the track and the depot so shuts off the view of a train approaching from the north that when one is driving in a wagon the horses will be on the track before the driver is far enough past the depot to see north along the track more than two hundred or two hundred and forty feet.
Defendant's view of the evidence is that the two men in the wagon had an agreement that Gaston would look to the north and plaintiff would look to the south, and that plaintiff trusted to Gaston doing that duty and never looked north for himself. There was a general understanding to this effect, and yet the evidence shows that plaintiff also looked north as he passed the open space between the restaurant and the depot, and also after he passed the depot. He saw the train when it was 150 or 200 feet away.
A surveyor, placed on the stand by defendant, testified that when the edge of the depot next to the track was reached, one could see 283 feet down the track and this distance would increase as one approached the track; that from the east edge of the restaurant one could see down the track 441 feet and from the west edge of the depot one could see 453 feet. It was in evidence that from the head of the horses back to the driver's seat was twelve feet, and that from the east edge of the depot to the track was eighteen and three tenths feet. The argument, therefore, is that there was a space of...
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Yeomans v. Herrick
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