Hart v. Chicago, M. & St. P. Ry.Co.

• Decision Date: 11 February 1924
• Docket Number: No. 14724.,14724.
• Citation: 265 S.W. 116
• Court: Missouri Court of Appeals
• Parties: HART v. CHICAGO, M. & ST. P. RY. CO.

265 S.W. 116

HART v. CHICAGO, M. & ST. P. RY. CO.

No. 14724.

Kansas City Court of Appeals. Missouri.

February 11, 1924.

Rehearing Denied October 9, 1924.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

"Not to be officially reported."

Action by James M. Hart, Jr., against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Fred S. Hudson, of Kansas City, for appellant.

A. G. Knight, of Trenton, and Kelly, Buchholz, Kimbrell & O'Donnell, of Kansas City, for respondent.

ARNOLD, J.

This is a suit in damages for loss of services of plaintiff's wife, and for medical and hospital bills incident to her injuries. Damages are asked in the sum of $40,000, and a judgment for plaintiff in the sum of $6,000 was entered on the verdict.

The suit grew out of a collision on October 4, 1921, at a place known as McKee's crossing, in Clay county, Mo., near Excelsior Springs, when one of defendant's freight trains struck a Ford touring car driven by plaintiff's wife, and which was owned by her father, Benj. 0. Dincler. With Mrs. Hart in the car was her mother, Mrs. Dincler. The collision resulted in the death of Mrs. Dincler and serious injuries to plaintiff's wife.

At the place of the accident, the track of defendant runs substantially east and west, and it is crossed at this point by a much traveled public highway, running north and south. Mrs. Hart was driving north and was seated on the left side of the car, while her mother was seated beside her on her right. The highway south of the intersection, for a distance of about one-fourth of a mile, is upgrade until the crossing is almost reached, at which place the ground is practically level, to a point beyond and north of the track. At the crossing the highway was quite rough and the crossing boards were below the surface of the rails and the highway. At a point 400 or 500 feet east of the crossing, the track curved northward into a deep cut, and the view of trains approaching from the east was somewhat obscured as to persons on the highway at the crossing and for a distance south thereof. There is a down grade from the east, and the train with which Mrs. Hart collided was from that direction.

On the witness stand, Mrs. Hart stated she drove to the crossing at the rate of about two miles an hour, looking all the time for the possible approach of trains; she saw no smoke and heard no sound of a train or signal; that when the front wheels of the automobile were within 12 feet of the south rail of the track she came to a dead stop, with her engine running; that she looked to the east and then to the west; that her view to the east was obstructed by the cut, so that she could not see a train beyond the cut approaching from that direction. Hearing no train and seeing none, she started across the track. Her first sight of the train occurred when her front wheels had reached a point about midway between the rails, when the train loomed up on her right, at which time it was some distance out of the cut; that she gave her engine more gas and the car responded; that the train "seemed to fall" on her; that the car was struck as its front wheels were 2 or 3 feet north of the north rail.

The evidence shows the train consisted of a locomotive drawing 40 or 50 freight cars, and that it approached the crossing at a rate of speed variously estimated at 30 to 50 miles'an hour. Mrs. Hart also testified that, after she started her car from the dead stop, she continued at a speed of about two miles per hour until struck by the engine at the right rear wheel; that on approaching the track, and before she stopped the car, her mother cautioned her to drive slowly, but said nothing further. The evidence shows that both occupants of the car were familiar with the crossing. There was substantial evidence tending to show that no signal was given of the approaching train within a quarter of a mile of the crossing, and that there was a total failure to give the statutory signals.

The charge of negligence in the petition is failure to sound the whistle at a distance of 80 rods from the crossing, and at intervals until the engine reached the crossing; failure to ring the bell at a distance of 80 rods from said crossing, and to continue to ring the bell until said engine reached and crossed over said crossing; failure to construct and maintain said crossing as required by law, and that said crossing was thereby rendered unsafe and dangerous to travelers on the highway; that said engine was being operated at a high, unlawful, and dangerous rate of speed in approaching said crossing, owing to the fact that the view of approaching trains was obscured as to travelers on the highway. The petition also pleads humanitarian negligence, in that plaintiff's wife was in a position of imminent peril and danger, which was known to defendants, or by the exercise of ordinary care could have been known to them in time to have slackened the speed of the approaching train, and thus have enabled plaintiff's wife to get across said tracks and to a position of safety before the happening of said collision; and that by reason of the premises said engine was caused to run into and collide with the automobile in which plaintiff's wife was riding, and by reason thereof she sustained said injuries. The injuries are alleged to be concussion of the brain, a broken right arm, and injury to the muscles, nerves, and tendons thereof, also a severe injury to her back and spine; the bones in the region of her hips and pelvis were displaced and fractured, causing inflammation of the organs of the pelvic and abdominal region; that all of said injuries are painful and permanent, thus rendering plaintiff's said wife a cripple for life, and that by reason thereof plaintiff has been deprived of her society, companionship, and services, and will be so deprived for the remainder of her natural life.

Separate answers were filed on behalf of defendant railroad company and of the engineer, who was included as a party defendant. The answer of the railroad company is a general denial and a plea of contributory negligence. The answer of the engineer pleads lack of jurisdiction of the trial court, for the reason that neither plaintiff nor either of the defendants was a resident of Grundy county, and that defendant Potter, the engineer, was a resident of Jackson county and plaintiff a resident of Clay county, Mo., at the commencement of this action. The suit was instituted against both defendants in Grundy county, but by change of venue was taken to Daviess county, where it was tried to the court without the aid of a jury, and largely upon evidence offered in the case of Della Hart against defendants, based upon the same accident, and heard at the same term of court. A demurrer offered in behalf of both defendants was overruled, and the court...