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

• Decision Date: 31 July 1924
• Docket Number: 24094
• Parties: HART v. CHICAGO, M. & ST. P. RY. CO. et al
• Court: Missouri Supreme Court

264 S.W. 902

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

No. 24094

Supreme Court of Missouri, First Division

July 31, 1924

Appellants' Motion to Modify Opinion Overruled August 27 1924.

Fred S Hudson, of Kansas City, for appellants.

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

OPINION

Statement

WOODSON J.

The plaintiff instituted this suit in the circuit court of Grundy county against the defendants to recover $ 100,000 damages for personal injuries, sustained through the alleged negligence of the defendant. A change of venue was taken of the case to Daviess county, where a trial was had before the court and jury which resulted in a verdict for the plaintiff for the sum of $ 50,000, upon which the court duly rendered judgment for the plaintiff and against the defendants. After moving unsuccessfully for a new trial, the defendants duly appealed the cause to this court.

The suit grew out of a collision that happened near Excelsior Springs in Clay county, at what is known as McKee Crossing, on October 4, 1921, between one of the defendant's railroad trains and plaintiff's automobile. The railroad at that point runs practically east and west, and the wagon road runds north and south. The railroad just before reaching the crossing comes from the north, and then curves to the west, crossing the public road at right angles, and then curves sharply again to the north. Much testimony was introduced tending to show that no whistle was blown or bell rung after the train left the overhead bridge, about one-half mile to the northeast of the crossing.

The engineer, Byron Potter, one of the defendants, testified that the track curves, and at a point 450 to 500 feet east of the crossing a train is obscured from the view of those using the public roadway. There was other testimony showing that to the east and west of the crossing the railroad runs through cuts, thus hiding the view of the approaching trains from both directions from those using the public highway. About a half mile northeast of the crossing, the railroad runs through another cut and underneath an overhead bridge. This crossing was very much used in traveling between Kansas City and Excelsior Springs; many automobiles cross there at all hours of the day. At this point the public road is 40 feet wide, and a traveler north bound coming up the grade to the track cannot see clearly to the east or west on account of the ground being higher than the public roadbed, also on account of embankments on and along the defendant's right of way.

About 2:30 p. m. October 4, 1921, the plaintiff left her father's home, her mother seated beside her, and started for Excelsior Springs. The steering wheel was on the left side of the Ford car, and plaintiff sat with her mother on the same seat to the right of her, driving northward and coming to the hill aforesaid. As she descended the hill plaintiff looked to the northeast and saw no train, observed no smoke indicating the approach of any train, then drove down the hill, across the ravine, and up the grade until the front of her machine was within 12 feet of the nearest rail of the railway track, and there stopped. The approach from the point where she stopped to the railway was rough, and the planks between the railway tracks were loose, requiring close attention on the part of the driver while crossing same. The plaintiff, standing still within 12 feet of the track as aforesaid, looked carefully to the east and listened, and saw no train, and heard no bell, whistle, or other sound indicating the approach of any train. She looked to the west with like result, then started her machine forward, drew onto the track, and was nearly across the track when she was struck by a west-bound engine drawing 40 or 50 freight cars, traveling at a rate of speed conceded by the train crew to be not less than 30 miles per hour, and by some witnesses the speed was placed as high as 40 to 45 miles per hour. The train struck the rear of the automobile, hurled it westward, tearing out the west cattle guard on the north side of the railway, and dragging the automobile with its occupants 100 feet or more westward. The machine was demolished. Mrs. Dincler was killed, and Mrs. Hart, the plaintiff, was underneath the wreckage.

In the angle between the railway and the public road and to the east of the public road, lies a part of the McKee farm, which is a tract of 660 acres. There at the time of the unfortunate accident, which gives rise to this litigation, Edwin J. McKee, aged 22, born and reared on the McKee farm, was at work baling hay, assisted by his neighbors, Welton and Rhodus. They were within sight and hearing of the freight train here referred to from the time it came from under the overhead bridge until it passed around the curve immediately east of McKee Crossing. So placed that they could hear and see, their faculties of sight and hearing being good, these hay balers testified they heard no whistle or bell while the train moved from the overhead bridge to the point of collision with plaintiff's car. Mrs. McKee, the wife of the owner of the farm, heard the train go by as she was picking beans in her garden, and noticed that it did not whistle. The McKees had much stock on their farm on both sides of the railway company's right of way, and she noticed trains particularly on account of the fact that the stock sometimes got out and onto the right of way, and had been injured. Counsel asked her if the trains whistling daily were not matters of such common occurrence that doubtless she would not notice as to whether a train whistled or not; if she would undertake to say that in her house she noticed the striking or the ticking of her clock every time it struck or ticked. This old lady very aptly remarked that whilst she would not notice that, she would almost instantly notice the failure of the clock to strike or tick because the thing that happened out of the ordinary was the thing that would attract her attention.

George E. Roe, Jr., an old-time railway brakeman, was riding along the public road close to the railway company's right of way. In the car with him were his mother and father, the father being general agent of the Santa Fe Railway Company. Mr. Roe and his mother both testified that they saw the train moving at a rate of about 40 miles per hour as it approached the railway crossing, and that no whistle was blown nor bell rung. Testimony was offered by defendant to show that the statutory warnings were given, some of the witnesses having the engine whistle at one place and some at another. Some of them did not hear the bell. There was sharp conflict on this question as to whether or not the statutory signals were given. The witnesses for the defendant, on this point, were with one exception employees. Plaintiff's witnesses, with the exception of plaintiff, were all disinterested.

The testimony of plaintiff was to the effect that she stopped her automobile with the front wheels 12 feet south of the south rail of the defendant's track. The evidence was that:

From this position a train approaching from either direction could be seen for a distance variously estimated at from 450 to 500 feet. At this point the plaintiff took her observations. She looked carefully and listened. She heard no sound or warning and saw no approaching train. Thinking she was safe, she started her automobile, and was attentive to the road on account of its rough condition.

'Q. Well, now, when you came down the hill into this valley, and then up to the crossing, describe the grade right up to the crossing. A. Well, it is very steep.

'Q. And tell the jury whether or not that grade there is macadamized or graveled. A. It is not.

'Q. Now, describe the best you can the boards as they were then, to the jury. A. Not as they were at the time?

'Q. As they were at that time. A. Well, they were very rough and sunk. * * * They were old.

'Q. And was there any macadam between the boards that were laid next to the rails on the inside? A. There was not.

'Q. And what was the condition of those boards that were between or on the outside, with reference to being level or cupped up? A. They were low -- they were unlevel.

'Q. Tell how the approach to the crossing was. A. Was very rough.

'Q. And when you came up to the crossing there, now, go ahead and in your own way tell the jury what you did. A. I drove up there, and I stopped in 12 feet of the south rail; and I looked east, and I looked west, and I saw no train, and I heard no whistle or heard no bell; and I started on, and just as my front wheels was between the rails, why, I looked up and I saw this train around the curve.

'Q. How near was it to you? A. Well, I don't know, but it seemed to be coming so fast that it seemed to fall on me before I could get across.

'Q. What part of your machine was struck by the train? A. The rear right wheel.

'Q. About how fast were you traveling as you went up the 12 feet from your stopping point to the track? A. About 2 miles an hour.

'Q. Just moving along slow? A. Yes, sir; slowly.

'Q. And then, when you got up on the track, how fast was you moving? A. About 2 miles.

'Q. Did you try to hurry your machine up? A. Yes, sir; to get across; and I just lacked a few feet of being across. * * *

'Q. What were you doing then, Mrs. Hart, after you had started across the tracks there? A. * * * As I started across the track I was watching my road, and as my wheels were between the rails I looked up, and this train was around the curve, and I pulled down my gas and started, tried to get across, and it caught the rear wheel.'

The engineer, Byron Potter, one of the defendants in the case testified that he was seated in the cab of...