Hatten v. Chicago, B. & Q. R. Co.

• Decision Date: 29 June 1921
• Docket Number: No. 16662.,16662.
• Citation: 233 S.W. 281
• Parties: HATTEN v. CHICAGO, B. & Q.R. CO.
• Court: Missouri Court of Appeals

233 S.W. 281

HATTEN v. CHICAGO, B. & Q.R. CO.

No. 16662.

St. Louis Court of Appeals. Missouri.

June 29, 1921.

Rehearing Denied July 22, 1921.

Appeal from Hannibal Court of Common Pleas; William T. Ragland, Judge.

"Not to be officially published."

Action by James E. Batten against the Chicago, Burlington & Quincy Railroad Company, revived after plaintiff's death in the name of Ida A. Hatten, administratrix. From a judgment for plaintiff, defendant appeals. Affirmed.

H. J. Nelson, of St. Joseph, and Geo. A. Mahan and Dulany Mahan, both of Hannibal, for appellant.

D. H. Eby and Ben E. Hulse, both of Hannibal, for respondent.

NIPPER, C.

This action was brought by James E. Hatten. He recovered judgment for the sum of $5,000, for personal injuries sustained by being struck by an engine and train of defendant. James E. Batten died, and the cause was revived in the name of the administratrix, Ida A. Hatten. The accident happened where the Hannibal and Paris gravel road crosses defendant's line of railway, about a mile and a half west of the city limits of Hannibal. Defendant's railway crosses this gravel road at the point where the accident occurred, at an acute angle going west. The Missouri, Kansas & Texas Railway runs parallel with defendant's line of railway, and 83½ feet south at this crossing. On account of the angle at which the two lines of railway cross the gravel road, it is 229 feet from the point where the gravel road crosses the Chicago, Burlington &' Quincy Railroad to where it crosses the Missouri, Kansas & Texas Railway. Plaintiff was going west over this gravel road, driving a team of horses hitched to a spring wagon about 7 o'clock on the evening of the accident, which occurred on November 17, 1916. Plaintiff had been living in Rails county, west of this crossing, and had traveled over this crossing for a number of years. When plaintiff got within 100 feet of this crossing, his attention was drawn to a train coming from the east, traveling in the same direction in which he was traveling. He saw the headlight of the engine, which was something near a quarter of a mile away when he first observed it. He could see the reflection of the light, which extended up the valley and to the south of defendant's line of railway. He continued to drive toward the crossing, and, as he said, listened for the ringing of the automatic bell which had been maintained at this crossing by defendant for a number of years, but which on this occasion was out of order and did not ring. He continued to look back as he drove toward the track. Plaintiff had traveled over this road for 10 years, during all of which time this bell had been at this crossing. He says he had never known it to fail to ring when trains were passing before, although he had not traveled over this particular road for about three weeks prior to the accident. The railroad approaches the gravel road from the south with a curve, swinging to the north as it crosses the gravel road. Plaintiff states that he thought the train was on the Missouri, Kansas & Texas track, because no bell was ringing at the Chicago, Burlington & Quincy crossing, because of the way the light reflected up the valley from the headlight on the engine, and for the further reason that he noticed the train was carrying a passenger coach, and he did not know that the Chicago, Burlington & Quincy ever carried a passenger coach on its freight trains, but that he had noticed such being done on the Missouri, Kansas & Texas freight trains. When his horses stepped on the front rails, the engine came around the curve and flashed the light on them. They suddenly turned to the right, threw plaintiff out, and when he fell down by the side of the track...