Haworth v. St. Louis-San Francisco Ry. Co.

• Decision Date: 07 April 1927
• Docket Number: No. 4041.,4041.
• Citation: 293 S.W. 508
• Parties: HAWORTH v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

293 S.W. 508

HAWORTH v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 4041.

Springfield Court of Appeals. Missouri.

April 7, 1927.

Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.

Action by J. L. Haworth against the St. Louis-San Francisco Railway Company. Judgment for plaintiff and defendant appeals. Reversed and remanded.

E. T. Miller, of St. Louis, end Ward & Reeves, of Caruthersville, for appellant.

Phillips & Fulbright, of Poplar Bluff, for respondent.

BRADLEY, J.

This is an action for personal injury alleged to have been received in a crossing collision. The cause was tried before the court and a jury. The verdict and judgment went for plaintiff, and defendant appealed.

Three grounds of negligence are charged in the petition, viz.: (1) That defendant'" train was backed over the crossing without sounding the bell or whistle; (2) that defendant failed to flag the crossing as by ordinance it was required to do; and (3) negligence predicated upon the humanitarian doctrine. The answer is a general denial and a plea of contributory negligence.

Error is assigned on the refusal of an instruction in the nature of a demurrer at the close of the case; (2) on the instructions given and refused; (3) on the admission of evidence; and (4) on the refusal to pass or continue the cause on defendant's affidavit of surprise.

What we may term the demurrer to the evidence is based upon two propositions First, that plaintiff was guilty of contributory negligence as a matter of law; and, second, that the facts will not support a judgment based upon the humanitarian doctrine. We shall make disposition of these propositions in the order as given.

Plaintiff in his instructions asked for verdict on the humanitarian theory only; yet he asked and was given instructions from which the jury might have inferred that they could return a verdict for plaintiff if they found (1) that no bell or whistle was sounded; (2) or that the crossing was not flagged. If plaintiff relied only on the humanitarian theory, then there was no occasion for basic instructions except as pertained to that theory. But since such instructions were given we shall rule on the question of plaintiff's alleged contributory negligence. Poplar street in the city of Poplar Bluff runs east and west and crosses defendant's railroad at right angles. August 2, 1924, about 7 o'clock p. m., plaintiff, in an Overland sedan driving 10 miles per hour, approached this crossing from the west. Poplar street is 60 feet in width between property lines, and has a 36-foot pavement, leaving 12 feet on either side of the pavement from the curb line to the property line. On the south side of the street and flush with the property line, and 9 feet and 2 inches west of the west rail of the railroad track, is a garage building which faces north and extends south parrallel with the track There are two light or telephone poles near the northeast corner of the garage building. One of these poles, 10 inches in diameter, is 3 feet south of the curb line and 4 feet west of the east side of the garage building. The other pole is 13 inches in diameter and is 3 feet and 6 inches south of the curb line and 7 feet and 4 inches west of the east side of the garage building. Plaintiff was driving on the right-hand or south side of the pavement and 6 feet north of the curb line. The passenger train, consisting of baggage car and three coaches, had been to the .rotation some distance south of Poplar street, had discharged passengers, and was backing north, with only the crew aboard, in order to clear for a train from the south. The conductor was standing on the rear platform of the rear coach. The train stopped a few feet south of the property line.

Plaintiff's evidence tends to show that the defendant failed to flag the crossing after the stop, and also that the train started up without sounding the bell or whistle; and for the purposes of the demurrer we take such facts as established. The train moved over the crossing at 5 miles an hour, or 7 feet and 4 inches per second. Plaintiff first saw the train when he, as seated in the automobile, was about 10 feet from the track. At that time the rear coach was at the curb line and plaintiff about 6 feet north of the curb line. Since leaving the property line the train had moved 12 feet, and the plaintiff in the same time had moved 24 feet. On the bases given plaintiff's Meat in the automobile was 34 feet west of the west rail of the track at the time the train moved across the property line.

Plaintiff contemplated striking the crossing at an angle, and had, perhaps, slightly turned the steering wheel to the right, but at that moment he saw the train. He then turned to the left or north, but was not able to make the turn clear of the track, and the automobile was struck 3 feet north of the center line of the street. The automobile moved, according to plaintiff's figures, after he first saw the train and turned to the left, 15 feet north, and east a sufficient distance to be on the track before being struck. Plaintiff testified that at the time the train struck the automobile the front thereof "was pointed toward the northeast, and when the train struck my car it pushed the back end farther north and made the front end turn more to the east." After the automobile was struck it was, according to plaintiff's evidence, pushed on and along the railroad track a distance of 73 feet before the train was stopped. According to plaintiff he was not physically injured until at the moment the train stopped, when the automobile was crushed down and wedged under the rear platform of the rear coach. What occurred after the automobile was struck will be considered under the wing of the demurrer challenging right to recover on the humanitarian doctrine theory.

Plaintiff is a dentist and resided on Poplar street west of the crossing in question and was thoroughly familiar with this crossing. He knew that a flagman generally flagged this crossing, and as he saw no flagman he assumed that there was no train approaching. On direct examination plaintiff was not directly asked about looking for a train as he approached this crossing, but testified on cross-examination:

"There being no flagman there, I wasn't thinking about the train. When I reached that point at which time the train came out from behind that building I had not up to that time seen the train. I hadn't looked for it at that time. When I turned the steering wheel to swerve to the right to hit the track at an angle is the first time I looked for it; that was the first time I looked. Up to that time I could not see any part of the railroad track except where it crossed the street. I looked for the train or anything else that might be crossing the street in front of me. I expect I was about 30 feet back from the track when I last looked for the train. * * * If I had looked from the point thirty feet back from the track I could not have seen the train, because the train would have been too far back down the track behind that garage building. * * * I looked for a flagman, and as there was no flagman there I was just going straight over. I didn't look closely for the train approaching from the south there at any point before I reached a point 10 feet from the railroad track. I just took a general glance. After I passed Fifth street I looked for a train; that was probably thirty-five or forty feet back from the crossing. A car passed me there, and I had seen the car cross the track. This car passed me, and I saw no sign of a train and no sign of a flagman."

While plaintiff says that he looked, he also says that he did not look. But whatever he said the conceded facts speak for themselves. It was shown that plaintiff was traveling at 10 miles an hour, that his brakes were in good condition and the pavement dry, and that he could have stopped his automobile in 12 feet. It is conceded that plaintiff was 34 feet west of the west rail of the track when the train was at the property line of the street. There was then nothing to obstruct his view. He drove 24 feet before he saw the train after it was in plain view, and when to look was to see. Learned counsel for plaintiff fully appreciate this, and in their brief seek to excuse plaintiff's failure to look on the ground that "his attention had been engrossed to some extent at least by a car that had passed over said track ahead of him and was approaching him and which he had to pass before coming to the track."

There was nothing to show that plaintiff should have given this passing automobile any attention. It was going in the opposite direction to plaintiff and was on the north side of the street. He was in no danger from this passing automobile, and it was not such as would excuse the diversion of his attention. Wheat v. City of St. Louis, 179 Mo. 572, 78 S. W. 790, 64 L. R. A. 292. If plaintiff's negligence is to be held a question of fact for the jury it must be so held on the theory that there was no sound of the bell or whistle and no flagman, and that, such being the cane, plaintiff could proceed without looking on the assumption that there was no train approaching; and this is the theory upon which plaintiff chiefly relies. As supporting his contention plaintiff cites Shaffer v. Chicago, R. I. & Pac. R. Co., 300 Mo. 477, 254 S. W. 257; Brown v. Chicago, R. I. & Pac. Ry. Co. (Mo. Sup.) 252 S. W. 55; Swigart v. Lusk, 196 Mo. App. 471, 192 S. W. 138; Donohue v. Railroad, 91 Mo. 357, 2 S. W. 424, 3 S. W. 848; Killingsworth v. Railroad (Mo. App.) 209 S. W. 301; Kenney v. Railroad, 10,5 Mo. 270, 15 S. W. 983, 16 S. W. 837; Pierson v. Railroad (Mo. App.) 275 S. W. 561.

The outstanding distinction between the cases cited and the cause at bar is the rate of speed of the oncoming train. In all the cases cited by plaintiff the approaching train was moving at a rapid rate of speed. Here the train, moving at 5 miles per hour, was in plain view of plaintiff...