Hill v. Missouri Pac. R. Co.

• Decision Date: 03 July 1931
• Docket Number: No. 4910.,4910.
• Parties: HILL v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

40 S.W.2d 741

HILL v. MISSOURI PAC. R. CO.

No. 4910.

Springfield Court of Appeals. Missouri.

July 3, 1931.

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

"Not to be officially published."

Action by Walter Hill against the Missouri Pacific Railroad Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Thos. J. Cole, of St. Louis, Russell L. Dearmont and W. C. Russell, both of Cape Girardeau (E. J. White, of St. Louis, of counsel), for appellant.

Lawrence E. Tedrick and O. A. Tedrick, both of Poplar Bluff, for respondent.

BAILEY, J.

Plaintiff filed his petition on the 3d day of June, 1930, seeking damages against defendant railroad company for injuries to his person received in a collision accident on the 5th day of May, 1930. The petition alleged that defendant's railroad ran through the town of Naylor, Mo., east and west, crossing a certain street at right angles; that said town of Naylor had passed an ordinance, in effect on May 5, 1930, limiting the speed of trains passing through the town to 6 miles per hour, and a further ordinance requiring the blowing of the whistle or ringing the bell when approaching crossings; that on said date plaintiff was riding in an automobile driven by Claude G. Gambling in a northerly direction along said street which crosses defendant's railroad at right angles, and at that time defendant's agents and servants ran and operated an extra train over said railroad track and crossing at the rate of 25 or 30 miles per hour in violation of said speed ordinance; that they also failed to sound the whistle or ring the bell on said locomotive, as they approached said crossing; that plaintiff did not know said train was approaching said crossing until they were almost upon the track, when he immediately called the driver's attention to same, who thereupon used every effort to prevent said train from colliding with said automobile but failed to do so, and as a result the collision occurred and the plaintiff was thereby severely injured. There is a further plea setting up the humanitarian or last chance doctrine, but that phase of the case is not involved in this appeal. The answer, after a general denial, set up contributory negligence as a defense. Upon trial to a jury, plaintiff obtained a verdict and judgment in the sum of $2,500, and defendant has appealed.

The court refused defendant's instruction in the nature of a demurrer to the evidence. This is charged as error. It is urged that under the evidence defendant was guilty of contributory negligence barring his recovery as a matter of law. In reviewing the evidence on this question, it is required that we accept as true the evidence most favorable to plaintiff and give to him the benefit of all reasonable deductions tending to support the verdict of the jury. Toenenboehn v. St. Louis-San Francisco R. R. Co., 317 Mo. 1096, 298 S. W. 795. The evidence shows that, on the fatal day when plaintiff was injured and the driver, Claude G. Gambling, was killed, plaintiff lived about 3½ miles south of Naylor. He was a tie inspector, 45 years of age at the time of the accident. He testified that the car belonged to Gambling, with whom he was riding to Oxly. In order to reach their destination from plaintiff's place of abode, where he entered the automobile, it was necessary to drive north and pass through the town of Naylor. As they traveled north, approaching the town, defendant's railroad track was visible about a quarter of a mile to the east. The road ran north to defendant's right of way, about 30 feet from the track, and at that point plaintiff looked in both directions along the track, "saw no train, saw no smoke, heard no bell, heard no whistle." Upon reaching the right of way of defendant, the road turned west and ran parallel to the railroad track for about 900 feet. Plaintiff further testified: "We turned west on the south side of the track and drove west down the track about a half a quarter; I judge about three hundred yards. Then the road made a sharp curve to the north across the track. Mr. Gambling made the turn to go north across the track and when we were in about ten feet of the track I saw the train coming. I said, `Look out, Claude, there is a train.' I had my eye on the train. He made no attempt to stop and the train hit us."

He further testified that when they got to the point where they turned north on the street to cross the track they were about 20 feet from it; that "I did not tell Mr. Gambling where to go or how to drive that car, nor did I drive it at any time. I did not know where he was going to stop the car. I knew he was going to get some gasoline at Naylor. There was a filling station on each side of the track, but I never asked him which station he was going to get the gasoline at. I did not know he was going to turn to the right and to the north before he did turn. I knew nothing about the route he was going to take to get through the Town of Naylor. I did not notice the train until he made the sharp turn to the north. When I first noticed the train we were about ten or twelve feet from the track. I said, `Lookout, Claude, there is the train.' I don't know that he did anything. I had my eyes bolted on the train. I did not notice any change in the speed of the car. I don't think he made any effort to stop the car. Then the train struck the car. It struck us and began to push the car down the track and I threw up my arm and got it around something and kept hugging it up that way (indicating), I managed to hold on until we got down about half the distance the train pushed us. It kept dragging us on down the track. It dragged us about three hundred and sixty feet. It seemed like the car caught on something about the train. It made a sudden jerk and almost jerked me loose, but I managed to hold on there to keep from going under the car. It got my leg fastened to something. The train came to a stop in about three hundred and sixty feet. We were down about halfway from the crossing to where we stopped, when I was injured. We had been pushed about one hundred eight feet at that time. I did not measure the distance, but it was down the track quite a little bit. I was not injured until we were halfway down from the crossing to where the car stopped. Then the automobile was kinda crushed down. The top came down on me. I was injured. I was injured pretty nearly all over. My right hip was hurt, my back was hurt, and I was hurt through my breast. The first ten days after it happened I could hardly turn over in the bed. This left arm was bruised and injured and my breast was injured and so was this knee. This knee cap is cut and injured and my knee is weak now. My back was injured, across the small of my back, right in the coupling. That is the sandy soil in the street and that is south of the track and runs parallel with it. Mr. Gambling was driving ten or twelve miles an hour; something like that; I don't just know, there was no speedometer on the car. The train when I first saw it was twenty-five or thirty feet east of the crossing, when I first noticed it, and we were about ten feet from the crossing at that time. Mr. Gambling is now dead."

On cross-examination, he testified as follows: "When we turned to go west that put me on the side of the car next to the railroad right of way. The train that was coming in behind was to my right. When we got to the railroad right of way I looked up and down the track for a train, but did not see any train there from that point. Then we turned to go west and traveled nine hundred feet in that direction, something like that, I guess. I did not again look for the train until Claude made the turn for the crossing. I judge it was about twenty feet to the crossing from where the road made the bend to the track. As he made the turn I looked up and down the track. When I first discovered the train I am sure we were in about ten feet of the track and the train was then about twenty-five or thirty feet up the track to the east. If I had turned around in my seat and looked back I possibly could have seen the train at any point between where we first turned west and later turned north. I knew we were going to cross the railroad track somewhere, but I did not expect us to cross it at this crossing. If I had looked up and down the track at any point between where we turned to run parallel with the track and at the point where the car was struck I could have seen east possibly a half mile. I only looked twice. When we first came up from the south to the railroad I looked; then when I saw he was going to cross the track I looked again for the train. I was not paying any attention to the driver."

On redirect examination plaintiff testified that there were other crossings to the west they could have used to make their way to Oxly, and that he had been over the road from Naylor to Oxly but one other...