Hoff v. Wabash Ry. Co.

• Decision Date: 31 July 1923
• Docket Number: No. 23569.,23569.
• Parties: HOFF v. WABASH RY. CO.
• Court: Missouri Supreme Court

254 S.W. 874

HOFF v. WABASH RY. CO.

No. 23569.

Supreme Court of Missouri, Division No. 1.

July 31, 1923.

Motion for Rehearing and Motion to Transfer to Court in Banc Overruled August 15, 1923.

Motion for Leave to Refile Motion to Transfer to Court in Banc. Overruled October 5, 1923.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Samuel T. Hoff against the Wabash Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Homer Hall, of St. Louis, and Sebree & Sebree and William Paul Pinkerton, all of Kansas City, for appellant.

Cyrus Crane, of Kansas City, L. T. Dryden, of Independence, and Virgil Yates and Mosman, Rogers & Buzard, all of Kansas City, for respondent.

Statement.

WOODSON, C. J.

The plaintiff brought this suit in the circuit court of Jackson county against the defendant to recover the sum of $41,500 damages for personal injuries sustained and damages done to his automobile, caused by the alleged negligence of the defendant in running its train of cars against the automobile and injuring him and his car. The trial resulted in a verdict and judgment against the defendant for the sum of $36,916, and upon motion for a new trial, at the suggestion of the court, the plaintiff entered a remittitur of $16,916, and the court overruled the motion and rendered judgment for the plaintiff for $20,000.

The injuries complained of were occasioned by reason of a collision between a freight train of the defendant and the plaintiff's automobile in the main public road crossing over the defendant's freight tracks in the town of Lexington Junction. The Wabash main freight line runs east and west on the south edge of the town, while the public road runs north and south through the town and forms the main street thereof. The road is known as the "Lexington Road," as it runs from Lexington Junction to Lexington, Mo., and is much used by the public for travel. At the southwest corner of the intersection between the public road and the railroad crossing is an embankment; that is to say, both the public road and the railroad right of way have been cut through the crest of a small hill, the public road being on the east and the railroad on the north. The embankment is of sufficient height to obstruct the view of the traveler going north on the public road until after he has passed onto the railroad right of way.

Leading from the main line track, and on the south side thereof, and beginning about 450 or 500 feet west of the crossing, is a switch or passing track, which parallels the main line and continues east over the crossing and for about a quarter of a mile, where it again enters the main line. The north rail of the passing track is about 8.8 feet south of the south rail of the main line. The right of way fence, which stands several feet back on top of the embankment, is about 20 or 25 feet from the south rail of the passing track.

There was evidence tending to establish the fact that at the time of the collision there were three or four box cars on the passing track west of the public road and extending up to the road, which together with a heavy growth of weeds and sprouts completely obstructed the view of a traveler to the west as he approached the railroad crossing from the south until he would pass the box cars, and was then in the danger zone of the main tracks. The evidence of the defendant tended to contradict that of the plaintiff upon this point, and to show that there was no obstruction, cars, or weeds to interrupt the view of the plaintiff between the embankment and the south side of the box cars for about 600 feet, had they been there.

The plaintiff, who was a farmer and lumberman, had installed a sawmill south of Lexington Junction and was going in that town to meet a train due there at o'clock p. m. It was "an unfavorable day" and was getting a little "dusk" at the time of the collision which occurred between 5 and 6 p. m. The wind was blowing from the northeast. The train which struck plaintiff was going east and was composed of an engine, 41 loaded freight cars, and a caboose. The plaintiff was driving his Apperson automobile, which was a right-hand drive, and for about a quarter of a mile before arriving at the crossing was traveling at a speed of or 8 miles per hour, "just jogging along." When he arrived at the crossing, he stopped his automobile with the front wheels between the rails of the passing track, and looked and listened for the approach of a train, and neither seeing nor hearing any started to drive across the track and "by the time the car had moved far enough ahead, as the seat is back in the car, by the time it had moved far enough ahead for me to see around the box car the front wheels were on the main line and in the danger line, and when I came around there I saw the engine. It was practically on me and coming at a high rate of speed, but I was already where I would be hit. To stop and reverse my car would have required much more time to get backward than it would to go forward, because the front wheels were already in the main line tracks. I thought the only thing to do was to try and go on over; I: accelerated the speed, and tried to get across." "I stopped—well I stopped to take the usual precaution, to look and listen." He did not hear a sound from the train. There was no warning signal given of the approach of the train. The engine struck the automobile about the center of it, and hurled it 30 or 35 feet, and knocked the south side out of an iron fence which stood around the water tower which was north of the track and east of the point of collision. The automobile was totally wrecked as a result of the impact, and plaintiff was seriously and permanently injured.

The plaintiff was picked up totally unconscious, with blood coming from his ears, nose, and mouth. He was taken into a local hotel, and there remained in an unconscious state for two days, when he was placed upon a train and taken to the East Side Hospital in Kansas City, Mo., where he remained about two weeks.

The plaintiff's evidence tended to show that the agents and employees in charge of the train failed to give any warning of any kind of its approach, and that the train made no perceptible noise of its approach, while that for the defendant tended to show that the whistle was blown and the bell rung as the train approached the crossing. The plaintiff testified that he stopped at the crossing for the very purpose of looking and listening for a train, and, hearing none, proceeded, and was struck almost instantly.

Mr. Sebree to Mr. Hoff:

"Q. But you say as you looked up there along the line of these box cars you do not think you could see any part of the track. that right? A. Mr. Sebree, I believe it would be possible now, but it was not visible at that time. Q. Now, what was it, Mr. Hoff, when you looked up along the side of those box cars, what was it that you could see, if anything? A. You could see three or four bunches of sprouts and tremendous growth of weeds; that was what you could see when you looked up there. Q. At what point? A. All along this embankment, but it is not so to-day, Mr. Sebree. I looked as best I could but I had no view of course. I did finally have a view as I moved forward, but when I had this view I was already in the danger zone. The front wheels of the car were already over the main line track. By the time the car had moved far enough ahead, as the seat is back in the car, by the time it had moved ahead for me to see around the box car, the front wheels were on the main line, and when I came around there I saw the engine."

Alsup testified:

"Q. Now, Mr. Alsup, again we will appropriate Mr. Sebree's diagram, and I will ask you to state whether or not along this right of way there was any underbrush, bushes, or anything of that character. A. Yes, sir; weeds and brush, no big timbers, gentlemen, just brush such as big weeds and sprouts that grow up about like those you know along there. Q. Now, will you tell these gentlemen whether or not they interfered with your view down the track. A. Yes, sir; they interfered, of course."

Mr. Rhodes testified:

Q. Do you know whether or not at that time there were any weeds or brush along the fence along the right of way? A. Yes; it was stowed up pretty bad along the bank it was a cut there like. Q. But you say as you look up there along the line of box cars you didn't think you could see any part of the track, is that right? A. Mr. Sebree, believe it would be possible now, but it was not visible at that time. * * * Some of the sprouts were almost in or probably in the fence row, and the embankment and the part that belonged to the right of way had a heavy growth of weeds."

There were three witnesses who testified for plaintiff that they heard no crossing signal: Aline Payne, James Bradley, and plaintiff.

Testimony as to the value of the automobile:

"Q. What I am getting at is, what was the reasonable market value of that automobile? A. Well, my judgment was it was worth $1,500; I had estimated that paid that for it in this trade; it was a very expensive machine when new, and it was in perfect mechanical condition."

The defendant's evidence tended to show that it was not worth more than $500.

The plaintiff commenced his action against the defendant in the circuit court of Jackson county, Mo., at Independence in November, returnable to the December, 1920, term of said court, F. Heifner, the engineer was named as a codefendant; however, no summons was ever issued for him, and he was never served with process in the case. The appellant filed its answer to plaintiff's petition on December 8, 1920. On December 22, 1920, the court called for a listing of all jury cases then at issue, and plaintiff listed the case for trial as against appellant. The December term expired; the March term 1921, vegan on the second Monday in March, and expired; the June, 1921, term commenced the first Monday...