Holland v. Missouri Pacific Railroad Company
| Decision Date | 06 January 1923 |
| Docket Number | 24,158 |
| Parties | GERTRUDE HOLLAND, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1923.
Appeal from Bourbon district court; EDWARD C. GATES, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. RAILROAD CROSSING--Collision Between Automobile and Switch Engine--Contributory Negligence Question for Jury. Plaintiff was injured in a collision which occurred between a Ford car in which she was riding and a switch engine of defendant at a railway crossing in the nighttime. The Ford was traveling at the rate of 5 or 6 miles per hour; the switch engine at a rate between 4 and 5 miles. The Ford was picked up on the pilot of the switch engine, with its occupants, and carried 300 feet. Plaintiff and the driver of the automobile testified that there was no headlight on the switch engine and that no signal was sounded for the crossing. The engineer, fireman and conductor who were in the cab of the switch engine testified to the contrary. The jury found that there was no headlight and that no signal was given; that both plaintiff and her escort looked and listened for an approaching train; that a street light was not burning brightly enough to enable them to discover the switch engine that the noise of their own car and the high wind interfered with their hearing the switch engine, and that if plaintiff had stopped before crossing the tracks, by reason of the darkness the noise of the automobile and the high wind, she could not have seen nor heard the approaching engine. Held, in view of all the circumstances, the case was one for the jury to determine whether plaintiff exercised the care for her safety that a reasonably prudent person would have exercised under the same conditions. (McClain v. Railway Co., 89 Kan. 24, 130 P. 646.)
2. SAME--Hearsay Evidence--When Competent. Shortly after the collision the train conductor went to the home of one McIntosh who lived near by and got him to go for a physician. McIntosh's deposition was taken by the defendant. On cross-examination he was asked what was said by the trainmen with reference to the headlight. He answered that the trainman who came to his house said: "We had a damn poor headlight; we had been having trouble with this light ever since we left Nevada." At the trial the conductor was a witness for defendant and on cross-examination he denied making the statement testified to by McIntosh. The defendant then offered the deposition but objected to the question with reference to what the trainmen said after the accident, on the ground that it was no part of the res gestoe and was hearsay. Held, that the question became relevant and competent in the course of the trial for the purpose of impeaching the testimony of the conductor.
W. P. Waggener, James M. Challis, O. P. May, all of Atchison, and W. F. Jackson, of Fort Scott, for the appellant.
B. Hudson, Douglas Hudson, James G. Sheppard, and Charles F. Newman, all of Fort Scott, for the appellee.
OPINION
Gertrude Holland brought suit to recover for injuries resulting from a collision between a Ford car in which she was riding and a switch engine of appellant. The trial resulted in a verdict in her favor for $ 4,000. The railroad company appeals.
The accident happened in the town of Liberal, Barton county, Missouri, on December 28, 1920, at about 8:30 o'clock in the evening. Defendant's railroad runs north and south through the town. A highway, which is the main street of the town, runs east and west, and crosses the railway tracks 60 or 80 feet north of the depot which is on the east side of the tracks. The Ford car was driven by Thomas E. Bell, a young man about the age of the plaintiff. The car in which they were riding belonged to the young man's father. The young people had taken rides in the car as often as once every two weeks for a year, and during that time they had been keeping company. On the evening in question they were returning from a picture show, and were driving west. From a point 200 feet east of the crossing there was an unobstructed view of the track for a mile. There was a street light which hung over the center of the street about 60 or 70 feet east of the crossing, and this light illuminated the north end of the depot 60 or 80 feet to the south.
Plaintiff's testimony showed that just before the Ford reached the crossing it was moving at from five to six miles per hour; that a light freight engine was approaching from the north with no cars or caboose attached and moving at a speed of between four and five miles per hour. The Ford car was not turned over but was picked up on the pilot and with its occupants carried 300 feet south of the crossing. The rear right wheel of the Ford car was broken. The plaintiff and her escort testified that they were keeping a lookout for trains when they approached the crossing, saw no headlight, and would have seen it had there been one. They heard no whistle sounded or signal given, and both testified that there was no headlight on the engine. When the engine was stopped a man in the engine got out and removed the occupants of the car, and with some assistance plaintiff walked back to the depot, and from there, with assistance, she walked to the home of A. B. McIntosh, about 300 yards, where a physician was called.
The cab of the engine was occupied by the engineer, who was on the right-hand side of the engine, the fireman and conductor Roup. They all testified that the headlight of the engine was burning and that the usual signal was given for the crossing, and that they were running very slowly. They also testified that on each side of the engine there was a marker consisting of a red light surrounded by a wire screen. Bell testified that he looked first at a point 200 feet east of the crossing; again about 20 feet from the track; looked in both directions; looked to the north last. Within 12 or 15 feet from the crossing he looked for the last time; that the first time he knew of a train being anywhere around "it had hit the car and was shoving us down the track." The jury made the following findings of fact:
5. If you answer the last question 'Yes,' then state why you did not stop? Answer: Did not see or hear train.
The defendant's motion to set aside findings Nos. 8 and 9 as contrary to the evidence was overruled; also a motion for judgment in favor of defendant and a motion for a new trial were overruled.
At the time of the trial, a little more than a year after the accident, plaintiff appeared to be without any bruises or scratches. The physician who was called to the McIntosh home after the accident testified that the plaintiff had a slight abrasion over the right eye, which was puffed and swollen, and a bruise on her shin the size of one's hand; she complained of severe pains in her abdomen; he saw her the next day when she complained of the same pains. He testified that at the time of the trial there were no discolorations on her body.
Her mother testified, in substance, that prior to the accident the plaintiff was in good health; was attending business college at Pittsburg; that when she returned home after the accident there was a bruise above the eye; her hip and shin were injured. Plaintiff became very sick at her stomach and was placed in bed, where she remained for two weeks; for three or four months she wasn't able to be up all day. After the injury she kept complaining, and continued up to the time of the trial.
A physician who had examined her shortly before the trial testified to a small scar on her hip, on her knee and over her eye. He made an X-ray examination, which did not show anything. He thought the injuries she sustained might be more or less permanent.
One of the main contentions is, that conceding the truth of the plaintiff's evidence to the effect that there was no headlight on this engine and no signal given, nevertheless her own evidence established that she was guilty of contributory...
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