Hutchinson v. Missouri Pac. Ry. Co.

• Decision Date: 08 July 1926
• Docket Number: No. 15674.,15674.
• Parties: HUTCHINSON v. MISSOURI PAC. RY. CO. et al.
• Court: Missouri Court of Appeals

288 S.W. 91

HUTCHINSON v. MISSOURI PAC. RY. CO. et al.

No. 15674.

Kansas City Court of Appeals. Missouri.

July 8, 1926.

Rehearing Denied July 22, 1926.

Appeal from Circuit Court, Cass County; Ewing Cockrell, Judge.

Action by John M. Hutchinson against the Missouri Pacific Railway Company and others. Judgment for plaintiff against the defendant named, and it appeals. Reversed and remanded.

James F. Green, of St. Louis, C. W. Hight, of Harrisonville, D. C. Chastain, of Butler, and W. M. Bowker, of Nevada, Mo., for appellant.

Swearingen & Finnell and Amos Townsend, all of Kansas City, and W. D. Summers, of Harrisonville, for respondents.

ARNOLD, J.

This is an action in damages for personal injuries. The suit was instituted against the Missouri Pacific Railway Company, Howard Jennings, and Ursula Jennings, on account of injuries alleged to have been sustained by plaintiff in a collision on October 24, 1924, between a motorcar of the railroad company and an automobile driven by Ursula Jennings, one of the defendants.

Upon trial of the cause, the court sustained a peremptory instruction in behalf of defendant Howard Jennings, and a verdict was returned in favor of Ursula Jennings and against the defendant railroad company in the sum of $7,000. After motion for new trial overruled, the railroad company appealed. Plaintiff filed a motion for a new trial as to Howard Jennings, which was overruled, and plaintiff appealed to this court, but afterwards dismissed the appeal. The appeal of the railroad company from the judgment of $7,000 rendered against it therefore is the only one pending here.

The facts of record are that plaintiff was in the employ of defendant railroad company as a section hand, or track laborer, at Pleasant Hill, Cass county, Mo. On October 25, 1925, the company was engaged in laying rails on its main line track about 2½ miles northwest of Pleasant Hill, using two or three crews of section men as track laborers in the work. Plaintiff was employed as one of such men and was working under defendant's foreman, George Smith. It appears that it was the duty of the railroad company to transport said laborers, including plaintiff, to and from the point where the track was being constructed. For the purpose of transporting its laborers, on the day in question, the railroad company was using an ordinary hand car which had been converted into a motorcar by installing thereon a gasoline engine, to which was attached two push cars, the latter being small, flat cars, upon which were loaded tools and supplies, these cars being ordinarily propelled by pushing. Neither the converted hand car nor the push cars were constructed with coupling apparatus, but were fastened together with temporary couplings.

It appears the push cars were fiat top structures mounted on four wheels and that they were about two feet in height. As they are ordinarily propelled by being pushed by the laborers, they are not operated at a speed beyond 2½ to 3 miles per hour, but on this occasion, being attached to the converted hand car, they were being operated at a speed estimated at 10 to 15 miles per hour. The said push cars were not equipped with brakes of any kind, and the testimony shows the men riding thereon were not furnished with sticks which might serve as brakes.

At the usual quitting time, on the day in question, the foreman, Smith, directed the laborers, including plaintiff, to load a lot of tools, including their own, on the push cars and to board the converted hand car and push cars for return to Pleasant Hill. The converted hand car was boarded by as many as could get on, and plaintiff was directed to board one of the push cars, which he did, and to hold from falling therefrom the tools, including a steel jack. About a mile northwest of Pleasant Hill a public highway crosses the right of way and track of defendant railroad. Defendant Ursula Jennings was driving from Pleasant Hill to her home in an automobile owned by her husband, Howard Jennings, and, in crossing the track at said crossing, the converted hand car with the loaded push cars attached struck the automobile at the rear wheel, wrecking the said hand car and push cars, throwing the plaintiff from the car on which he was riding, and sending him forward through the air and onto his head and shoulders. It appears that neither the converted hand car nor either push car was equipped with any bell, gong, horn, or other appliance by which a warning signal could be given.

The evidence shows that Smith, the foreman, saw the automobile approaching the crossing and in close proximity thereto, and that he stood up and waived his hand to the driver of the automobile, but his signal appears not to have been seen by the latter. One Tomas Angel was the driver of the converted hand car, and his testimony is that there were no signals to warn people at crossings, and they are supposed to look out for themselves; that when the foreman waved his hand he "understood that we should slow down; the wheels slid on the motorcar." He stated the foreman directed the movements of the cars. "The weight behind pushed us," he said. The record shows that after the tools and men had been loaded on the cars the foreman, Smith, took his position upon the front of the motorcar, and when within 250 to 300 feet of the crossing, he saw the automobile approaching the track; that when he realized it was not going to stop, he began waving his hand to the driver of the automobile; that Angel, the driver of the hand car, applied his brakes and the speed was slackened somewhat. The automobile had almost cleared the crossing when it was struck.

The country is practically level in the vicinity of the accident, and, for a distance of a quarter to a half mile to the northwest of the crossing, the view is unobstructed, but there is a slight grade in the railroad track to the southeast. The negligence specified in the petition is: (1) Carelessness and negligence in overloading the push cars; (2) negligence and carelessness in attaching said push cars to the railroad motorcar; (3) negligence and carelessness in failing to equip said railroad motorcar with sufficient brakes; (4) negligence and carelessness in not having said cars under control; (5) negligence and carelessness in running the said cars at a high and dangerous rate of speed; (6) negligence and carelessness in failing to keep a proper lookout for vehicles at said public crossing.

The injuries alleged are that plaintiff's head, body, and limbs were cut and contused, and his nervous system shocked, that he was injured internally, his nose bruised and lacerated, his head bruised and lacerated, and that he suffered a concussion of the brain, etc.

The amended answer of the railroad company admits its corporate existence and denies generally all other allegations of the petition. And, for further answer, it is averred that the alleged accident and injury, if any, was due solely to the carelessness and negligence of Ursula Jennings and the occupants of the automobile in not exercising proper care in approaching the railroad crossing, that the automobile was being driven at an excessive rate of speed as the said crossing was approached, and that the said driver was negligent in not keeping a proper lookout and in not having her automobile under proper control.

The defendants Howard Jennings and Ursula Jennings filed answer to plaintiff's petition in the form of a general denial. Ursula Jennings also filed a separate reply to the answer of her codefendant, the Missouri Pacific Railway Company, specifically denying that the alleged accident and resulting injury were, in any manner, due to any carelessness and negligence on her part, or on the part of the occupants of the automobile; that she was not driving the said automobile at an excessive rate of speed, and avers that she had her car under perfect control; that she was, at all times, driving very slowly, keeping a close watch and lookout to see that the railroad track was clear.

Further, said reply of Ursula Jennings states that' soon after the accident, the agents, servants, and employees of defendant " called to see her and, within about one week after the accident, induced her to accept the sum of $300 for damages to her automobile and the sum of $200 for injuries sustained by her; that said railroad company also paid to Lucy Jennings the sum of $300, to Etta Jennings, $200, and to Maxine Jennings, $50, for personal injuries sustained by each of them in said accident; that all of these payments were made voluntarily by the defendant railroad company in full satisfaction for damages sustained, and that by so doing the defendant railroad company admitted its liability in the premises.

The defendant railroad company has filed a motion to transfer the cause to the Supreme Court and, as grounds therefor, urges that the amount in controversy in the appeal of the plaintiff as to defendant Jennings is $50,000, the amount demanded in the petition, and the jurisdiction is in the Supreme Court. It is true the prayer of the petition asks judgment against all the defendants in the sum of $50,000, and that plaintiff has appealed from the action of the court in giving a peremptory instruction for Howard Jennings, and from the verdict of the jury in favor of Ursula Jennings. But the appeal in this behalf was dismissed by plaintiff in this court on April 5, 1926. We do not understand that defendant railroad company is contending that plaintiff was not within his rights in dismissing the said appeal. This being true, the only appeal now pending in this court is that of the defendant railroad company from the verdict and judgment of $7,000, and it is within our jurisdiction.

It is urged in support of the motion to transfer that, where the amount in controversy as to one of the parties places the jurisdiction in the Supreme Court, the whole case must go there, citing Holker v, Hennessey, 141 Mo. 527, 42 S....