Jackson v. Southwest Missouri R. Co.

• Decision Date: 11 November 1916
• Docket Number: No. 17974.,17974.
• Citation: 189 S.W. 381
• Parties: JACKSON v. SOUTHWEST MISSOURI R. CO.
• Court: Missouri Supreme Court

189 S.W. 381

JACKSON v. SOUTHWEST MISSOURI R. CO.

No. 17974.

Supreme Court of Missouri. In Banc.

November 11, 1916.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by J. W. Jackson against the Southwest Missouri Railroad Company. Case certified from the Springfield Court of Appeals on request of Farrington, J., who dissented from the judgment of such court (171 Mo. App. 430, 156 S. W. 1005) on appeal, affirming the judgment for plaintiff. Affirmed.

McReynolds & Halliburton, of Carthage, for appellant. R. A. Mooneyhan, of Carthage, and Norman A. Cox and Hugh Dabbs, both of Joplin, for respondent.

BROWN, C.

This case is certified to us from the Springfield Court of Appeals in which a majority opinion was filed affirming the judgment of the trial court for plaintiff in the sum of $7,499. From this decision Farrington, J., dissented, stating in an opinion filed that the decision of the majority was, in his judgment, in conflict with the decisions of this court in numerous cases mentioned, and requesting that the case be certified to us for final determination. The action of the Springfield Court of Appeals is reported in 171 Mo. App. 430, 156 S. W. 1005, where both the majority and minority opinions are set forth in full.

The dissent of Judge Farrington is placed solely upon the ground that at the time of the injury upon which the suit is founded, the plaintiff is conclusively shown by the evidence to have been guilty of negligence which contributed directly to his injury. The able and exhaustive presentation of law and fact which characterizes the dissenting opinion calls for an examination of this question by this court. In all other respects there can be and is no question that the majority opinion of Sturgis, J., presents the case fully and fairly, and we adopt it for this court.

We believe, with Judge Farrington, that the evidence in which we must search for the facts is simple and direct, and it presents a vivid picture of the circumstances which must guide us to our conclusion. It is gratifying to know that the testimony of the two principal and perhaps only real actors in the unfortunate drama, the plaintiff himself and the motorman who was operating the car by which he was injured, is characterized by the evident desire to disclose the real facts so far as they could comprehend and remember them. The motorman was "knocked out" by the strain incident to the occurrence, so that Mr. Havens, a competent motorman who happened to be on the car, ran it in from the place of the accident to Joplin, while the plaintiff recovered consciousness in the hospital about three days afterward. How far these circumstances might have affected the accuracy of their recollection of the events of the few seconds immediately preceding, and which covered the whole ground in controversy, was one of the questions before the jury.

The defendant railway is operating by electric power between the cities of Carthage, Missouri, and Galena, Kansas, through Webb City and Joplin. It was a double-track line running north and south at the place of the accident, the south-bound cars using the west track. The car in question was running south from Webb City, and had not yet left the literal city limits. The railroad ran along the east side of Mt. Hope Cemetery, while the public road, 30 feet wide, along which the plaintiff was going east on a motorcycle, ran along the south side of the cemetery, crossing the railroad tracks at its southeast corner. This was level for some distance west of the tracks and then went up a very easy grade of several hundred feet to what is spoken of in the evidence as the top of the hill. The entrance to the cemetery is at its southeast corner, in a concrete wall having its foundation in ground higher than the railway tracks. This wall was in the neighborhood of 4½ feet high and constituted a segment of 90 degrees of a circle. The west end rested on the north line of the public road something more than 100 feet west of the railroad, and the east end upon the west line of the right of way about the same distance north of the center of the public road. It was concave to the southeast corner of the cemetery lot. Wings extended from its ends north and west approximately 45 feet. Along this wall was shrubbery and vines. The north wing ran west at its north end, ending at the southeast corner of an office building extending 40 odd feet further north and having shrubbery in its front and a grove of persimmon trees north and east of its north end. It was about 200 feet from the middle of the public road to the north end of this office.

The plaintiff testified that during the morning of the day of the accident in October, 1911, he was riding east on the public road we have mentioned, intending to cross the railroad tracks at the cemetery crossing, and to go south on a road passing down the east side of the tracks. When he came to the top of the hill he was going 8 or 9 or 10 miles an hour. As he went down the hill he closed the spark and let the machine coast. When he came out from behind the cemetery wall he was going not to exceed 4 or 4½ miles an hour. He looked north up the railroad track and did not see or hear any car. His attention was drawn more in that direction on account of the brush and wall. He then looked south, where he had a clear view, and, seeing nothing, went on. And that was all he knew — he didn't know what happened. He did not know how far he could see toward the north, but, he said, he did know one thing. He looked just the moment he came out from behind that stone wall, and never had time to look any more. When he came out from behind the wall he was 40 or 50 feet from the track. He also testified that going at the rate of 4 miles an hour he could not stop his motorcycle in 10 feet, because he had tried it, and did not know whether he could stop it in 20. He thought that going 4 miles an hour on level ground would take 35 or maybe 40 feet to stop.

Mr. Stokes, the motorman, testified that he gave a signal for the crossing that day 800 or 900 feet away, and did not use his bell or whistle again until he saw plaintiff; that he was keeping a lookout for the crossing, and when about 200 feet away from it, he saw plaintiff come into view about 50 feet away from the track. At that time he thought plaintiff must have been going 12 or 15 miles an hour. Plaintiff was looking toward the car and he (Stokes) began to whistle, and stopped his car. Plaintiff began to slow down, but could not stop until he got on the track. He ran across the track, his motorcycle stopped on the west rail of the east track, and he slid off behind. Grasping the wheel of his motor with both hands, he pulled himself toward it and got far enough to keep from being struck by the front of the car, and was hit only by the projecting steps. The car stopped about 100 feet past the crossing, which was, according to Mr. Stokes' testimony, a good stop, being 300 feet from where he first saw plaintiff. Mr. Marquis, who was on the train, testified that he was on the rear platform with the conductor, heard the danger signal, and immediately turned his face to the rear and saw plaintiff beside the track and south of the cattle guard 20 or 30 feet. This witness said with reference to the danger signal: "I took it at the time, and I do yet, it was right at the crossing; just the instant the whistle blew I turned and saw the man thrown off there at one side." This witness had not noticed any signal up to that time.

From this testimony we make the following inevitable deductions: (1) The car was running so fast that the motorman was unable to stop it within a less distance than 300 feet. (2) The conditions were such that...