Johnson v. Atchison, T. & S. Ry. Co.

Decision Date03 January 1927
Docket NumberNo. 15779.,15779.
Citation290 S.W. 462
CourtMissouri Court of Appeals
PartiesJOHNSON v. ATCHISON, T. & S. RY. CO.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by William B. Johnson against the Atchison, Topeka & Santa Féd Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Cyrus Crane and Geo. J. Mersereau, both of Kansas City, and Culver, Phillip & Voorhees, of St. Joseph, for appellant.

Randolph & Randolph, of St. Joseph, for respondent.

ARNOLD, S.

This is an action in damages for personal injury, alleged to have been received by plaintiff on June 26, 1924, as the result of a collision between an automobile which he was driving and a motorized hand car operated by the defendant's servants and employees at a railroad crossing about one mile from the city of Ottawa, Kan.

The record discloses that defendant's tracks run north and south at the point of collision. About one mile from the center of the city of Ottawa and outside the limits of that city, defendant's track is crossed at right angles by a public highway about 16 feet in width and paved with brick covered with tar or other substance, and is practically level. About 300 feet east of the intersection of said and on the south side thereof is a filling station. At about 8 o'clock in the morning of the accident plaintiff, driving a Dodge roadster, stopped at the filling station to buy gasoline and oil and to place chains on his car. Rain had fallen the night before. At the filling station one J. F. Riggs, a student at `he Ottawa University, got into the automobile with plaintiff and was with him at the time of the accident.

Riggs testified that plaintiff drove west on north side of the highway from the filling at the rate of 15 to 18 miles per hour; that he did not slow down in approaching the crossing, and as they neared the track the witness saw a motorized hand car approaching from the north at a speed of about 20 miles per hour, and that he had time just to see it "out of the corner of my eye" when he said to plaintiff, "There comes something," and plaintiff put on his brakes; that at this time they were about 30 feet from the track and the automobile skidded the remainder of the distance onto the track and there collided with the hand car.

It appears that, by force of the impact, the hand car was derailed and thrown at least partly from the track to the west side thereof; that the automobile was headed south after the collision and was damaged. On cross-examination, this witness testified that from the filling station west to the railroad right of way fence there was a hedge fence about 2½ feet high, and that at intervals of about 10 to 15 feet in said fence the hedge trees were trimmed, but not cut, to the average height of the fence; that these trees did not obstruct the view, but did hinder it; and that a person approaching the track would be required to look more closely than would he necessary if the hedge were not there. The hedge fence stopped about 50 feet from the track.

It is in evidence that as the railroad approaches from the north it runs through a cut 4½ to 5 feet in depth from the top of the embankment to the bottom of the ditch, and that the track is built upon about 18 inches of ballast; that in approaching the track the north front wheel of plaintiff's car was from 2 to 4 feet from the north edge of the paved highway, and that the collision occurred while it was approximately in that position. Plaintiff and Riggs were sitting in the automobile after the collision; one man jumped off the hand car and another was thrown off by the impact. It also appears that the two front wheels of the automobile were not completely demolished, but the hubs thereof were jammed through each wheel.

Plaintiff testified that when he was about 150 feet from the crossing, he applied his brakes to test them and slowed down to 3 or 4 miles per hour; finding his brakes in order, he increased his speed, but when he had reached the right of way fence, which is 50 feet east of the track, he was going at approximately 3 to 5 miles per hour, when he again applied the brakes; that this application of the brakes was sudden and his car skidded about 7 feet and into the collision. He testified, further, that when he reached the right of way fence, there was no longer the obstruction of the hedge, and he could see the track almost to the cattle guard about 10 feet north of the pavement; that when he got within 30 feet of the track he could see further. This situation is best explained in plaintiff's testimony, on cross-examination, as follows:

"Q. The moment you got to the place where you could look north and see whether there was a clear track, you looked? A. Yes, sir.

"Q. And the moment you looked you saw this hand car coming? A. Yes, sir.

"Q. And the moment you saw the hand car coming you tried your best to stop? A. Yes, sir.

"Q. But the rate of speed at which you were going and the momentum of your car when you first saw the hand car was so great that you could not stop it before the collision—isn't that right? A. I tried my best to stop.

"Q. If you could stop it, why didn't you? A. I would if I could.

"Q. You couldn't stop? A. I guess not."

Plaintiff testified he did not know how quickly a Dodge roadster could be stopped under conditions present at the collision, but that when Riggs said "There's a hand car," the hand car was on him before he had a chance to do anything; that he applied his brakes suddenly and was struck; that before the collision he saw the hand car just a fraction of a second, and it was going at a speed of 20 to 30 miles per hour.

Testifying for defendant, a mechanic employed in a Dodge agency stated that a Dodge roadster, with brakes in good order, chains on, on a brick roadway practically level and damp from rain which had fallen from one to three hours before, could be stopped within about 35 feet, when traveling at 18 to 20 miles per hour.

J. H. Gidney, defendant's roadmaster, testified he saw the marks on the pavement soon after the accident and before the colliding cars had been moved; that he saw marks where plaintiff's car had skidded, and they were from 30 to 40 feet long.

Defendant's motorized hand car was being operated by one King, foreman, who was not in the set vice of the defendant at the time of the trial and did not testify. Charles Dearing, a section hand in the employ of defendant, was on the west side of the hand car and Gus Long, another section hand, was on the east side thereof. Dearing testified the hand car was going at a rate of 10 to 12 miles per hour when it was about three rail lengths from the crossing, and that its speed was being reduced but he had his back toward plaintiff's automobile and did not know why the hand car was slackening speed; that when the hand car was almost stopped, he turned his head to see what King was going to do, and that instant the collision occurred —the automobile hitting the hand car and knocking witness to the pavement where he was struck by the hand car and two of his ribs broken; that after the collision, the front end of the hand car was not over 3 feet from the north edge of the pavement, and the right front wheel was to the northwest about 4 feet from the west rail, and the automobile was on the east side of the track.

Gus Long testified he saw the automobile as it was leaving the filling station, and it was traveling toward the track at about 25 miles per hour; that when it got within 36 to 38 feet of the track, plaintiff put on his brakes; that King had shut off the power of the hand car about "a telephone pole" away from the north edge of the pavement; that King continued to keep the brakes on, and, as the hand car reached the pavement, he put them on "real tight," and the hand car stopped 3 feet south of the north edge of the pavement, but that the automobile continued to approach along the north side of the pavement about 2 to 3 feet south of the north edge thereof; that it was coming straight at witness, and, when it got within 2 or 3 feet of him, he "kind of rolled and walked" off the hand car; that the hand car had then stopped; that he had expected the automobile to pass around the hand car to the south on the pavement. There is evidence that the front end of the automobile struck the hand car just over the left front wheel and running board. Long further testified that he measured the marks on the pavement made by the skidding automobile and that they were 36 feet in length.

On crass-examination, this witness stated he could see the automobile at the time and after it left the filling station as it passed along between the open spaces in the hedge; that he could see it plainly and without obstruction after it reached the right of way fence; that when plaintiff's wheels began to skid the hand car had not stopped, but when plaintiff was about half the distance from where the wheels began to slide to the crossing, the hand car was at a dead stop.

At the close of all the evidence, defendant asked and the court refused to give an instruction in the nature of a demurrer.

The petition alleges three acts of negligence on the part of defendant (1) operating the hand car at a high and excessive rate of speed; (2) failure to sound a whistle, horn, or other signal of the approach of the hand car; and (3) failure to stop the hand car after defendant's servants in charge of it saw, or by the exercise of ordinary care could have seen, plaintiff approaching the crossing and in a position of imminent peril, in time to have avoided the collision. However, plaintiff abandoned the first and second charges, and went to trial solely on the third charge of negligence, commonly known in Kansas as the last chance doctrine.

Defendant's answer is a general denial and, further answering, pleads the laws of Kansas as found in numerous decisions of the...

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