Johnson v. Missouri Pac. R. Co.

• Decision Date: 21 May 1934
• Docket Number: No. 18077.,18077.
• Parties: JOHNSON v. MISSOURI PAC. R. CO. et al.
• Court: Missouri Court of Appeals

72 S.W.2d 889

JOHNSON v. MISSOURI PAC. R. CO. et al.

No. 18077.

Kansas City Court of Appeals. Missouri.

May 21, 1934.

Rehearing Denied June 11, 1934.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be published in State Reports."

Action by Ed Johnson, administrator of the estate of Fred Johnson, deceased, against the Missouri Pacific Railroad Company and others. From a judgment in favor of plaintiff, defendants appeal.

Reversed and remanded.

Thomas J. Cole, of St. Louis, and Ragland, Otto & Potter, of Jefferson City, for appellants.

F. M. Ross, Henry C. Salveter, and Jones & Wesner, all of Sedalia, for respondent.

CAMPBELL, Commissioner.

This is an action to recover damages for the death of Fred Johnson. Plaintiff obtained a judgment in the sum of $4,500, from which the defendants have appealed.

Plaintiff's intestate, on the night of April 11, 1933, was killed in a collision between a truck which he drove south along Engineer street and defendants' passenger train which traveled west on its main track in the city of Sedalia, Mo. The charge of negligence upon which the cause was submitted to the jury was that the defendants failed to sound the whistle or ring the bell as the train approached the crossing.

The defendants contend that the court erred in refusing to direct verdict in their favor for the reason that decedent was guilty of contributory negligence as a matter of law.

In ruling the question it is necessary to consider and give effect to all of the evidence introduced by the plaintiff, and the defendants' evidence must be disregarded unless it tends to aid the plaintiff's case.

The evidence tending to show that no warning signals were given will not be stated for the reason that the defendants concede that plaintiff introduced evidence "tending to show that no warning by whistle or bell was given by defendants' train as it approached the crossing in question." Therefore, the case was one for the jury unless the evidence introduced by plaintiff shows that the decedent was guilty of contributory negligence as a matter of law.

Mr. Marlin, a police officer, testified that he went to the scene of the accident; found the body of the decedent "a little bit" west of the crossing and about two feet north of the north rail of the track; that he found a part of one of decedent's hands in the center of the track about 30 feet west of the body.

Mr. Phillips testified as follows:

"Q. Where were you? A. I was at town, going home.

"Q. Just tell the jury what happened when you got there and what you saw? A. I and some more fellows was going across the track by Howard, we seen the truck and car, the truck went around the car and the truck went on, is all I seen.

"Q. Well, what happened? A. Well, it run into—

"Q. (Interrupting) Did the train hit it? A. No.

"Q. The car? A. No.

"Q. Well, what happened? A. I didn't see what happened. I just heard the crash and went back down there.

"Q. Now where were you at the time you heard the crash, that is, what part of the street or whereabouts, north, south or where? A. I was on the west side of the street.

"Q. On the west side of Engineer Street? A. Yes, sir.

"Q. Were you on the north or south side of the railroad? A. On the north. * * *

"Q. Tell the jury about how fast this train was running? A. Between forty-five and fifty, I judge.

"Q. Forty-five and fifty what? A. Miles an hour. * * *

"Q. And what did you say about it going around a car? A. It just went around a car.

"Q. Going the same way the car was? A. Yes, sir.

"Q. A car was going south? A. Yes, sir.

"Q. And this truck came up and ran around the car and went on? A. Yes, sir.

"Q. How fast was the truck going? A. About fifteen miles an hour.

"Q. How fast was the car going that it went around? A. Well, going mighty slow. * * *

"Q. Now, did you see the train, before the collision, I mean? A. No, sir.

"Q. You were walking north when you heard the crash, were you? A. Yes, sir.

"Q. But you didn't immediately look back? A. No, sir.

"Q. So you didn't see the train at all before it had crossed Engineer Street? A. No, sir."

Joe Gehlken testified:

"Q. Now, were you near or about the street crossing there at the time the accident occurred? A. Yes, sir. I was coming across the crossing. * * * I was a short distance on the other side of the main line. * * *

"Q. And you had already crossed the track? A. Yes, sir.

"Q. Mr. Gehlken, did you see this train approaching? A. Yes, sir.

"Q. Where were you when you saw it? A. I was just crossing in front of him, looked down the track and seen it coming. * * *

"Q. Now then, Mr. Gehlken, tell the jury whether or not there were any cars, railroad cars there. A. Yes, there was cars lined up on both sides of the track. * * *

"Q. Well, on the east side were there cars on the east side of the traveled way of Engineer Street? A. Yes, sir.

"Q. And tell the jury the best you remember of, where these cars were parked, the railroad cars. A. Right this side of the main line, the north side of the main line.

"Q. And on the east side, do you recall how many lines of cars there were? A. No, sir; I don't remember.

"Q. Was there one or more than one? A. There was one, I know.

"Q. Do you recall whether or not they were on the track immediately north of the main line, or whether there might have been a vacant track or so? A. I don't remember that. * * *

"Q. After you got across the tracks on the north side, could you then see the train? A. No, sir.

"Q. As it approached, I mean? A. No, sir.

"Q. What prevented you from seeing it? A. The cars lined up there.

"Q. Now, Mr. Gehlken, did you see the train as it passed across the crossing? A. Seen it go by.

"Q. And have you ridden on railroad trains? A. Yes, sir.

"Q. And have you ridden in automobiles? A. Yes, sir.

"Q. Can you judge from the travel of an automobile or a train about how fast it's going? A. I can get pretty close to it, I believe.

"Q. Tell the jury how fast this train crossed this crossing, in your judgment? A. Well, it was running anyhow thirty or forty miles an hour.

"Q. Now, Mr. Gehlken, after you crossed this crossing and were on the north side of this crossing, tell the jury whether or not you could see any beam of the headlight of this approaching train? A. I couldn't see it.

"Q. Why couldn't you see it? A. Well, the only reason why, there is a light across the other side of the main line.

"Q. And where is that light located? A. Well, as close as I can remember, south of the main line and on the east side of the road.

"Q. South of the main line and on the east side of the road? A. Yes, sir. * * *

"Q. Did you see this truck approaching the railroad crossing? A. Yes, sir.

"Q. About how fast would you say this truck was traveling? A. Oh, it was running about ten or fifteen miles an hour.

"Q. How close to the east line of the traveled way or walk way of the Engineer Street crossing was these lines of railroad cars? A. Just right at the walk.

"Q. What kind of cars were they? A. Box cars. * * *

"Q. Now, did you see the truck go around this car? A. Yes, sir.

"Q. Were the other boys with you at the time the truck went around the car? A. Yes, sir.

"Q. Now, how far were you from the railroad when the train went by—I mean from the track the train was on? A. Just a little short distance.

"Q. Where was the truck then? A. Just going past.

"Q. Passing you? A. No, the truck had gone by us.

"Q. But you hadn't heard the crash yet? A. No, sir. Not when it went by us.

"Q. And the truck had already passed you before you heard the crash? A. Yes, sir.

"Q. Now, how far had the train crossed the crossing when you heard the crash? A. I do not remember how far it was.

"Q. The train, though, was across the crossing and the truck ran into it, didn't it?

A. I don't know whether it did or not, whether the train hit the truck or the truck hit the train.

"Q. Did you go back where it occurred? A. Yes, sir.

"Q. Did you see where the truck ran into the side of the baggage car? A. I don't know whether it run into the baggage car or not.

"Q. Well, a car, not an engine, but a car? A. I don't know where the truck hit the train.

"Q. You say you were right close to the track as the train went by? A. Yes, sir.

"Q. The collision hadn't occurred then, had it? A. When the train went by?

"Q. Yes. A. It went by so fast I didn't know when it hit.

"Q. Did you hear the crash when the truck hit the train? A. Yes, sir.

"Q. The train had already crossed the crossing before you heard that crash? A. I don't know, the train run out so fast I didn't know what happened.

"Q. Going so fast you couldn't tell? A. Yes, sir.

"Q. And you say going thirty or forty miles an hour? A. Yes, sir. * * *

"Q. And you do not know just where the truck ran into the train? A. No, sir.

"Q. On what track north of the main line on which this train was running were these freight cars? A. I don't know just exactly.

"Q. It might have been on the third or fourth track north, might it not? A. I don't know. How many tracks along there?

"Q. You know there are several, you walked clear across over to Howard Street, didn't you? A. Yes, sir.

"Q. On what track north of the main line were these cars standing, according to your recollection? A. I couldn't say.

"Q. They might have been on the third or fourth track from the main line? A. Well, they could have been, I guess.

"Q. But you didn't see the light of the engine, because there was a light up here above? A. Yes, sir.

"Q. Was this light right above the Missouri Pacific track on which the train was running? A. No, it's not quite over it.

"Q. Which side of it, north or south? A. Which side of the main line?

"Q. Yes. A. On the south side.

"Q. How far from the main line? A. I couldn't say.

"Q. How far were you from the main line when the train went by, we will say from here to this wall, were you that far or farther? A. I was that far, I guess.

"Q. That might be...