Jones (Cooper) v. Thompson
| Citation | 207 S.W.2d 517 |
| Decision Date | 01 December 1947 |
| Docket Number | 20936 |
| Parties | JONES (COOPER) v. THOMPSON |
| Court | Kansas Court of Appeals |
'Not to be published in State Reports.'
Thomas J. Cole, of St. Louis, D. C. Chastain, of Kansas City, and H E. Sheppard, of Butler, for appellant.
Crouch Crouch & Kimberlin, of Harrisonville, and Robert E. Coleberd of Kansas City (Tucker, Murphy & Wilson, of Kansas City, of counsel), for respondent.
SPERRY; PER CURIAM
Betty Jones sued Guy A. Thompson, Trustee for Missouri Pacific Railroad, defendant, for damages resulting from personal injuries sustained by plaintiff when an automobile in which she was riding as a guest, crashed into the side of a stationary train at a crossing. Trial to a jury resulted in a judgment for plaintiff. Defendant appeals.
Defendant contends that plaintiff failed to make a submissible case. Therefore we will state the facts in evidence most favorable to plaintiff's theory of her right to recover. Barker v. Silverforb, Mo.App., 201 S.W.2d 408, loc. cit. 415.
On October 24, 1942, plaintiff, a young unmarried lady, was living at the home of her father, on a farm about one mile south of Lee's Summitt, in Jackson County. Plaintiff was keeping company with Clifford Cooper whom she later married. At about 7:30 p. m., she and her sister, Eleanor, left their home in company with Cooper, who was driving a Plymouth two door sedan. All rode in the front seat, plaintiff being seated beside Cooper. It was very dark and the lights of the automobile were fully on. They drove east on Bowler Road, a much traveled oil road, a distance of about 3/4 of a mile, to the point where the road is crossed by a line of railroad then being used by defendant. One witness said that to the west of the crossing there was quite a hill. From a point several hundred feet west of the crossing the road sloped downwards to a point about 12 feet west of the crossing, then it sloped upwards to the crossing itself. From that point the road continued in an upward slope; so that the railroad was in a valley. The crossing was about 2 feet higher than was the level of Bowler Road some 12 feet to the west.
Plaintiff stated that she remembered nothing about the accident, except that she had a date with Cooper on that night.
Cooper testified to the effect that he drove at a speed of about 30 or 35 miles per hour after leaving the Jones home; that the lights were on; that he knew the crossing was there, having been over it 3 or 4 times; that he stopped the car about 30 feet west of the crossing; that he saw no train or car; that he heard nothing; that the lights from the car shone on the rails of the crossing and on the roadway beyond the crossing; that the lights did not reflect on a box car or on any other object on the crossing; that he shifted gears and proceeded; that he did not know what speed had been attained at the time the collision occurred; that he did not see any box car; and that the first that he knew of any obstruction was a 'big crash.'
Eleanor testified to substantially the same facts, except that she was not sure whether the automobile came to a complete stop, some 30 feet west of the crossing, but that she knew that it was slowed and that the gears were shifted. She stated that the car lights shone on the roadway and on the crossing, and on the roadway beyond the crossing.
Mrs. Saylor, who lived a short distance east of the crossing, stated that she heard the train pull in and stop at 7:10 p. m.; that she heard the crash of the collision some 30 minutes later; that shortly thereafter Eleanor appeared at the Saylor home and asked witness to call her father; that the witness afterward went to the crossing and found it completely blocked by a box car, the wheels thereof being on either side of the road; that she stooped down, peered under the car, and talked to those who were at the scene of the collision on the other side of the crossing; that a milk truck had been driven up on the west side of the crossing and its lights were shining under the box car.
Mr Williams, who owned a farm and had fed cattle in this vicinity for many...
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