Kansas City, C. & S. Ry. Co. v. Shoemaker

• Decision Date: 19 December 1917
• Docket Number: 4922.
• Citation: 249 F. 458
• Parties: KANSAS CITY, C. & S. RY. CO. v. SHOEMAKER.
• Court: U.S. Court of Appeals — Eighth Circuit

249 F. 458

KANSAS CITY, C. & S. RY. CO. v. SHOEMAKER.

No. 4922.

United States Court of Appeals, Eighth Circuit.

December 19, 1917

John H Lucas and William C. Lucas, both of Kansas City, Mo., for plaintiff in error.

J. C Hargus, O. H. Dean, W. D. McLeod, and H. M. Langworthy, all of Kansas City, Mo., for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and BOOTH, District Judge.

SANBORN Circuit Judge, and BOOTH, District Judge.

A consideration of the argument presented and the authorities cited by counsel for the plaintiff below on this motion for a rehearing has failed to convince that the instruction refused by the trial court and considered in the opinion of this court was either erroneous or clearly given to the jury in the general charge of the court below.

Nor has the elaborate argument to the effect that there was substantial evidence of the negligence of John Green, the section man who was operating the motorcar, persuaded us that the court below rightly refused the request of the defendant below for a direction to the jury to return a verdict in its favor. The plaintiff was a fellow servant of John Green in the section gang of the railway company. They were returning from work on the south end of their section on a motorcar which Green was driving along the railroad. At a crossing of the railroad by a highway there was a collision of an automobile, which one of its occupants was driving along the highway with the motorcar and a resulting injury to the plaintiff. The highway ran east and west and the automobile came from the west. The railroad ran from southeast to northwest and the motorcar came from the southeast. Green sat on the northeast corner of the motorcar, on the side of it opposite that from which the automobile came, and did not look for or see the automobile until the collision. Two of the section men who were riding on the west side of the motorcar saw the automobile approaching, but one of them testified that he said nothing because he supposed it would stop. The railroad at the crossing was on a fill or embankment 10 or 12 feet above the surrounding country, and within 150 feet of the crossing, the highway rose by an ascending grade to the level of the railroad.

The driver of the motorcar had the right of way over the crossing. The railroad itself was a warning of danger to the driver of the automobile, and it was his primary duty to use his eyes and ears to look and listen for engines, cars motorcars, and other vehicles operating upon the railroad and to stop his car before it could collide with...