King v. Missouri Pac. R. Co.
Decision Date | 13 May 1924 |
Docket Number | No. 23622.,23622. |
Citation | 263 S.W. 828 |
Parties | KING v. MISSOURI PAC. R. CO. |
Court | Missouri Supreme Court |
Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.
Action by C. E. King against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
James F. Green, of St. Louis, and A. B. Spencer, of Joplin, for appellant.
Hugh Dobbs, Norman A. Cox, and Walden & Andrews, all of Joplin, for respondent.
The respondent brought suit in the circuit court of Jasper county for the recovery of damages against the appellant for injuries received by him and to his automobile in a collision with one of appellant's trains at a public crossing in the city of Joplin. Upon a trial to a jury there was a verdict for the respondent in the sum of $10,-000. From the judgment thereon the appellant seeks a review in this court.
The petition discloses the following allegations of negligence: Violation of a city ordinance limiting the speed of railway trains within the corporate limit to 15 miles per hour; failure to give the required signals or warnings when approaching and while passing over a public crossing; a lack of ordinary care by the employees of the appellant in keeping a lookout when approaching such a crossing.
The answer was a general denial and a plea of contributory negligence, in that the respondent did not look and listen for the approach of a train, and that he exceeded the speed of 10 miles per hour in approaching the crossing, in violation of a city ordinance thus limiting his speed at such a place.
At the close of all the testimony the court refused to give an instruction asked by the appellant in the nature of a demurrer to the evidence; but gave instead two others; one of which was that a recovery could not, under the evidence, be had for a failure of the appellant to give the required signals or warnings when approaching a crossing; and the other that a recovery under the evidence could not be had on the ground that the appellant carelessly and negligently operated the train at a speed of more than 15 miles per hour when approaching the crossing.
Seventh street, in the city of Joplin, runs east and west. At about 11:30 a. m., in March, 1921, the respondent and his wife were in an automobile approaching the railroad crossing at a speed of 12 or 15 miles per hour. When about 300 or 400 feet from the crossing, respondent, whose view of the railroad track was unobstructed' at a portion of same about 700 feet distant, neither saw nor heard the approaching train. As he neared the crossing his view was interrupted by the approach from the rear of another automobile, the horn of which was sounded as a signal that the driver desired to pass. Respondent thereupon pulled his car towards the side of the road. The driver of the other car, however, did not pass, but drew up alongside the respondent's car, and they proceeded side by side for about 150 feet. While they were thus moving, appellant's track was hidden from the view of the respondent. When the automobiles were about 25 or 30 feet from the railroad track the driver of the other car increased its speed, and the respondent lessened that of his car to about 8 miles an hour. His testimony in that regard is as follows:
Asked on cross-examination if, when he was within 20 or 25 feet of the railroad track, he could not have stopped his car within half that distance, he answered:
While the tracks and the street are at the same grade at the crossing, the track is on a down grade from the direction in which the train was approaching to the crossing for about 750 feet—the tracks at the crossing being about 9 feet lower than the tracks 700 feet south or the direction from which the train was coming; the difference in grade being evident from the testimony of the engineer, who states:
When the automobiles were within 20 or 25 feet of the crossing, the Ford car forged ahead and, passed over the tracks before the train reached the crossing. While the respondent appears to have slackened the speed of his car, he did not stop it, but, following closely upon the Ford, reached the crossing at about the same time as the locomotive which, as testified to by the engineer, struck the automobile and inflicted the injuries here sought to be recovered.
After making the attempt to sound the whistle, the engineer and fireman state that the airbreaks were put on at the trestle, and with them on they ran down to the crossing, a distance of 150 feet, striking the respondent's automobile and carrying it about 35 or 40 feet, but not stopping until the caboose at the rear end of the train was 300 feet from the crossing.
The testimony of the engineer who was running the engine at the time of the accident fairly presents the facts from the appellant's standpoint. It is as follows:
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Section 4.82 Current Existence of Continuous Condition
...of a continuous nature and has been shown to exist at one point in time, does continue to exist at a later time. King v. Mo. Pac. R. Co., 263 S.W. 828 (Mo. banc 1924); Duckworth v. United States Fid. & Guar. Co., 452 S.W.2d 280 (Mo. App. E.D. 1970). The reverse is not true. Generally, proof......