King v. Missouri Pac. R. Co

• Decision Date: 13 May 1924
• Docket Number: 23622
• Citation: 263 S.W. 828
• Parties: KING v. MISSOURI PAC. R. CO
• Court: Missouri Supreme Court

263 S.W. 828

KING v. MISSOURI PAC. R. CO

No. 23622

Supreme Court of Missouri

May 13, 1924

Motion for Rehearing Overruled July 5, 1924.

James F. Green, of St. Louis, and A. E. Spencer, of Joplin, for appellant.

Hugh Dabbs, Norman A. Cox, and Walden & Andrews, all of Joplin, for respondent.

In Banc.

JAMES T. BLAIR and WHITE, JJ., concur.RAGLAND, J., concurs in result.GRAVES, C. J., and DAVID E. BLAIR and WOODSON, JJ dissent.

OPINION

WALKER, J.

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:

'As I traveled along with this Ford car beside me I could see in front the way I was going. I couldn't see down the track on account of the other car. I listened to see if I could hear any whistle. I was listening while my car was running at a low rate of speed. I had my curtains on, but don't see why that should interfere with my hearing. At any point while the Ford was running alongside I could have put the brakes on and stopped right then. My car was longer than the Ford. When that car made its turn to the north and I turned, I don't know how far I went towards the railroad track in seeking to avoid the Ford car; it was all done so quick; I went just a few feet; I went nearly to the track, and when I straightened up I was right on the track. When the Ford turned in front of me, I paid attention to it to keep from running into it, and when it cleared and I righted my car I was on the track. I did not have time to look to the south until I was on the track; I was busy trying to keep from running into the Ford or getting run into. This car obstructed my view, but we were in plain view of the engineer. The engineer was higher up in the cab than I was in the car. I was half or two-thirds of the way across the track when I got hit; I must have been a little over half way on account of getting thrown to the west side.'

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:

'Yes, sir. I didn't try to stop it; I straightened up. I knew I had come down this road for 140 feet without any chance to see down this railroad tract; I went on the track without looking, knowing that I hadn't looked for 140 or 150 feet; I couldn't do nothing but get out of the way of the Ford.'

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:

'I cut the steam off when I hit the down grade, and was doing what they call coasting. When I first saw the automobile it was, I guess, somewhere about 100 or 150 feet from the crossing. I suppose I was about the same distance from the crossing that he was when I first saw him. The auto kept coming on until we hit it. As soon as I saw the auto I blew the whistle and applied the air. I jerked the whistle alarm but didn't have time to whistle. I won't say the whistle sounded. I made the attempt to whistle. I was somewhere near a little culvert.'

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:

'I have been an engineer for defendant about 18 years. I recall the accident in which Mr. King was injured. I was driving the engine which was in that accident; the accident occurred at about 11:27 a. m., March 12, 1921. I was coming from Joplin going towards Webb city; and I had just engine and a caboose. I ran east out of Joplin a ways, and then turned and was going something near north when I crossed Seventh street; when I reached the curve I gave the regular crossing signal. The crossing signal is two long and two short blasts. I never measured the distance between that post and the crossing. The fireman was ringing the bell, and he continued ringing until we went over the crossing. I know that from hearing it. As I swung around there I was on the right-hand side, so whatever view there is to the east of the track was on my side. An engineer in his cab looks down the track ahead of him; there is a window to look through or you can look out the side of the cab. At that time I was looking out of the side of the cab. As I swung around I could not see to the west or left of the road at all; I had no view of the road to my left. The boiler and equipment of the engine obstruct the view from the opposite side. When I swung around and straightened out I did not see any automobile. I presume I was close as 100 or 150 feet from the crossing when I saw the automobile. I was crossing a little bridge or culvert when I first saw it; it was coming down the street pretty close to the track; it was about as close as I was to the crossing; I had not seen it before. When driving an engine I direct my view down the track. This was the only automobile I saw at that time; it was moving at a pretty rapid speed. As soon as I saw it I blew the whistle and applied the air; I think the whistle made a little sound; I sounded it by giving it a jerk, and applied the air. The effect of applying the air is to set the brakes. I was running at that time about 18 miles an hour. When you apply the air the brakes ought to take effect almost instantly, but you will notice a few seconds before you will feel it holding tight. I was running down grade at the time; that would have an effect on the stopping. After putting on the brakes, we hit the automobile pretty presently; I didn't have time to count the seconds. The automobile kept on coming until we hit it; it was when hit right square in the center of the track; we carried pieces of it down the track. I ran about 300 feet before I stopped the train. I put on the air; ordinarily there is not much more to do; the air is supposed to do all there is to do in the way of stopping a train. Approaching this crossing I don't remember seeing any automobile until after we stopped; after that I noticed...