Langley v. Hines

Citation207 Mo. App. 587,227 S.W. 877
Decision Date14 February 1921
Docket NumberNo. 2729.,2729.
PartiesLANGLEY v. HONES, Director General of Railroads.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Dal Langley against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Reversed.

Jas. F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.

David W. Hill, of Poplar Bluff, for respondent.

BRADLEY, J.

Plaintiff was injured and his automobile damaged while attempting to cross Park avenue in the city of Poplar Bluff on June 15, 1919. Plaintiff alleged the failure to sound the whistle or ring the bell, and also the failure to observe an eight-mile speed ordinance in force in said city. The answer was a general denial and a plea of contributory negligence. A jury trial resulted in a verdict for $300 for personal injury, and $100 for damages to the automobile. Failing to get a new trial, defendant appealed.

Plaintiff was on Park avenue in a Ford automobile, approaching the crossing from the east On a clear day about 11:50 a. m. The railroad tracks run nearly north and south, and intersect Park avenue at about right angles. As plaintiff approached the crossing there was an engine with two cars backing south over the crossing on the track immediately east of the tract where the collision occurred, and plaintiff stopped, but left his engine running, until this engine cleared the roadway of the street, and then he proceeded to cross. The train that collided with plaintiff was a passenger train, approaching from the south. The distance between these two tracks was 10 or 12 feet. The depot was north of this crossing some 300 or 400 feet. The bell on the engine on the side track was ringing as that engine and two cars passed over the crossing. This engine stopped after the crossing was cleared, and plaintiff's view to the south was obstructed until he passed the standing engine. Plaintiff says that he was driving his car in low, and was moving at the rate of about three or four miles per hour. The train that struck plaintiff consisted of the engine, a baggage car, and two passenger coaches, and after the collision the train ran the length of the engine and two of the coaches before stopping. Plaintiff testified that he looked and listened for the approach of a train when he was standing on the east side of the switch track, but that he did not hear this approachng train. He did not look after he had reached a point where he could see, and where looking would be effective.

Plaintiff alleged the failure to sound the whistle or ring the bell, and offered evidence of a negative character to show that neither was done, but defendant's evidence was that the whistle was sounded at a crossing south of Park avenue, and that the bell was ringing as this street was approached and crossed. Plaintiff went to the jury, however, with only the alleged violation of the speed ordinance as a ground of negligence.

[1] The only question we need to consider is whether defendant's demurrer at the close of the whole case should have been sustained; that is, Does the evidence show that plaintiff was guilty of contributory negligence as a matter of law? We are of the opinion that the evidence so shows. When plaintiff's view was obstructed by the switch engine and the two cars, it served no purpose to look, and the noise of the switch engine and his automobile engine evidently rendered listening ineffective. After the switch engine cleared the roadway he proceeded...

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