Lyter v. Hines

• Decision Date: 10 August 1920
• Docket Number: No. 2647.,2647.
• Citation: 224 S.W. 841,205 Mo. App. 429
• Parties: LYTER v. HINES, Director General of Railroads.
• Court: Missouri Court of Appeals

224 S.W. 841

205 Mo. App. 429

LYTER v. HINES, Director General of Railroads.

No. 2647.

Springfield Court of Appeals. Missouri.

August 10, 1920.

Rehearing Denied November 8, 1920.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

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

W. F. Evans, of St. Louis, and Ward & Reeves, of Caruthersville, for appellant.

J. L. Fort, of Dexter, and K. C. Spence, of Bloomfield, for respondent.

FARRINGTON, J.

Plaintiff sued to recover for personal injuries to himself and destruction of his automobile, caused by collision with a locomotive engine on a public crossing in Bloomfield. The milk was tried to a jury, resulting in a verdict and judgment in favor of plaintiff for $3,000, from which judgment defendant appealed.

Plaintiff charges that defendant was negligent in the operation of the train in failing to keep a lookout on and over the street crossing, and in failing to ring the bell or sound the whistle as required, and in running the train at an excessive rate of speed of from 25 to 40 miles an hour, in violation of a city ordinance. The answer was a general denial and a plea of contributory negligence.

Plaintiff was injured, and his automobile destroyed, when he attempted to cross what is designated in the record as the mill, or switch, track, running some distance south from the main track near the depot in Bloomfield. Prairie street, on which plaintiff was injured, runs east and west, and intersects the mill track at right angles. The mill track extends south from the main track some half a mile, but deflects a little southeast about 600 feet south of the Prairie street crossing. The crossing is a short distance east and south of the depot. The mill track is laid in a valley, so that one coming from the east to the west on Prairie street, as was plaintiff, independent of other obstructions, will not be able to see a train south of the crossing until the crest of the ridge is reached, which point is 164 feet east of the center of the track at the crossing. Between the 164-foot point and the crossing are two buildings. Twenty-five or 30 feet south of the main-traveled part of Prairie street, and 6 or 8 feet from the east rail of the track, is a grain warehouse about 80 feet long, 30 feet wide, and 25 feet high. About 30 feet east of the warehouse, and about 20 feet south of the street, there is a small building about 18 or 20 feet square. Between the warehouse and the small building, but near the southeast corner of the warehouse, there was a clump of two or three small trees. At the time of plaintiff's injury, November 25, 1918, there were some cornstalks to the south of Prairie street and between the 164-foot point and the crossing. Plaintiff at the time of his injury was engaged in driving a Ford service car, with all the curtains up, except the front curtain on the right, and the wind shield was down. Plaintiff says, however, that he could see through the windows in the curtains as well as if he had had the top down. Plaintiff met the 10:20 a. m. train, and secured a passenger for Dexter. This passenger stopped for a few minutes up town in Bloomfield, and plaintiff was returning to the depot to meet the 11:10 train. "I started back to meet the 11:10, and after I made the turn on Prairie street going west, when I came to where I could see the railroad track — I knew the Campbell train was in — I looked as far as I could see up the track, and I couldn't see no train or hear any train or see the smoke of it. I judge I was driving at about 8 or 10 miles an hour, and I was right on the track when I was struck." Plaintiff says that he was 164 feet from the crossing at the time he looked south for a train; that then he could see down to where the track made a slight curve to the southeast, which point is about 600 feet south of the crossing.

After passing the 164-foot point plaintiff did not again look for a train. On cross-examination he stated:

"I didn't look, and I'll tell you why. I didn't see no train within 600 feet of that track, and I only had about 160 feet to go and could run that at 8 miles an hour be fore a train could come down there 600 feet, and knew they were not allowed to run over 8 miles an hour. I mean I understood they were not allowed to run over 8 miles an hour. T think that scales there is right on the ridge; I think that is about halfway, I don't know. When I got there I looked off up the railroad, and didn't see anything or hear anything. So I drove right on, and attempted to cross. That's all I did. Of course a didn't look any more."

Ben Unger, a witness for plaintiff, was working 200 or 300 yards from the mill track, and south and west of the crossing, and he says that he did not hear the whistle or bell sounded. "I did not hear that train sound the whistle, and I did not hear it ring the bell; if it did, I didn't notice it at all. In fact i never thought anything about the train going down." This witness says that when the train passed him it was running about 25 miles an hour. He fixes this point at about 200 yards south of the crossing, and himself at 200 or 300 yards west of the train when it passed him. He also stated that he did not Mean to say that the bell did not ring. ": don't know but what the bell rang and the whistle blew, but I didn't pay any attention to it." This witness also stated that he paid no attention to the speed of the train after it passed him, and did not know what speed it was running when it approached the crossing. Sam McRoy, a witness for plaintiff, was about the crest of the ridge east of the crossing at the time of the collision, and he says that he did not hear the train whistle, and didn't pay any attention to the bell ringing. On cross-examination this witness said:

"I didn't say the bell did not ring. I mean I didn't pay any attention to it, if it rang. I didn't pay any attention to the whistle either. don't say it didn't ring; I said I didn't hear it. I wasn't studying about anything of that kind."

J. M. Williams, produced by plaintiff, was about 50 yards north of the crossing, as we understand, and he says that he did not see plaintiff approaching the crossing, but did see the train approaching, and heard it whistle about 200 yards south of the crossing, but was not positive about the bell. Allen, the city marshal, called by plaintiff, stated that if one were watching closely there was a space of about 30 feet between the two buildings where an approaching train could be seen. There is a 30 or 40 foot space between the two buildings. There was not any corn in there. He could have seen it if he had looked through there. Plaintiff was recalled, and stated that he thought the corn was high enough to prevent him from seeing the train as he passed over the ridge.

For the defendant the engineer, fireman, and also the brakeman, who was at the time in the engine cab, testified that the whistle was sounded about 600 feet south of the crossing, and the bell rung continually from that...