Maclay v. Missouri Pac. Ry. Co.

• Decision Date: 13 August 1927
• Docket Number: No. 3988.,3988.
• Parties: MACLAY v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

299 S.W. 626

MACLAY v. MISSOURI PAC. RY. CO.

No. 3988.

Springfield Court of Appeals, Missouri.

August 13, 1927.

Rehearing Denied November 15, 1927.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Action for death, brought by Mamie Maclay against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

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

Jones, Mocker, Sullivan & Angert, of St. Louis, for respondent.

BAILEY, J.

Plaintiff sued for the death of her husband, who was struck and killed by defendant's train while riding in an automobile at a public crossing near Summit, Mo., on the 12th day of September, 1923. Plaintiff recovered judgment in the sum of $5,000, from which judgment defendant has appealed. An opinion was filed in this case at the October term, 1926, of this court, affirming the judgment. On motion of defendant a rehearing was granted, and the case was reargued at the March term, 1927.

Plaintiff in her petition charged negligence in the failure of defendant's servants to observe the statutory signals and in operating the train at a dangerous rate of speed, considering the character of the crossing. The answer consisted of a general denial and a plea of contributory negligence. Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given. The facts are substantially as follows:

Plaintiff's husband, John Maclay, was about 61 years of age and in perfect health at the time of his death. His hearing and eyesight were unimpaired. He was manager of the Potosi Mill & Elevator Company and had lived in that community many years. Summit is a flag station, located at the peak of a hill on defendant's railroad. At that point the railroad runs north and south; the crossing where deceased was killed is located about one-quarter of a mile north of Summit. There is a wood and lumber yard about 225 yards north of the station, on the east side of defendant's tracks; a spur track ran from defendant's main line track to this yard, entering it at the north end where there was a gate situated about 400 feet south of the crossing. At the time of the accident wood was stacked along this spur track about two cords high for a distance of 310 feet; there was also a thick growth of trees, with dense foliage, along the spur track. There was much evidence that, between the north end of the wood yard and the crossing and east of the main line track, weeds and a new kind of clover, which seems to attain a height of some 5 feet, were growing on defendant's right of way at the time of the accident. This clover and weeds are out of the case, however, as it is quite clear deceased's vision was not materially obstructed thereby. The highway on which deceased was driving at the time of his death runs parallel to the railroad track for almost a quarter of a mile, and then curves a little to the northeast, and then turns back northwest about 50 yards from the crossing. The roadway is some 8 feet lower than defendant's tracks, and as it turns west, about 50 or 60 feet from the tracks, it approaches the crossing on a dump. On account of the cordwood and trees heretofore mentioned, defendant's tracks could not be seen by a person traveling north along the public road until the train would be within 200 or 300 feet, and the person on the road within 50 or 60 feet, of the crossing, or just at the point where the public road turned west before reaching the crossing; after passing this point to the crossing the road was rather steep.

Deceased was familiar with this crossing. At the time of the accident he was driving his automobile along this public road in a northerly direction, which was the same direction the train was running that killed him. The train, as it approached this crossing, was going at the rate of about 40 miles per hour; it was down grade and the locomotive was "coasting," making very little noise Besides the engineer, there was but one eyewitness to the accident, a Charles Marler, who testified on behalf of defendant as follows:

"I saw him [plaintiff's decedent] coming down the road. I was between 75 and 80 yards from the railroad, northeast of the crossing. I saw him coming down the road, and I watched him, to see if he was going to try to beat the train across the crossing; and I could see the train, and he reached down to shift his gear, and just as he ran on the track the train hit him. He did not stop before he got on the track. He slowed up a little bit, to pick up speed. He slowed up, and then he picked up speed again. I saw him in the car. I don't think he had any curtains on the car. It looked to me like he was looking toward Potosi. From where he was he couldn't have seen the train until he was two telegraph poles from the crossing. Then he was close enough to see it. I could see it all the way. I never noticed, to see whether he was looking toward the train or not. I never noticed that. Just when he run on the track was when the train hit him and turned him right around. The automobile had not stopped before the train hit it; it wasn't still. He was coming about 10 miles an hour. I can't say whether he shifted the gears or not. It looked to me like he did. He made a motion with his hands, and that is what I thought he was aiming to do."

On redirect examination he testified that:

"I did not say he was in a little hollow and couldn't see the train. When he got up on the dump, he could see it. When he went to shift his gears, he was looking down—wasn't noticing the train."

On recross-examination he further testified that:

"This dump is right there at the track. When you are on the dump, you are on the track. I was 75 or 80 yards away. My father was with me. I couldn't tell which way he was paying attention to."

The evidence also showed this witness was 75 or 80 yards northeast of the crossing, on higher ground than deceased; there Is no evidence that he made an examination as to the view from the point where deceased was approaching the crossing.

George Wallace, plaintiff's brother, testified that he went over the next morning after the accident to ascertain the probable cause of deceased's death; that the wood at the wood yard along the switch track was ranked up as high as you could throw it off of a wagon; that he—

"made a trip over there after this accident, and I was watching for the train, and it took sever. seconds from the time you saw the train until it hit the crossing.

"Q. Where is the point you could see the train? A. A little bit north of Cordias' wood yard.

"Q. What would you say as to the distance from the crossing? A. I would say it was 200 or 300 feet, possibly. That is the first point I could see the train.

"Q. Where would you be standing to see the train at that place? A. Right where he was supposed to have shifted gears.

"Q. Where was that? A. Down in this little branch, before you make the turn to go up on the crossing.

"Q. That would be how far up to the track? A. Fifty or 60 feet. Your view would not increase any as you pass over that 50 or GO feet. You would have to be nearly up to the track before you could see up on the dump.

"Q. And as you would keep coming up over that 50 feet, your view wouldn't be extended very much further?"

The foregoing statement of facts, taking the evidence most favorable to plaintiff, may be briefly...