Marshall v. St. Louis-San Francisco Ry. Co.
| Decision Date | 03 April 1950 |
| Docket Number | LOUIS-SAN,No. 21267,21267 |
| Citation | 229 S.W.2d 724 |
| Parties | MARSHALL v. ST.FRANCISCO RY. CO. |
| Court | Missouri Court of Appeals |
C. A. Calvird, Clinton, David Trusty, Kansas City, Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for appellant.
E. G. Nahler, St. Louis, Thos. E. Deacy, Kansas City, Haysler Poague, Clinton, Ray L. Shubert, Harrisonville, Milligan, Kimberly & Deacy, Kansas City, Poague, Poague & Brock, Clinton, for respondent.
Appellant, as plaintiff, brought this action in the Circuit Court of Cass County, Missouri, from which, on change of venue, it went to the Circuit Court of Henry County. It is a cause of action for damages to person and property, arising out of a collision on a railroad crossing on Highway 50, near Burrton, Kansas, between a freight train of the defendant (respondent) and an automobile which the plaintiff was driving at the time. The case was submitted on the last clear chance doctrine of the State of Kansas, and the verdict and judgment were in the plaintiff's favor in the sum of $5000. Thereafter, upon motion of the defendant, a new trial was awarded, the verdict and judgment were set aside and a judgment entered in favor of the defendant. Plaintiff appealed.
The part of plaintiff's petition on which he submitted his case alleged that he 'was in a position of imminent and inescapable peril from the movement of said train and that defendant knew, or by the use of due care could have known thereof in time thereafter, by the use of ordinary care and with the use of the means at hand and with safety to the train and those on it, to have stopped said train or slowed its speed and thereby have prevented said collision and defendant negligently failed so to do, and that as a direct result of defendant's failure so to do, this collision occurred and plaintiff was injured and his automobile damaged'. The answer was a general denial and a charge of contributory negligence.
Plaintiff's evidence tended to show that for some years he had been engaged in the business of servicing and repairing automobiles, including brakes and brake systems; that he had driven automobiles for many years; was familiar with the mechanical construction and operation of automobiles; that he had had experience in driving on concrete highways, both wet and dry; that he had owned and operated the car in question for two and a half years; that on the day in question the brakes of the car were in good condition; that he had had no difficulty with the steering apparatus, nor with any skidding or sliding of the car; that the car was generally in good condition; that his windshield was clear, his vision and hearing were good. Plaintiff testified that about 5:15 p. m. on May 18, 1946, he picked up three passengers in or near Wichita, Kansas, and they were intending to drive to a social gathering at Hutchinson; that as they were traveling on Highway 50, at 40 or 50 miles an hour on the concrete slab of that highway, 18 to 20 feet wide, they approached the scene of the accident. It was daylight. He did not notice a highway railroad warning sign on the right hand side of the highway some several hundred feet east of the crossing, nor did he notice the large crossarm railroad warning sign east of and near the crossing; that he heard no bell, whistle, or noise of any approaching train from the north. The crossarm sign could be seen from a quarter of a mile east on the highway. There was a shelter belt of trees to his right and about 30 feet north of the highway, beginning several hundred feet east of the crossing and extending to within about 104 feet of the railroad crossing. This shelter belt was about 100 feet thick, extending also northward along the east side of the railroad tracks. The trees in the shelter belt were in full foliage and the view through them was thereby obstructed. There was no car in front of the plaintiff between him and the railroad crossing, and the highway was straight and was wet, or at least damp. He had driven through several showers on the trip. There was a road leading from the highway to the left and about 25 feet east of the crossing.
Plaintiff testified that the first knowledge he had that he was approaching a railroad crossing was when he saw the engine coming from the north and into view beyond the west end of the shelter belt of trees. He estimated that he was then about 175 to 200 feet from the main line of the crossing on which the train was running, and approaching at about 15 miles an hour, which was not decreased before the collision. One of the parties in the plaintiff's automobile exclaimed that there was a train approaching, and the plaintiff jammed on his brakes and succeeded in reducing his speed down to 15 miles an hour before reaching the crossing. He did not turn left from the highway on the road above described. He said he believed had he attempted to do so his car would have overturned. He testified that after he applied his brakes his car swerved and he lost control over it. It was his judgment that if he had not lost control of the car he could have stopped before reaching the crossing. He could not recall whether he depressed the clutch when he applied his brakes or whether the car was still in gear, but remembers turning his steering wheel from side to side. He said the brakes were good enough to lock the wheels and cause them to slide, but did not recall whether he applied them sufficiently to cause them to do so. After the collision the car was still on the highway, and the rear end of the train was some 30 feet south. There was evidence that such a train, consisting of an engine, tender, caboose and four loaded freight cars, traveling 15 miles an hour, could be brought to an emergency stop within 100 to 110 feet from the instant the fireman called for such a stop, and within 125 to 150 feet while traveling at 20 miles an hour.
Plaintiff, on cross-examination, was asked:
'
.
There was some evidence by witnesses for the plaintiff that the car had skidded, but the distance was indefinite. The evidence showed that the automobile, with great force, contacted the engine at its cylinder housing near the front left wheels and about 12 feet back from the front of the engine, and the automobile was wrecked. The plaintiff and other passengers were severly injured, one of them fatally.
There was testimony on the part of defendant's fireman to the effect that when the front of his engine was 25 feet north of the highway, he saw plaintiff's car approaching about 175 feet east of the crossing at about 70 miles an hour; that he immediately called to the engineer to 'big hole it', meaning to make an emergency stop; that the automobile continued to approach the crossing, and when within 70 feet of it, the automobile crossed over the center line, and skidded a time or two, and then straightened out and proceeded forward to the point of collision. He said the front end of the engine was then south of the south edge of the highway, and that the train was stopped within 300 feet after the emergency brakes were applied. He stated that the train had been running 35 miles an hour when a service application of the brakes had been made 1300 feet to the north, and the speed had been reduced from 15 to 20 miles an hour at the time of the collision. He said that the reduction of the air pressure on account of the service application had been regained when the emergency application was made. The crew measured certain skid marks which extended some 87 feet east of the crossing. There was evidence that the railroad crossarm could be seen for a considerable distance on the highway to the east, and that both whistle and bell had been sounded for about two city blocks north of the highway as the train approached the crossing. All of the defendant's witnesses, including state patrolmen, who were at the scene of the accident at the time or shortly thereafter, testified that the highway was entirely dry and that there had been no rain there until after the accident.
The trial court sustained defendant's motion for a new trial on the grounds that (1) Because plaintiff's own evidence disclosed that plaintiff was guilty of negligence which directly caused or contributed to cause the collision mentioned in evidence and because plaintiff's negligence continued up to the time of the collision between plaintiff's automobile and the train. (2) Because the evidence failed to establish a submissible last clear chance case under the law of Kansas. (3) Because plaintiff was not entitled to recover under the law of Kansas. (4) Because the court erred in overruling, over the objection and exception of defendant, the motion filed by defendant for a directed verdict at the close of all of the evidence in the...
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Marshall v. St. Louis-San Francisco Ry. Co.
...to the Kansas City Court of Appeals and that court affirmed the judgment, holding that plaintiff had failed to make a submissible case. 229 S.W.2d 724. The cause was transferred here upon the order of this court and we must review the record as though the appeal had properly come to this co......