Mason v. Kurn

• Decision Date: 19 December 1940
• Docket Number: No. 25399.,25399.
• Citation: 145 S.W.2d 465
• Parties: MASON v. KURN et al.
• Court: Missouri Court of Appeals

145 S.W.2d 465

MASON v. KURN et al.

No. 25399.

St. Louis Court of Appeals. Missouri.

December 19, 1940.

Rehearing Denied January 4, 1941.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action by John L. Mason against James M. Kurn and another, trustees of the St. Louis-San Francisco Railway Company, to recover damages for personal injuries. Judgment for plaintiff, and defendants appeal.

Affirmed.

E. G. Nahler, A. P. Stewart, and C. H. Skinker, Jr., all of St. Louis, for appellants.

William R. Schneider, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover both actual and punitive damages for personal injuries sustained by plaintiff when a truck, owned and driven by him, was struck by defendants' passenger train at a public crossing, known as Welsh's crossing, about a mile west of the village of Robertsville, in Franklin County, Missouri.

The trial, with a jury, resulted in a verdict and judgment for plaintiff for $2,500 actual damages and $1,500 punitive damages. Defendants appeal.

The only assignment of error made on this appeal is with reference to the allowance of punitive damages. Defendants contend that the evidence does not warrant an award of punitive damages, and that therefore the court erred in giving instructions authorizing the jury to award punitive damages, and ask this court to reverse the judgment and remand the cause with directions to the trial court to enter judgment for plaintiff for actual damages in the sum of $2,500.

The collision whereby plaintiff sustained the injuries for which he sues occurred on February 22, 1938, between 2 and 3 o'clock in the afternoon. It was a damp rainy day.

In going from Robertsville to the crossing plaintiff traveled along a county road which ran in an easterly and westerly direction, paralleling the railroad track. He was operating his truck in a westerly direction until he reached a point about twenty-five feet from the crossing, where the road made a sharp turn to the left, or south, and crossed the railroad track. About six or seven hundred feet east of the point where the county road turns to go up over the crossing the road passes over a high hill or bluff, and at this location the railroad track, which parallels the county road on the south, passes through a deep cut. Proceeding in a westerly direction from the crest of this hill towards the point where the county road turns sharply to the left, or south, to go over the crossing, the road descends sharply to a point ten feet lower than the railroad track, and continues at that relative level below the track to the point where the road turns south to go up over the crossing. Adjacent to this low stretch of roadway and between it and the railroad track there was at the time of the accident an embankment. The top of this embankment was ten feet above the level of the track, and the roadway parallel with the track was ten feet below the level of the track, so that the top of the embankment was twenty feet above the level of the roadway. There was a steep incline from this level of the roadway to the crossing. This embankment was such as to obstruct a train, approaching the crossing from the east, from the motorist's line of vision as he approached the crossing from the north, and he would have to look almost completely backward to see the train approaching, and then could not see it until starting up the steep incline to the crossing, and could see it only a distance of 150 feet from the crossing.

Plaintiff testified that when he reached a point twenty or twenty-five feet north of the crossing, he stopped and put his truck in double low; that he looked to the east and could see no train approaching; that he heard no bell or whistle; that he then proceeded toward the crossing; that when the front wheels of the truck were at the first rail of the track, or possibly barely over the first rail, he saw the approaching train for the first time; that it was right on him and traveling at a very high rate of speed, possibly fifty or sixty miles an hour; that he threw open the left door of the truck and started to jump when the collision occurred, and that that was the last thing he remembered until two men lifted him up and had him standing on his feet, holding onto him to steady him.

The testimony shows that this was an unusually dangerous crossing; that the view to the east of a traveler approaching the crossing from the north was badly obstructed by the embankment between the railroad track and the county road and also by the cut through which the railroad passed some six or seven hundred feet east of the crossing and the southward curve in the track east of the crossing; that there had been a number of accidents and near accidents at this crossing prior to the accident in question here; that in 1933 a petition of the citizens of Robertsville, Meramec Terrace, Meramec Hills, and the surrounding sections of Franklin County, was filed with the Judges of the Franklin County Court, complaining that this crossing was dangerous and asking that the railroad be compelled to build a bridge to carry the county road over the railroad...