McKerall v. St. Louis-San Francisco Ry. Co.

Decision Date07 December 1923
Docket NumberNo. 3393.,3393.
Citation257 S.W. 166
PartiesMcKERALL et al. v. LOUIS-SAN FRANCISCO RY. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by J. D. McKerall and another against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, and cause certified to Supreme Court.

W. F. Evans, of St. Louis, Howard Gray, of Carthage, and Mann & Mann, of Springfield, for appellant.

Sizer & Gardner, of Monett, for respondents.

BRADLEY, J.

Plaintiffs' daughter, Roanne McKerall, 17 years old, while riding in an automobile, was struck and killed on the Vinton crossing about 2½ miles west of Strafford, Mo., and a short distance east of a flag stop called Nogo. Plaintiffs recovered a judgment for $5,000, and defendant appealed.

Plaintiffs filed their petition in two counts The first count charged negligence in permitting weeds and other things to obstruct the view in approaching the crossing, and on the condition of the crossing. The second count was based on the alleged failure to give the statutory signals. The answer was a general denial, and a plea of contributory and imputed negligence. At the close of the case plaintiffs elected to stand on the second count.

Defendant assigns error on the refusal of its instruction in the nature of a demurrer to the evidence, on the admission of evidence, and on the instructions.

Deceased resided with her parents southeast of the Vinton crossing, and about four miles from Strafford. Plaintiff J. D. McKerall, father of deceased, on the afternoon of the day of the collision, returned from Springfield in his Ford touring car. Deceased took the car and drove her mother and some of the children to the home of her mother's mother, who lived near Strafford. After the mother got out, deceased drove the children to Strafford, where they were to participate in some exercises. At Strafford the McKerall children got out, and Bernice Robertson and the Willis child, about two years of age, were taken into the car. It was not shown what road was taken from Strafford, but the next time the car" was seen it was a short distance west of the Vinton crossing, traveling east, and Miss Robertson was driving, and deceased was sitting to the right and by the side of Miss Robertson, and was holding the Willis child in her lap. The public highway where deceased was last seen alive runs practically east and west on the south side of the right of way, and was lower than the railroad track. About a quarter or half mile east of the point where the occupants of the car were last seen, the public road turns north up a rather steep grade, and crosses the railroad at about right angles at the Vinton crossing, and then turns east and continues on the north side of the right of way. A west-bound passenger train, running about 50 miles per hour, at about 5:15 p. m., struck the automobile on the Vinton crossing, and all three of the occupants were killed.

The public road as it approaches this crossing from the west is about 50 feet from the railroad track, and at a point about 330 feet west of the crossing is 12 or 15 feet lower than the track. It is up grade from this low place to the crossing, and the roadway where it turns north is about 4 or 5 feet lower than the track over the crossing. A straight line drawn from the south rail of the railroad track to where the public road begins to bend to the west would be 35 or 40 feet in length.

Plaintiffs offered evidence tending to show that the statutory signals were not given, and defendant offered evidence to the contrary. Defendant bases its first assignment on the contention that the evidence shows conclusively that in approaching this crossing the view to the east was so free from obstruction that the traveler had but to look In order to see, and that, if such were the case, plaintiffs cannot recover, even though the required signals were not given. We quote briefly from plaintiffs' witnesses: J.H. Gillispie:

"When they get to the turn and start up the dump, there seems to be a sort of dump there where they cleaned out for the crossing, and weeds and a few brush there. I judge the brush was somewhere 6 to 8 feet high. It obstructs the view of a person driving in a Ford car. I don't believe a person could have seen a train until the front wheels was practically against the rails, if the train was coming from the east."

R. H. Focht:

"After the turn, there are sprouts, shrubs, low trees, and everything else east of a person turning to go across the track, to obstruct the view of an approaching train of one sitting in a car. I never considered myself safe to cross the track until I had the front end of my car right at the rails ready to go on, before I was sure: was safe, on account of these trees that were growing right beyond the turn of the road."

J. W. Hart:

"'I have made observations along about that time driving along there to see how far you could see and how close you had to get. The front of my car would be about 5 or 5 feet from the south rail when I would be beyond the obstructions and could see an approaching train."

Bud Potter:

"The road comes from the west and makes a pretty square turn across the track. There were weeds and brush on the right of way there. After you got on the low ground you couldn't see until you got right up to the track. With the weeds in the condition and brush there, as I saw them that afternoon, a person seated in the front seat of a Ford car approaching that crossing from the south could not see a train until the front wheels would be right at the track. There were weeds and brush there that would shut off the view of the train."

Julia Vinton:

"As you come around that curve going over this crossing there were weeds and brush and sprouts, as we call them. They were all along the right of way and over in the field. There is a cut there, and it grew to the edge of the cut. I don't know how close to the track, because I am no judge of distance. In making that turn, this growth would obstruct your view to the east of a train. I really don't believe you could have seen the train coming until the front wheels a your car were 3 or 4 feet from the track."

On cross-examination, the last-mentioned witness testified:

"As you come east on this wagon road before you get to the turn you would be coming right straight into this brush. You couldn't sec through them and see anything at all. Then you made your turn to go over the track. I can't tell you the distance the weeds were from the track; I am no judge of distances. I know there were weeds and grass in the corner so you could not see the right of way as you came from the west. After you turn north to go over the track you couldn't see up the track until after your wheels were about 3 feet of the track."

Plaintiff J. D. McKerall:

"In approaching the track, a person sitting in the car as my daughter was, on the right-hand side, you are kind of down and when you got about 3 or 4 steps of the rail you couldn't hardly see anything; you couldn't see up the track very far, especially if the train was off a little ways. Weeds were close in there to the track and farther back was some bushes and brush. The weeds were growing on the south side of that wing fence so you couldn't see the fence part of the way; they were on the right of way. If you were more than feet back it would be difficult to see up the track at all, The front end of the car would be 5 feet more, that would be right up close to the track, 4 feet or less. The train sticks over the track about 2 feet."

Defendant offered evidence tending to support its contention as to obstructions. The evidence on the question was sharply in conflict, and the solution was for the jury.

The evidence complained of related to the experience that others had in passing over this crossing. Evidence as to condition of the crossing and its approach was admissible under the first count since that count was based on an alleged defective crossing. The same evidence was also admissible under the second count. One about to cross a railroad track in an automobile or other vehicle has the right to give some attention to the roadway and his vehicle. But we do not believe that the individual experience of others, in different automobiles and of different makes, is competent. There is too much difference, we think, in automobiles and the skill of drivers to make individual experience competent. As stated, the plaintiffs stood on the second. count. Also the court instructed that defendant could not be found guilty of negligence on account of the condition of the crossing. Such being the case, we do not think that the admission of the evidence complained of was harmful to defendant. What we have said as to the competency of the evidence of the condition of the crossing and the approach under the second count has been said in view of a second trial.

Defendant challenges instructions B and D, given for plaintiffs. Instruction B is as follows:

"The court instructs the jury that, in the absence of direct evidence or rebutting circumstances, the deceased, Roanne McKerall, while being driven in said car over this railroad track at the public crossing in question, is presumed to have exercised ordinary and reasonable care in looking and listening for approaching trains, and you are further instructed that the deceased had the right to assume that the servants and employés of defendant, in running its trains, would give the signals required by law when approaching the crossing of the public highway on which she was traveling, and the burden is on the defendant to prove, by the greater weight of the evidence, that the deceased failed to exercise ordinary care under the circumstances to avoid the injury, and that her injury and death was directly contributed to by such failure, if any, on her part, to...

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