McNeil v. Missouri Pac. Ry. Co.

• Decision Date: 06 December 1915
• Docket Number: No. 11673.,11673.
• Citation: 182 S.W. 762
• Parties: McNEIL v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

182 S.W. 762

McNEIL v. MISSOURI PAC. RY. CO.

No. 11673.

Kansas City Court of Appeals. Missouri.

December 6, 1915.

Rehearing Denied February 7, 1916.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

"Not to be officially published."

Action by Alexander McNeil against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Edward H. Batson, of Kansas City, for appellant. White, Hackney & Lyons, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff was injured March 1, 1913, in a collision at a public railroad crossing in Cawker City, Kan., and sued to recover damages on the ground that his injury was caused by negligence of defendant. The answer, among other defenses, alleged contributory negligence. The cause is before us on the appeal of defendant from a verdict and judgment for $2,500 recovered by plaintiff in the circuit court.

Defendant's railroad runs through Cawker City on a straight course from southeast to northwest, and near the station is crossed at right angles by a street or road connecting the depot with the town, the central portion of which is half a mile distant. Plaintiff owned and was the driver of an omnibus which met all passenger trains, and was driving to the station with a full load of passengers to meet an east-bound passenger train scheduled to arrive at about 10 o'clock p. m. He was late in leaving the hotel, and drove rapidly, almost at a gallop, and part of the way in a gallop. When about three blocks from the crossing he heard a whistle which he thought was from the expected passenger train, and for a crossing a mile or more west of the station. It was necessary to cross the main track to reach the station, and he drove fast in order to clear the crossing before the arrival of the train. He sat in an open seat in front, but the passengers were inside the inclosed body of the vehicle and all of the windows were closed. The bus was not new, and, of course, was noisy when running at high speed. There was nothing but the darkness to obscure the view along the track, and plaintiff states that he looked attentively, but saw no locomotive and heard no sound of an approaching train until the horses were at the crossing, when he was confronted with the sudden apparition of a locomotive coming from the west. Realizing that he would be unable to drive over the crossing in safety, he endeavored to avoid a collision by sharply turning the horses to the left. But the engine struck the turning horses, and plaintiff was injured. The body of the vehicle was unscathed, and no passenger was injured.

There had been a snowstorm with high wind, and the locomotive was pushing a snowplow, and had been sent out in advance of the passenger train to clear the track of drifted snow. It carried no headlight, but carried small signal lights on the sides and at the rear end of the caboose. Neither plaintiff, who states he was looking attentively, nor the passengers in the bus, who were facing westward, observed these lights, nor did they hear the train, though it made the usual noise of a running train, and doubtless would have attracted their attention if their own vehicle had been less noisy. A statute in Kansas pleaded in the petition (section 6998, c. 99, Gen. Stat. 1909) provides:

"That railroads in this state shall be liable for all damages done to person or property, when done in consequence of any neglect on the part of the railroad companies."

Another statute also pleaded requires every railroad company "to equip and maintain and use upon each and every locomotive engine being operated in road service within the state of Kansas a headlight of a power that will outline the figure of a man on or adjacent to the track, plainly visible at a distance of 800 feet preceding the locomotive," etc., and denounces as a misdemeanor and prescribes adequate punishment for every violation of that enactment.

The negligence of which plaintiff complains is: (1) The alleged failure of the operators of the locomotive to whistle or ring the bell for that crossing; and (2) the negligent violation by defendant of the headlight statute....