Morris v. Chicago. R. I. & P. Ry. Co.

• Decision Date: 21 May 1923
• Docket Number: No. 14439.,14439.
• Citation: 251 S.W. 763
• Court: Missouri Court of Appeals
• Parties: MORRIS v. CHICAGO, R. I. & P. RY. CO.

251 S.W. 763

MORRIS v. CHICAGO, R. I. & P. RY. CO.

No. 14439.

Kansas City Court of Appeals, Missouri.

May 21, 1923.

Appeal from Circuit Court, Jackson County; Thad. B. Landon, Judge.

"Not to be officially published."

Action by Livingston Morris against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

Scholer & Alford, of Kansas City, for appellant.

Guthrie & Conrad and Hale Houts, all of Kansas City, for respondent.

THIMBLE, P. J.

Plaintiff's petition is in two counts. The first states an action for personal injuries sustained in being struck by defendant's train at a public crossing; the second is for damages to the automobile in which he was riding.

The crossing in question is in the state of Iowa. Plaintiff lived at the town of Stockport, some 10 miles northeast of Mt. Zion, and was on his way from Stockport to Keosauqua, Iowa; the last-named town being located 5 miles southwest of Mt. Zion. The city of Ottumwa is northwest of Mt. Zion.

Trains, or at least passenger trains, on defendant's line of railway, after going north or northwesterly to Mt. Zion, back southwest upon a spur or east prong of a Y, to Keosauqua, and then go forward, either on the same track back to Mt. Zion or on the west prong of the Y northwest to Ottumwa.

The collision occurred as a passenger train was backing southwest from Mt. Zion to Keosauqua. Plaintiff had come from Stockport southwest to and through Mt. Zion and was continuing on southwest to Keosauqua, the county road running in a general southwesterly direction and following "right along the railway." The first 3 miles of track from Mt. Zion was a long sweeping curve, and the county road crossed the railway some four or five times between Mt. Zion and Keosauqua; the crossing where the collision occurred being the third from Mt. Zion.

Plaintiff was driving his automobile, and it being a left-hand drive, he was, therefore, on the southerly side of the automobile, and his brother, seated beside him, was on the northerly side thereof. Both of them were well acquainted with the crossing and with the location of the track and with the method of operation of trains thereover. As they passed through Mt. Zion, they saw a train standing at or near the depot, and at each of the first two crossings over which they passed after they left Mt. Zion, they watched for the approach of a train.

For perhaps more than a mile before the crossing in question is reached, the county road runs alongside the south line of the rail-road right of way and parallel with the track, and then the county road turns at an angle of about 45 degrees, according to plaintiff's brother, and goes across the track making, however, according to plaintiff himself, "a pretty oquare crossing." According to plaintiff's brother, it was only 12 or 15 feet between the track and the point where the road turned to go across; according to plaintiff, the distance between the turn and the track was not "over probably 20 or 30 feet," and the road from the turn to the track was up a slight incline.

At a point northeast of the crossing the track makes a sharp curve which is located in a cut the southwest end of which, being the end nearest the crossing, is from 75 to 130 feet distant therefrom. In going from the crossing to and through the cut, the latter is only 3 feet deep at a point 10 rods or 165 feet from the crossing, 4 feet deep at a point 12 rods or 198 feet from the crossing, and deeper than that in the course of a rod or so farther on; the sharp curve above referred to lying somewhere between this point and the crossing. Plaintiff's brother testified that at a point 12 or 15 feet from the track one looking northeast for the approach of a train could see for a distance of 75 or 80 feet only, and that the sharp curve in the cut prevented further sight. He said he could see to the cut but could not see into it. Although he put the distance one could see from the crossing at 75 to 80 feet, yet plaintiff's evidence shows that the cut from its deepest point gets shallower as it comes toward the crossing and finally ceases entirely, and at the above-mentioned point of 10 rods from the crossing the cut was only 3 feet deep.

As heretofore stated, the train that struck the automobile was backing from the northeast and coming toward Keosauqua, and was the train plaintiff and his brother had seen at or near the depot in Mt. Zion.

The automobile came southwest along the road between the second and third crossings at a speed of 12 or 15 miles per hour according to plaintiff's brother, and at a speed of 15 or 20 miles per hour according to plaintiff himself. As they came along this road, plaintiff's brother says he looked for a train four or five times but saw and heard nothing; that before reaching the turn in the road, and when they were back about 30 rods from the crossing, they saw an automobile coming from the opposite direction and realized that, at the speed they were going, the two automobiles would meet about on the crossing. Plaintiff's automobile, therefore, slowed down. After the other vehicle crossed the railroad, plaintiff's automobile moved up. Plaintiff's brother at first said the last time he looked back up the track to see if a train was coming was when they were 30 rods from the crossing, but he afterwards said that just before they went upon the railway tracks they slowed down, stopped, and looked when they were at a point 12 or 15 feet back from the track. He further said that he looked as far around the curve as he could see, a distance of 75 or 80 feet, and no train was in sight, nor could he hear any; that the automobile started up, and when it entered upon the track it was going about 5 miles per hour, and when the front wheels of the automobile were over the first rail he saw the back end of the coach or train backing toward them from the direction of Mt. Zion; that when he saw the train it was "right onto me" about 10 feet away. Plaintiff applied more power, and the brother says he felt the automobile jump to perhaps 12 or 15 miles per hour, and the vehicle bad just about cleared the crossing when the step of the coach struck the tank on the rear of the automobile, which projected out behind, throwing the automobile around against the train and into the ditch, doing the injury and damage sued for. The train consisted of two passenger coaches, a mail or express car, a tender and the engine; and when the train stopped, the engine was on the crossing. Plaintiff's brother said the train came very quickly, and he thought it was going 25 or 30 miles an hour.

On cross-examination he said the county road between the second and third crossings from Mt. Zion ran pretty close to the railway track, and that at the point 30 rods back from the crossing he could look back along the midway track and see clear to and perhaps a little beyond the second crossing; that he looked back to the second crossing from the above point, i. e. 30 rods from the third or collision crossing, but saw no train and heard none; that the next time he looked was when they had stopped 12 or 15 feet from the crossing in, and there was no train in sight and none was heard; that prior to this when they saw' the other automobile coming they had slowed down, and they then "just crawled up" to the point 12 or 15 feet from the track where they hooked and then started across the track, and when the automobile got upon it the train was "right there" approximately 10 feet away.

Plaintiff testified that he, too, looked and listened for a train when he was 30 rods back from the crossing, but neither saw nor heard any; that when he got near the crossing he saw the other automobile and slowed down, and by the time the other automobile had come over the crossing and had gotten out of the way, plaintiff, going slowly, had reached a point "about probably 15 feet of the track" when he stopped and looked both ways and listened for a train; that he could see along the track for 80 or 00 feet, but could not see any further because of the curve; that he did not see any train nor did he hear any; that he then started toward the crossing, and when the front wheels of his automobile reached the first track he was going 5 or 6 miles per hour; that when he saw the train it was 30 or 40 feet away, "I couldn't say positively," backing toward the crossing and "coming out of the curve"; that he immediately gave his machine all the gas he could, and was going at a speed of 10 or 12 miles per hour when the step on the coach struck the cap over the opening where the gasoline is put in (which cap sticks out about 6 or 8 inches behind the automobile), and the latter was thrown around against the train and then into the ditch.

On cross-examination he testified that at the point 30 rods from the crossing he looked back and could see to the second crossing; that he looked three or four times between that point and the point where he stopped; that he was about 10 rods from the crossing when he saw the other automobile, and he slowed down his car until the automobile he was about to meet had passed, and then he got 15 feet from the crossing and stopped, and at that time his vehicle was on the slight incline leading up to the crossing; that he stopped there just long enough to look both ways and listen (his brother said "an instant"); that he saw no train, and started up, putting his automobile into first and then into third gear, and that his front wheels were on the track when he looked along the track; that at that time he did not have to look very far, "because the end of the car was just right up pretty close." It seemed to him it was not over 30 or 40 feet away. "I couldn't tell; it just seemed that way." When reminded that his brother had said it was 10 feet away, he said, "it was further than that."

Plaintiff and his brother both admitted having signed written statements a...