Morrow v. Hines

• Decision Date: 18 June 1921
• Docket Number: No. 2799.,2799.
• Citation: 233 S.W. 493
• Parties: MORROW v. HINES, Director General of Railroads.
• Court: Missouri Court of Appeals

233 S.W. 493

MORROW v. HINES, Director General of Railroads.

No. 2799.

Springfield Court of Appeals. Missouri.

June 18, 1921.

Rehearing Denied August 9, 1921.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by, D. C. Morrow against Walker D. Hines, Director General of Railroads, in charge of the St. Louis & San Francisco Railway Company. Verdict for plaintiff. From an order granting a motion for a new trial, defendant appeals. Reversed and remanded, with directions.

W. F. Evans, of St. Louis, and Ward & Reeves, of Caruthersville for appellant.

Smith & Seed, of Kennett, for respondent.

COX, P. Z.

Plaintiff brought suit for damages to an automobile, which was struck at a public crossing on a switch track of the Frisco Railroad at Campbell, Mo. Verdict for defendant; motion for new trial filed by plaintiff and sustained on the ground that the court had committed error in giving instructions 6 and 7 on the part of defendant, and defendant has appealed.

We have examined these instructions in the light of the evidence in the case, and think they were erroneous, and the action of the trial court in sustaining the motion for new trial on that ground was correct, unless it further appears that under the evidence plaintiff could not recover, and hence he was not injured by the error.

Appellant insists that the plaintiff's own evidence shows that his agent, who was driving the automobile at the time of " the collision, was guilty of contributory negligence as a matter of law, and a verdict for defendant should have been directed.

The negligence alleged is that defendant backed a train over a public crossing before daylight without ringing a bell or sounding a whistle, or without any light or signal of any kind on the rear of the cars, and without any one upon the rear of the cars to give a signal of the approaching train. The answer was a general denial and plea of contributory negligence.

Plaintiff testified that he was the owner of the automobile; that it was practically destroyed by a collision with the train of defendant, and was of the value of 3562.50; that at the time of the accident, the car was driven by W. N. Pinkley, who was in his employ.

W. N. Pinkley, who was driving the car, testified that he had started in the car to go from Campbell to Holcomb, where he worked, and that he had been making the same trip three or four times a week for three or four months, and was familiar with the streets and the railroad tracks that he had to cross and the crossing where the accident occurred. He knew that the train which struck the car stood on that switch all night each night, then backed over this crossing in the morning in order to get into proper position to start upon its regular daily run. This accident occurred at about 6 o'clock a. m. on December 9th, and it was dark and raining at the time. The lights of his car were on, and the side curtains were closed, but had isinglass in them so he could sea through them. His eyesight and hearing were both good. That he was not thinking about the train, and did not look and listen as he approached the crossing, but went right along. He could not see very far, and did not see the train until it was within 2 or feet of him, and then he could not do much, and the train struck the automobile and dragged it along for some distance, and entirely demolished it. He escaped by crawling out at the rear, and ran to the engine of the train and signaled the engineer to stop the train. The train had no light on the rear, and, had it had one there, he could have seen it. There was no one on the rear of the train to give warning. He was going very slowly, and heard no whistle or bell. He did not notice any lights in the coaches when he started toward the engine on the train, but did see that the coaches were lighted as he returned. The train was going slow, about four or five miles an hour.

Witnesses for defendant testified that the coaches were lighted, and some of them saw the bulk of the train and heard it when 136 feet away; that...