Neill v. Alton R. Co.

Decision Date01 March 1938
Docket NumberNo. 24403.,24403.
Citation113 S.W.2d 1073
PartiesNEILL v. ALTON R. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Audrain County; W. C. Hughes, Judge.

"Not to be published in State Reports."

Action for damages for personal injuries sustained in a collision between automobile and passenger train by John Neill against the Alton Railroad Company, a corporation. Judgment for the plaintiff, and defendant appeals.

Reversed and remanded.

A. C. Whitson, of Mexico, and Charles M. Miller, of Kansas City, for appellant.

Hollingsworth & Francis, of Mexico, and Baker & Baker, of Fulton, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff in a collision between the automobile truck which he was driving and a passenger train of defendant, Alton Railroad Company. Tried to a jury in the circuit court of Audrain county, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $1,750. There was an unavailing motion by defendant for a new trial; and, from the judgment entered in conformity with the verdict, defendant's appeal to this court has been perfected in the usual course.

The accident occurred in the city of Mexico, Mo., at the point where Missouri avenue, which runs north and south, is crossed by defendant's main line track, which runs east and west.

Plaintiff was employed at the Missouri Power & Light Company's ice plant in Mexico, which is located on the west side of Missouri avenue, 165 feet south of defendant's main line track. His duty was to deliver ice throughout the city in a half-ton Chevrolet truck, and at the time of the accident he had just left the plant with from 100 to 200 pounds of ice for delivery on the north side of the city.

It appears that as one drives north on Missouri avenue past the ice plant there are five railroad tracks to be crossed, the first three of which belong to the Wabash Railway Company, and the last two to the defendant. The first track, or one farthest to the south, is a switch track which runs immediately adjacent to the ice plant, while the fifth track, or one farthest to the north, is defendant's main line track upon which it was that the accident occurred.

Plaintiff's own evidence disclosed that from the corner of the ice plant, 165 feet south of defendant's main line, the driver of a vehicle going north on Missouri avenue has an unobstructed view to the west for a distance of from an eighth to a quarter of a mile, and that, as he approaches nearer to defendant's main line, the range of his view to the west is correspondingly increased.

Just before noon on the day in question plaintiff drove out from the loading platform on the south side of the ice plant, turned north into Missouri avenue, and started across the series of tracks in second gear at a speed which he estimated as having been between 5 and 10 miles an hour. Other witnesses put his speed at from 10 to 12 miles an hour, but all agreed that he was driving slowly. He testified that as he crossed the tracks he was continually looking in both directions for approaching trains, but did not see the eastbound train which struck him until momentarily before the collision, his excuse being that it was "raining and misty" or "foggy like," with a "small wind" blowing from the west.

The train was running at a speed of 25 or 30 miles an hour, and there was the usual dispute between plaintiff's witnesses and the train crew as to whether the whistle was blown or the bell rung as the train approached the crossing. The collision occurred just as the front wheels of plaintiff's truck were midway of the track, the force of the impact being sufficient to cause the truck to be pushed some 50 feet to the east of the crossing, where it rolled over clear of the train and came to rest on the south side of the track. The engineer testified that he did not apply the brakes until the very moment of the accident, with the result that the train was not brought to a stop until it had reached a point from 270 to 300 feet beyond the point of the collision.

While the petition contains certain assignments of primary negligence based upon the alleged failure of defendant to have given a warning by bell or whistle of the train's approach, all such assignments were abandoned by plaintiff in the submission of the case, and the same went to the jury solely upon the theory of defendant's negligence under the humanitarian doctrine in failing "to have stopped said train and prevented a collision" after the engineer knew or should have known that plaintiff was in a position of imminent peril from the approach of the train and was oblivious to his danger.

The chief point at issue on this appeal is that of the sufficiency of the evidence to have warranted the submission of the case upon such theory by plaintiff's principal instruction No. 2.

It is to be observed that as the case was submitted by plaintiff there was no issue raised as to whether the accident might have been averted by the slackening of the speed of the train or by the giving of a timely warning of its approach, so that the question for our consideration is narrowed down to that of whether there was evidence adduced from which the jury might have legitimately found that plaintiff's truck entered the danger zone at a time when the approaching train was still sufficiently far enough back of the point of collision to have enabled the engineer, in the exercise of due care, "to have stopped said train and prevented a collision."

Now the danger zone, within the contemplation of the humanitarian doctrine, is a zone whose limits vary with the facts of each particular case, and is reached at the moment that the plaintiff approaches so near the ultimate point of the collision, and under such circumstances, that it is or should be reasonably apparent to the defendant or his servants that the plaintiff either cannot or will not stop or change his course before coming into the defendant's path. Kloeckener v. St. Louis Public Service Co., 331 Mo. 396, 53 S.W.2d 1043; Hinds v. Chicago, B. & Q. R. Co., Mo.App., 85 S.W.2d 165; Scott v. Terminal R. Ass'n of St. Louis, Mo. App., 86 S.W.2d 116; Kent v. Kiel, Mo. App., 97 S.W.2d 885.

...

To continue reading

Request your trial
12 cases
  • Flint v. Chicago, B. & Q. R. Co.
    • United States
    • Missouri Supreme Court
    • 8 d1 Dezembro d1 1947
    ...the danger zone. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Trower v. M.-K.-T.R. Co., 353 Mo. 757, 184 S.W.2d 428; Neill v. Alton R. Co., 113 S.W.2d 1073. The truck entered the danger zone: either when it started up the incline towards the track after it stopped or almost stopped about ......
  • Wolverton v. Kurn
    • United States
    • Missouri Supreme Court
    • 30 d4 Outubro d4 1941
    ... ... Rollison v. Railroad, 252 Mo. 525; Dyrcz v ... Railroad, 238 Mo. 33; Betz v. Railroad, 253 ... S.W. 1089; Keele v. Railroad, 258 Mo. 62; Neill ... v. Railroad, 113 S.W.2d 1073. (2) Therefore, there was a ... total failure of proof that the train could have been stopped ... or its speed ... his testimony that he did not do so. Logan v. C., B. & Q ... Ry., 254 S.W. 704, 300 Mo. 611; Brown v. Alton ... Ry., 132 S.W.2d 714. Where a railway and highway run ... parallel and near together, a traveler upon the latter and ... the servant in charge ... ...
  • Thomasson v. Henwood
    • United States
    • Missouri Court of Appeals
    • 14 d6 Dezembro d6 1940
    ... ... before permitting his vehicle to get upon the tracks or ... within reach of the overhang of the train. Neill v. Alton ... Railroad, 113 S.W.2d 1073. (e) Though it may have been ... apparent to the train operatives that the driver of ... plaintiff's truck ... ...
  • Diel v. St. Louis Public Service Co.
    • United States
    • Missouri Court of Appeals
    • 19 d2 Fevereiro d2 1946
    ... ... Thompson (Mo. App.), ... 167 S.W.2d 105, 113, 114; Bresler v. Kansas City P. S ... Co. (Mo. App.), 186 S.W.2d 524, 529; Neill v. Alton ... R. R. Co. (Mo. App.), 113 S.W.2d 1073; Farris v ... Thompson, 168 S.W.2d 439, 444; Pentecost v. St ... Louis Merchants' Bridge ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT