Nichols v. Chicago & A. R. Co.

• Decision Date: 30 April 1923
• Docket Number: No. 14496.,14496.
• Citation: 250 S.W. 627
• Court: Missouri Court of Appeals
• Parties: NICHOLS v. CHICAGO & A. R. CO.

250 S.W. 627

NICHOLS v. CHICAGO & A. R. CO.

No. 14496.

Kansas City Court of Appeals. Missouri.

April 30, 1923.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

"Not to be officially published."

Action by G. M. Nichols against the Chicago & Alton Railroad Company. Judgment for plaintiff, and defendant appeals.. Reversed.

Willard P. Cave, of Moberly, and Charles M. Miller, of Kansas City, for appellant.

Redick O'Bryan and A. R. Hammett, both of Moberly, for respondent.

TRIMBLE, P. J.

Plaintiff, a physician, in his automobile being driven by his chauffeur, was going east over a public crossing on the defendant's railway in Higbee, a city of the fourth class, when a train consisting of an engine and six cars, approaching from the north, struck and injured his said automobile, for the damages to which, amounting to $400, this suit was brought.

The petition pleaded a city ordinance limiting the speed of engines and trains to 15 miles per hour and requiring the bell to be rung for 40 rods before passing over any public crossing in said city; and alleged that while plaintiff was passing over said crossing, at a slow rate of speed and in the exercise of due care, the defendant's engine and cars negligently approached and passed over said crossing at a greater speed than 15 miles per hour and, in doing so, the operatives thereof negligently failed to ring the bell.

The answer was a general denial coupled with a plea of contributory negligence. At the close of plaintiff's evidence in chief, the defendant offered a demurrer which the court overruled; also, at the close of all the evidence in the case, defendant again demurred and was again overruled. The jury returned a verdict for plaintiff in the sum of 4225, and defendant has appealed. No briefs have been filed by respondent.

The crossing is in the northwestern part of the city of Higbee, and the collision thereon occurred about 20 minutes past 11 o'clock on the morning of November 23, 1920, a clear day, with nothing in the climatic or weather conditions to interfere with the vision of the occupants of the automobile as they approached the crossing.

As stated, said automobile was going east toward the crossing. There were three tracks to be encountered, the first a switch or side track of the defendant railway on which the collision occurred, and a very short distance beyond it were two other tracks of the Missouri, Kansas & Texas Railway. The view to the north of the street plaintiff was on, as he approached the crossing, and to the west of the railway, was somewhat obstructed by a picket fence running north along the west line of the railroad right of way, and also by a garage located a short distance north of the street and just outside of or west of the picket fence. However, this picket fence was from 25 to 32 feet west of the first track encountered, and consequently from the time plaintiff reached a point 32 to 25 feet west of and distant from the crossing, there was a clear view of the track for a considerable distance to the north of the crossing.

The automobile approached this crossing and went upon it without stopping, going at a speed of from 10 to 12 miles per hour. Plaintiff was on the south or right-hand side of the automobile, and his chauffeur was on the left or north side in the same seat with plaintiff. The latter says he had known the crossing for 27 or 28 years and had passed over it "thousands of times."

On cross-examination plaintiff testified as follows:

"Q. Didn't you give a statement to the railroad that you were looking out at the Missouri, Kansas & Texas main line, and did pot think to look for an engine down this side track? A. Yes, I told him I was looking up and down the Katy line because the Chicago & Alton always give signal.

"Q. So then you didn't look up for a train on the switch track at all? A. Yes, I did myself. When I looked it wasn't very far from us.

"Q. How far were you from the side track when you looked? A. Pretty close.

"Q. Within two or three feet of it? A. I couldn't say.

"Q. Well, approximately? A. Something, I suppose, like that.

"A. How far away was that locomotive engine when you looked? A. Looked to me like it wasn't very far. * * * "Q. The locomotive engine was 15 to 20 feet of the crossing when you first looked up the side track? A. Yes, sir.

"Q. And your front wheels then must have been pretty close to the west rail of this side track—within a couple of feet? A. No, I hardly that close.

"Q. How close? A. I couldn't say.

"Q. Approximately. A. I don't know the exact number of feet. It was very close—I know there was no time for stopping the automobile.

"Q. At that time you were going at a speed of 10 or 12 miles an hour? A. Something like that.

"Q. And the only thing to do then was to try to get across? A. It looked that way to me

"Q. Did you see the locomotive as soon as the chauffeur, Mr. Magruder, did? A. I couldn't say that I did.

"Q. Your idea would be that you both saw it about the same time? A. Yes, sir.

"Q. And then he made an effort to get across? A. Yes, sir,

"Q. And your judgment as to distance of the engine would be that it was about 15 or 20 feet from the crossing? A. Something like that."

Plaintiff testified that the engine was going 15 or 20 miles per hour, as did also his chauffeur. Lambier, a witness for plaintiff, said the train was going 12 or 15 miles per hour and the automobile was going about the same speed as the train. The chauffeur also testified that the automobile was something like 6 or 8 feet of the west track when he first saw the train, and the train was then 10 to 15 feet from the crossing; that the automobile was going so fast they could not stop, so that he thought It best to try to beat the train over the crossing sale did not quite succeed in doing so, however, and the engine struck the rear hub of the automobile, throwing it around about 10 or 15 feet; but the chauffeur ran the automobile under its own power down to the garage...