Nicholson v. Missouri Pac. R. Co.

• Decision Date: 13 August 1927
• Docket Number: No. 4181.,4181.
• Citation: 297 S.W. 996
• Parties: NICHOLSON v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

297 S.W. 996

NICHOLSON v. MISSOURI PAC. R. CO.

No. 4181.

Springfield Court of Appeals, Missouri.

August 13, 1927.

Rehearing Denied September 22, 1927.

Appeal from Circuit Court, Ripley County; Chas. L. Ferguson, Judge.

Action by Maud Trout Nicholson against the Missouri Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

James F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.

Cope & Tedrick and Hammons & Tedrick, all of Poplar Bluff, for respondent.

COX, P. J.

Action for damages resulting from a collision between plaintiff's automobile and a car of defendant at a street crossing in the city of Poplar Bluff. Plaintiff recovered, and defendant appealed.

Henderson avenue is a public street in the city of Poplar Bluff on which there is considerable travel. The street runs practically east and west, and crosses the Missouri Pacific Railroad tracks almost at right angles. At this crossing there are several tracks of defendant running north and south, and much switching is done at that place. The defendant maintains gates at each end of the street crossing. On December 20, 1924, plaintiff was driving her automobile east on Henderson avenue with three other persons with her in the car. Between 8:30 and 9 p. m., she reached the crossing of defendant's tracks. The gates were up, and just before reaching the gates she stopped her automobile, and, looking both ways saw only an engine which was quite a distance up the track to the north toward the depot. She then proceeded to cross the tracks of defendant. There were, according to some witnesses, eight or nine of these tracks, and, according to other witnesses, ten or eleven. She passed about two-thirds of the way over when a loose freight car which had been "kicked" toward the crossing from the north struck her automobile and pushed it about 75 feet to the south until it reached a frog in the rails and there it was demolished and plaintiff slightly injured. Plaintiff did not see the freight car of defendant until it struck the automobile. It was a dark night and drizzling rain. There were two street lights at one end of this crossing and one light at the other end. When plaintiff looked before starting across the tracks of defendant, she could see across the crossing, but did not see any one on the crossing. The parties with plaintiff in the automobile did not see the car that struck it until at or about the time it struck them. One of these parties testified that he looked both ways but saw no cars except some down south of the crossing on a switch track. The plaintiff and the other occupants of the automobile who testified, stated that they did not see any one there to give warning that the freight car was coming, nor did they hear any sound until after the collision, when one witness stated he heard Bill Knight holler, and, from the sound of his voice he was north of the crossing. Mr. Knight is a switchman, and defendant's evidence tends to show that he was there to give warning and did give it by swinging his lantern and hallooing. Plaintiff's evidence also tends to show that the light of the automobile was thrown ahead and not to the side.

One assignment of error is that the court erred in not sustaining a demurrer to the testimony. The case was tried on the theory that it was the duty of plaintiff to exercise the highest degree of care for her own safety, and that is conceded to be correct. In determining whether a demurrer to the evidence should have been sustained, we must disregard defendant's evidence unless it be favorable to plaintiff and give the plaintiff the benefit of every reasonable inference that can be drawn from her evidence. Guided by this rule, we may say that the following facts are established: It was a dark night, and a drizzling rain was falling. This would shorten the range of a person's vision and make the discovery of an object more difficult than if the night were light and the atmosphere clear. There was switching done by defendant over this crossing, and it maintained gates there which, of course, it let down and closed the street when switching was to be done across it, and lifted the gates when the track was clear for the passage of travelers on the street over the tracks of defendant. Plaintiff approached this crossing in an automobile and found the gates up. She also stopped her car and looked both ways and ahead over the crossing and saw no trains or cars and saw no person on the crossing. She saw an engine some distance up the track to the north, but did not see the coal car that afterwards struck her automobile. She then proceeded to cross, and the fair inference is that she did not look any more to see if there were cars moving toward the crossing upon the tracks of defendant. There were two electric lights at the side of the street at one end of the crossing and one light at the other end. We think the above a fair outline of the pertinent facts shown by the testimony of the plaintiff.

Appellant insists that, since plaintiff's evidence shows there were lights there and that plaintiff in fact saw an engine on d...