Norton v. Davis

• Decision Date: 26 May 1924
• Docket Number: No. 14101.,14101.
• Citation: 265 S.W. 107
• Parties: NORTON v. DAVIS, Agent.
• Court: Missouri Court of Appeals

265 S.W. 107

NORTON v. DAVIS, Agent.

No. 14101.

Kansas City Court of Appeals. Missouri.

May 26, 1924.

Rehearing Denied October 9, 1924.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

"Not to be officially published."

Action by Ida M. Norton against James C. Davis, Agent. Judgment for plaintiff, and defendant appeals. Affirmed.

H. J. Nelson and E. M. Spencer, both of Si. Joseph, L. D. Ramsey, of Rockport, and J. G. Trimble, of St. Joseph, for appellant.

W. C. Ellison, of Maryville, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,500, and defendant has appealed.

The main contention of defendant is that plaintiff was guilty of contributory negligence as a matter of law. The facts show that plaintiff was injured about 8 a. m. on June 21, 1919, while driving westward in an automobile which was struck by a southbound train of the defendant where its tracks cross a public road. The automobile in which plaintiff was riding belonged to her husband, and the damages to it were recovered by him. See Norton v. Hines, 211 Mo. App. 438, 254 S. W. 346. At the point of collision the wagon road runs east and west, and the railroad north and south. Plaintiff had resided on a farm adjoining the right of way of the railroad at the point in question for about 16 years, and was thoroughly familiar with the crossing, having driven over it many times. She left her home, a little over 100 yards distant from the crossing, in the automobile shortly prior to the collision, and after starting proceeded westward upon the road at the rate of 15 miles per hour. This speed was not slackened until after she saw the train coming. The approach to the crossing was down hill until she reached about 75 feet east of the east line of the railroad right of way. From this point across the railroad tracks the road was level and dry. The day in question was clear.

The railroad right of way was 100 feet wide; the single track being located in the center thereof. Plaintiff's view of the railroad to the north was obstructed by reason of an orchard, and then by tall vegetable growth of various kinds on the north side of the road, which extended to the fence along the east line of the railroad right of way. There was a fence post at the junction of the fence along the north side of the road with the right of way fence of the railroad, and the obstruction extended to this post. This entirely shift off plaintiff's view of any possible approaching train until she reached a point 11 feet east of the corner fence post, where her counsel admits she could by looking around the outer edge thereof see a point on the railroad track 150 feet north of the crossing. Her vision continued to widen from this point until she arrived at the end of the obstruction, where she could see the track for several hundred feet north. Plaintiff was thoroughly acquainted with the time that trains were due at this crossing. She had not heard the passenger train go by that struck her automobile. It was a few minutes late, and plaintiff testified that she thought it had not passed. No signal of any kind was given by those in charge of the train. The case was submitted by plaintiff upon the crossing case theory or the primary negligence of defendant in failing to give the statutory signals. Plaintiff testified that in approaching the place where her view was unobstructed she looked and listened for the approach of a train, was unable to see whether one was or was not approaching, but continued to listen for a train and heard none.

The grade of the railroad was somewhat downward toward the south. A train going down such a grade does not make as much noise as one running up hill or on level ground. Plaintiff knew this. Continually looking and listening for a train she approached the east right of way of the railroad, and when she arrived at the post she saw for the first time the train approaching. She testified ghat she did not know how far the train was away at that time. She stated, "Well, I didn't know, I expect about 100 feet." When she saw the train she said, "It pretty nearly scared me to death. I was just frightened, I didn't know what to do. I was trying to find my brakes." She was unable to find the brakes at once, and when she did find them the marks of the tires on the road showed that she stopped the car within 12 feet. The automobile stopped about 1½ feet from the east railroad track an instant before the train struck it at its right front wheel. Plaintiff's confusion after she saw the train was also testified to by a passenger upon the train, who stated that he himself was much frightened and excited when he saw the impending collision, and that he saw actions on the part of plaintiff which indicated confusion on her part. From the front of the automobile to the center of the rear wheels was about 11 feet 10 inches. The front end was 7 feet ahead of the eyes of the driver sitting in the seat. The automobile was in good working condition, and plaintiff was an experienced driver. The train was running about 35 miles per hour.

As plaintiff could hate stopped her automobile under the circumstances in 12 feet, she admits in her brief that she had ample time to stop it and avoid the collision after she saw the train, if it had not been for her fright and confusion produced by the unexpected and rapid approach of the train at the time she emerged from behind the obstruction. The case was therefore submitted by plaintiff upon the theory that she was not guilty of contributory negligence, if the negligence of the defendant in running its train near to the crossing without warning was calculated to reasonably cause and did cause plaintiff to become so frightened and confused that she was unable to stop the automobile with intelligent effort and reasonable care on her part.

In discussing the matter of plaintiff's contributory negligence defendant has picked out disconnected statements made by her while she was on the witness stand, which defendant claims show that she was grossly negligent, and it will be necessary for us to discuss these. For instance, she testified in answer to a question by defendant's counsel, "You loolced up at the time—about the time you passed the right of way line? (Italics ours.) A. At the east right of way line." This question was repeated in a different way, except the words "looked up" were used two or three times, and plaintiff's answer was substantially the same each time. Defendant now makes much of the fact that she testified that she looked up at this time. Plaintiff's counsel at the trial, seeing the point, when he took the witness asked her:

"Q. Where were you looking when you first saw the train? A. Well, I was looking at my car.

"Q. Well, how could you see the train when you were looking at the car? Now, you know what I mean when I say—if you don't, why wait until you get a clear idea? A. No, I don't understand just what you mean, "Q. I want to know if, when your eyes got in view of the railroad right of way and the railroad track, whether you were looking away south or looking down or asleep, or whether you was looking out for the train? A. I was looking out for the train.

"Q. That is all I wanted to know. He asked you, or assumed that, you were looking down, and that there is where you first looked up. A. I looked up at the train.

"Q. He assumed that you were looking down, and there is where you first looked up, is that so? A. Where I looked up—

"Q. Well, I will put it in this way: When your eyes first got even with that line—do you know what line I am talking about? A. The east line.

"Q. Now, when you were moving west over that line, and your eyes first got even with that east line of the right of way, were you nodding and asleep or were you awake? A. I was awake."

"Q. Were you looking down at the bottom of the car or were you looking sideways to see if a train was coming? A. Well, I was just—

"Mr. Trimble: Let her answer the question. A. Well, I was just driving along there looking—

"Q. I didn't ask you about driving. Were you looking down? You say, `No.' Were you looking for the train or were you looking at the bottom of the car? A. Well, I was looking for the train.

"Q. Well, that is all I wanted to know. You had not been looking down, and looked up? A. No, I had been looking up for the train as I came down.

"Q. For how far back? A. Well, a ways back." (Italics ours.)

Defendant contends that plaintiff's testimony shows that, while she could have seen up the track when she reached a point 11 feet from the right of way line, when she reached that point she was looking at her car and then looked up and saw the train; in other words, that plaintiff was not intently looking for the train, and was therefore guilty of contributory negligence. Plaintiff throughout her testimony reiterated that she was looking at all times for a train. It is apparent from reading her testimony that when she said she was looking at her car when she first saw the train that she misunderstood the question asked her, and, in fact, she so stated. As for her testimony that she was looking up at the point in question it is quite evident that she meant she was looking up toward the north, because the evidence shows that it was up hill in that direction. This is fully shown by her answer where she said, "I had been looking up for the train as I came down." The testimony that she loked at her car when she first saw the train, if given the construction that defendant contends for, was absolutely contrary to her statement repeated time and again that she was looking for the train all of the time. The only reasonable interpretation to be given her answer, "Well; I was looking at my car," in answer to the question, "Where were you looking when you first saw the train?" is that she misunderstood the question as she stated, and meant that upon the...