Nunn v. St. Louis & H. R. Co.

Decision Date08 January 1924
Docket NumberNo. 17843.,17843.
CourtMissouri Court of Appeals
PartiesNUNN v. ST. LOUIS & H. R. CO.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

"Not to be officially published."

Action by Mary E. Nunn against the St. Louis & Hannibal Railroad Company. Judgment for plaintiff, "and defendant appeals. Reversed.

Clarence A. Barnes and Frank Hollings-worth, both of Mexico, Mo., and Hostetter & Haley, of Bowling Green, for appellant

Tom B. McGinnis, of Bowling Green, Rodgers & Buffington, of Mexico, Mo., and Pearson & Pearson, of Louisiana, Mo., for respondent.

BRUERE, C.

This is a suit for damages for personal injuries received by plaintiff in a collision on a public crossing, between defendant's train and an automobile driven by plaintiff. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff, and defendant has appealed.

The negligence alleged in the petition is running said train at a speed in excess of five miles per hour, in violation of an ordinance of the city of Bowling Green, and failing to sound the bell or give warning of the train's approach before it struck the automobile.

The answer contains a general denial and further pleads that plaintiff negligently failed to look and listen or watch for and observe the approaching train, and gnat she negligently failed to stop her automobile while she was in a place of safety, but negligently drove the same in front of defendant's train, and that such negligent acts of plaintiff caused the collision.

At the close of all the evidence in the case the defendant interposed a demurrer to it which the court overruled, proper exceptions being taken at the time.

The serious question raised by the appeal is whether or not the trial court should lave directed a verdict in favor of the defendant, on the ground that the plaintiff was guilty of contributory negligence precluding her right to recover.

The facts in the case, bearing on the question raised, are these: The collision occurred on a bright day at 3 o'clock on the afternoon of August 30, 1920, at the crossing of defendant's railroad track over Court street in the city of Bowling Green, Mo. Said street runs north and south and is intersected by defendant's railroad track, which runs diagonally from the northwest to the southeast. The crossing is about 8 feet above the natural level of Court street, on either side. Commencing at a point 126 feet south of the crossing, the traveled portion of said street gradually rises until the crossing is reached. About the same condition prevails north of the crossing on Court street. Said street is 50 feet wide. The right of way of said railroad is 100 feet wide and the railroad track is located in the center thereof. On the west side of the track and 1120 feet west of the crossing is located defendant's station or depot. There is a slight downgrade from the station to the crossing. At the time of the collision a maple tree, 10 inches in diameter, stood just north of the south line of defendant's right of way and a few feet west of the west line of Court street and 48 feet distant from the center of the track.

The plaintiff at the time of the accident was 29 years old and lived three or four blocks south of the crossing on Court street. She was familiar with the crossing and used it daily in traveling from her home to Bowling Green.

On the day of the accident she drove a Ford roadster along Court street north on her way from her home to Bowling Green, Charline Bennett, a child seven years old, was sitting with her in the front seat of the machine. She approached the crossing without stopping, and as she drove upon the track the front part of the automobile was struck Joy defendant's freight train, consisting of the engine and 13 cars, running east on said track, and plaintiff was thrown out of the auto and severely injured.

On the part of the plaintiff the testimony tended to show that the freight train was running between 15 and 18 miles an hour, in violation of the ordinance of the city of Bowling Green, limiting the speed of trains within said city to 5 miles an hour, and that the locomotive bell was not sounded.

J. D. Beauchamp, county surveyor of Audrain county, testified that he made a plat of the crossing and took the measurements heretofore given. He testified that the maple tree obstructed a view of the railroad track to the northwest to a traveler on Court street, approaching the crossing, from the south, until he reached a point 10 feet inside the right of way; that from that point he had an unobstructed view of the track toward the northwest for 100 feet; and that when he reached a point 30 feet from the rails, and at any point between that and the rails, he had an unobstructed view of the track toward the northwest as far as the depot, 1120 feet from the crossing.

J. E. Scott, assistant county surveyor of Audrain county, testified for the plaintiff that a person traveling in an automobile, and at a point in Court street 40 or 50 feet south of the crossing, had an unobstructed view of the track toward the northwest for a distance of 150 feet, and that when he reached a point 30 feet from the track he had a clear view up the track toward the northwest as far as the elevator, which is located a little bit south of the depot.

Bert Kleppisch testified for plaintiff that he was two blocks north of the crossing when he saw the automobile just when it and the train collided; that the front wheels of the automobile were over the track; and that the locomotive struck it under the steering wheel.

Arch Nunn, plaintiff's husband, testified that, under the conditions existing at the crossing at the time of the accident, there was a view of the track, from Court street, toward the northwest as far as the station was unobstructed from any point within 25 or 30 feet south of the track.

Plaintiff testified that, because of the injury received in the accident, she did not remember anything that happened on the 30th day of August, 1920, the day of the accident; that all recollection of events occurring at the time of the collision and prior to the evening of the 29th day of August, 1920, had been totally effaced from her mind.

At the trial of this cause, which took place on the 30th day of September, 1921, Charline Bennett, the child who was riding with the plaintiff at the time of the accident, was called as a witness by the defendant. After satisfying the trial court that she was qualified to be sworn as a witness, she testified, on direct examination, in substance, that she was in the automobile with the plaintiff at the time of the collision; that when they got near the railroad track she saw the train coming and told the plaintiff that "she musn't try to beat the train," and that plaintiff made no reply to her, but went on ahead. The child began to cry and became somewhat confused while on the stand and on cross-examination testified:

"Q. Wait a minute. I am going to be just as nice to you as Mr. Haley was, Charline. Now, which do you mean, that they told you what to say, or that you told them what you was going to say, or do you not remember anything about it? A. I told them.

"Q. You told them. Now, when you saw the train, the train was right on you, wasn't it, Honey? A. Yes.

"Q. Right at the crossing, just at it hit the car, that is the first time saw the train, wasn't it? A. Yes."

Mrs. Mary...

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