Potter v. St. Louis-San Francisco Ry. Co.
| Decision Date | 06 July 1927 |
| Docket Number | No. 4262.,4262. |
| Citation | 297 S.W. 159 |
| Parties | POTTER v. ST. LOUIS-SAN FRANCISCO RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.
Action by W. A. Potter against the St. Louis-San Francisco Railway Company. From a judgment sustaining a demurrer to plaintiff's evidence, plaintiff appeals. Affirmed.
Page & Barrett, of Springfield, for appellant.
E. T. Miller, of St. Louis, and Mann & Mann and John W. Miller, all of Springfield, for respondent.
Action for damages for the destruction of an automobile truck at a public highway crossing, caused by a train of defendant striking the truck while it was on the track at the crossing. At the close of plaintiff's evidence, the court sustained a demurrer thereto, and plaintiff appealed.
The only question for our determination is whether or not the court erred in refusing to submit the case to the jury. The accident occurred about one mile west of Bois D'Arc in Greene county, Mo., at a point where highway No. 36 crosses the track of defendant. At this point the highway runs north and south and the railroad track east and west. A short distance east of the crossing the railroad track curves. At the time of the accident the truck of plaintiff was standing on the track at the crossing. Plaintiff had attempted to cross the track with the truck, but in doing so his engine was killed and the truck stopped on the track. The plaintiff then saw the train approaching from the east. He attempted to start the truck, but failed, and then got off and out of the way before the train struck the truck, and in that way he escaped injury, but the truck was completely demolished. The train was a fast passenger train, running 45 to 50 miles per hour, and the case hinges on the question whether the evidence is sufficient to take to the jury the question whether the engineer in charge of the train could, by ordinary care, have discovered the truck in a position of danger in time to have stopped the train before striking the truck. In determining that question, it is the law, and so conceded in this case, that we must give the plaintiff the benefit of every reasonable inference in his favor from all the testimony.
Plaintiff testified that when he first saw the train after his truck stopped on the track the train was about 1,500 feet from the crossing, and that it did not check its speed until about the time it hit the car. He attempted to testify that the brakes on the train were not applied until about the time the engine struck the truck, but, on his cross-examination as to his knowledge of that fact, that testimony was excluded by the court. He also testified that a truck on the crossing could be seen by a person on the track 1,500 feet east of the crossing. Plaintiff placed on the stand the railroad engineer who had charge of the train at the time of the accident, and he testified that, in stopping a train like this one, running 45 to 50 miles per hour the train would move 300 or 400 feet before there would be any appreciable decrease in speed to an observer on the outside; that after the engineer would decide to stop a train of that character going at a rate of 45 to 50 miles per hour it would move about 1,500 feet before it would stop. He also testified that his train stopped in about 600 feet after striking the truck and that when he first saw the truck on the track he thought it was passing over the crossing and would clear the track. At that time he first blew his whistle as a warning and then as soon as he discovered that the truck was stalled on the track and would not pass on he applied the emergency brake as quickly as he could and stopped the train as soon as it was possible to stop. The engineer at one time in his testimony, stated that he was three or four car lengths—195 to 260 feet—from the truck when he first applied' the brakes. He also stated that he thought the train ran approximately 1,500 feet after he began to stop the train until it did stop, and that...
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