Reid v. Schaff

• Decision Date: 03 March 1919
• Docket Number: No. 13076.,13076.
• Citation: 210 S.W. 85
• Parties: REID v. SCHAFF.
• Court: Missouri Court of Appeals

210 S.W. 85

REID v. SCHAFF.

No. 13076.

Kansas City Court of Appeals. Missouri.

March 3, 1919.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

Action by William M. Reid against Charles E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company, and another. Judgment for plaintiff, and defendant receiver appeals. Affirmed.

Harris & Price, of Columbia, and J. W. Jamison, of St. Louis, for appellant.

N. T. Gentry, of Columbia, for respondent.

TRIMBLE, J.

Plaintiff, while driving a team of mules hitched to an empty farm wagon, in which he stood as he drove, was struck and injured at a public crossing by a swiftly moving passenger train. He brought suit for damages, alleging a failure to give the required statutory signals. A verdict and judgment for $2,500 was obtained, and the defendant has appealed.

The suit was against the receiver of the Missouri, Kansas & Texas Railway Company and Mark Dewitt individually — the petition charging that the latter "was employed by the defendant receiver as locomotive engineer, and that as such employé the defendant receiver invested him with authority to run, control, operate, and manage trains and engines belonging to and being used by the defendant receiver over said line of railroad; that on the 26th day of December, 1917, the defendant Dewitt, as engineer, had, charge of, ran, operated, and controlled the movements of a train and engine which struck and injured the plaintiff, as hereinafter stated and set forth, and was then and there in the employ of the defendant receiver, and acting within the line and scope of the power and authority conferred upon him by the defendant receiver." The receiver's answer was a general denial, coupled with a plea of contributory negligence. Dewitt's was a general denial.

At the close of plaintiff's case in chief, the defendant Dewitt demurred, and, there being no evidence that he was engineer of the train that struck plaintiff, his demurrer was sustained, whereupon plaintiff dismissed as to him. It was disclosed that one Williams, and not Dewitt, was the engineer in charge of the train that struck plaintiff. The demurrer of the receiver was overruled, and the case was sent to the jury. Plaintiff obtained a verdict and judgment for $2,500, and the receiver has appealed.

In addition to alleging that Dewitt was the engineer in charge of the train as above stated, the petition charged that on the 26th day of December, 1917, the defendants, "while running certain cars and a locomotive, caused the same to pass over said public road crossing * * * without ringing the bell of said locomotive, and without sounding the whistle thereon, at a point 80 rods before reaching said crossing, and without ringing said bell continuously until said crossing was passed by said locomotive, and without sounding said steam whistle at intervals until said crossing was passed; * * * that while so driving on and over said railroad track at said public crossing, and without fault or negligence on his part, the plaintiff was struck by a locomotive engine and cars operated on said track by the defendants."

The injury occurred at what is known as the Geising crossing, on the Jefferson City public road, and it had been a public crossing for at least 25 years. The railroad runs east and west. A very short distance north of the railroad, the county road coming from the east meets another road coming from the west, and the two, merging into one, turn south and proceed to and across the railroad at right angles to it. The portion of the merged road between the meeting or turning point of the two roads and the crossing, or, in other words, that portion of the county road lying north of and next to the crossing, is practically level, and is on the same plane of altitude as the crossing itself; but immediately on the south side of the crossing the county road begins the descent of a sharp grade for some little distance south of the railroad.

Plaintiff lived on his farm northeast of the crossing, and on the morning of the day in question he was going in his wagon to a farm he had south of the railroad. He proceeded west along the road on the north side of the railroad till the merging point of the two roads was reached, and then turned south on his way to the crossing. Two grown sons were following a short distance behind the wagon, having chosen to walk in order to keep warm. At some point in the level portion of the road between the turn in the roads and the crossing, the plaintiff stopped his wagon and looked and listened for a train. On the north side of the track, and to the west of this level piece of road, the view is obstructed by a sharp curve in the track, by a bluff, and by some timber and bushes that extend down to the road and to the right of way of the railroad. Hearing no train, the plaintiff drove on toward and upon the crossing. When plaintiff got on the track, he suddenly saw the train bearing down upon him, and began slapping the mules with the lines to get out of the way. The mules became frightened, however, and with characteristic mulishness "just squatted down" when the hind wheels of the wagon were still on the track. The engine struck the wagon, demolishing it, and hurling plaintiff some distance against a fence, with such violence as to break it down. Plaintiff's injuries do not seem to be in dispute.

Defendant entertains the view that plaintiff's own evidence is such that we are justified in saying, as a matter of law, that his own negligence contributed to, or helped bring about, his injury. A careful study of the record convinces us that we are not warranted in so holding. The contention rests upon the assumption that certain distances were absolutely fixed and conclusively established, that only one conclusion can be drawn from plaintiff's evidence, and that only from certain statements contained therein. Defendant put in evidence tending to show that at 30 or 40 feet from the crossing the view of the track to the west was so obstructed that one could not see any distance at all; that at 25 feet from the crossing one could see 176 feet down the track, at 15 feet from the crossing one could see 196 feet down the railroad, and at 10 feet from the crossing one could see 210 feet down the track and observe an approaching train. On the assumption that this evidence is conclusively established and must be accepted, defendant rests the contention that plaintiff stopped his wagon and looked and listened for trains at a point 35 or 40 feet north of the crossing, where he could not see, and then drove onto the crossing without giving further heed, until he saw and heard the engine bearing down close upon him. Doubtless, if these matters were established beyond dispute, the plaintiff should be declared to be guilty of contributory negligence as a matter of law. Shore v. Dunham, 178 S. W. 900; Owens v. St. Louis, etc., R. Co., 188 Mo. App. 450, 174 S. W. 116; Landrum v. St. Louis, etc., R. Co., 178 S. W. 273; Collett v. Kuhlman, 243 Mo. 585, 591, 147 S. W. 965. But we cannot say they were established with such exact and conclusive precision as enables us to say that no other view can be taken of the evidence, except the one defendant takes.

In the first place, the evidence in plaintiff's favor was to the effect that, even at the distance of 15 or 20 feet from the track, there were things, such as shrubbery, trees, brush, and higher ground, to obstruct the view of an approaching engine. Defendant's surveyor admitted these things were there, but asserted that nevertheless a man could be seen down the track for the distances hereinabove stated. But plaintiff testified that when "within a few feet of the track" one could get a pretty good view down the track — i. e., east of the crossing — but that up the track, or west of the crossing, "you can't see no distance much," and other testimony in plaintiff's favor was that, If a traveler stopped his team anywhere in the clear north of the track, he could not see very far, and the photographs in evidence tend to bear out this trend of the testimony. There is also other "evidence tending to show that, even when one is squarely on the track, the distance one can see down it is not so far as defendant's measurements make it. In the next place, although plaintiff, in estimating the distance from the crossing at which he stopped and looked and listened for a train, placed it at 35 or 40 feet, yet he showed throughout that he did not know how far it was. When first asked about it, he said he stopped on the level place "just...