Robinson v. Chicago, B. & Q. R. Co.

• Decision Date: 04 May 1931
• Docket Number: No. 17141.,17141.
• Citation: 38 S.W.2d 514
• Court: Missouri Court of Appeals
• Parties: ROBINSON v. CHICAGO, B. & Q. R. CO.

38 S.W.2d 514

ROBINSON v. CHICAGO, B. & Q. R. CO.

No. 17141.

Kansas City Court of Appeals. Missouri.

May 4, 1931.

Appeal from Circuit Court, Andrew County; Guy B. Park, Judge.

"Not to be officially published."

Action by V. M. Robinson against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

H. J. Nelson and J. G. Trimble, both of St. Joseph, for appellant.

G. C. Sparks, of Savannah, and Miles Elliott, of St. Joseph, for respondent.

BOYER, C.

Action for damages. Plaintiff sued to recover the value of his automobile. It had skidded from the highway and landed across defendant's tracks in such a manner that plaintiff was unable to remove it, and thereafter it was struck and destroyed by one of defendant's passenger trains. The petition sought recovery upon the humanitarian theory, and the jury was instructed to render a verdict for plaintiff upon a finding of the requisite facts for such a case. The jury found for plaintiff in the sum of $500, judgment was entered, and defendant duly appealed.

Three principal assignments are made and referred to in the brief, viz.: (1) The court erred in refusing defendant's peremptory instructions at the close of all the evidence; (2) the court erred in giving instruction 1 on behalf of plaintiff; and (3) the court erred in refusing to grant a new trial. The foundation of all the points made is that there was insufficient evidence to submit the case to the jury and the defendant was entitled to an instructed verdict.

There is evidence of the following facts: At the place of collision a paved highway crosses three railroad tracks at about right angles. The tracks extend generally in a north and south direction. South of the crossing the highway parallels the west side of the railroad right of way, and north of the crossing it is upon the east side of the tracks. The crossing in question is to carry the highway from one side of the tracks to the opposite side. Defendant owned and operated two of the railway tracks, and on the east side of them another company owned and operated the other track. Defendant's west track carried south-bound trains, and the other the north-bound trains. A concrete slab 18 feet wide is laid in the public highway up to the curve for the crossing, and then the crossing is widened to about 20 feet, and planks are laid between and on the side of the rails which extend 5 or 6 feet beyond the paving.

Plaintiff testified that on Sunday evening June 18, 1929, he was riding alone in his automobile proceeding northward on the highway south of the crossing; that when he reached the curve of the highway to cross the railway tracks he applied the brakes, his car struck some mud or wet soil which had been washed upon the highway, and skidded to the left or northwardly and landed across the first railroad track and north of the crossing. The car was across the east rail of the west track and the right rear wheel was upon a part of the crossing planks. The wheels had dropped into some depressions beyond the rail and between the ties. The driver of another car soon arrived, and plaintiff requested him to pull the car off the tracks. An emergency chain was attached to the front end of the car, and the driver of the other car attempted to pull the automobile forward, but was unable to move it. The chain was then attached to the rear of the car on the tracks and an effort made to pull the car backward which also failed. At this time plaintiff was informed that a train was about due, and about the same time plaintiff saw the headlight of the train approaching from the north or his attention was called to the fact that the train was coming. The train hit the automobile and completely destroyed it. Plaintiff described the occurrence in the following manner:

"The sky was cloudy and we could see the reflection of the train around the curve. There was a curve up there and we could see it when it came around the curve and whistled for the crossing.

"It gave the ordinary crossing signal, two longs and two shorts; after that the engineer commenced to toot his horn short sharp blasts, what is commonly known as the danger signal; he began giving short toots immediately after giving the crossing whistle— not over a second or two; he continued to give the short toots until he got right on top of my car; I stepped out in front of the car probably ten feet in the bright glare of the headlight of the car and frantically waived my hat, thinking I could signal the train down to a stop; the train did not stop and apparently did not slow down; I watched the train from the time it began giving whistles and I could not tell if it made any attempt to stop.

"I have been down there since this occurrence and the situation looks to me to be the same now as then; it is 34 rail lengths from the crossing to the whistling post; I measured same and the rails there are 39 feet long; from the whistling post to the crossing the track is apparently straight—you can see the whistling post from the crossing; as the train came southward the headlight was on my automobile; the first signs of slowing down was just as he hit the automobile; as soon as he hit the automobile I saw sparks flying from the wheels and the rails; I knew the brakes were applied because I saw the sparks; there were no sparks flying before that; the train ran 7½ or 8 car lengths after striking the automobile; it was a passenger train and I would judge the cars are from 55 to 70 feet long; * * * the train stopped with a part of it on the crossing."

The time was stated by plaintiff to be "about dusk"; and that "the first thing I noticed was the reflection of the headlight on the clouds; it was cloudy and a little misty, but no fog."

The foregoing was the substance of plaintiff's evidence. A demurrer thereto was overruled and defendant offered evidence. The record shows that defendant offered in evidence a number of photographs, among them being one marked Exhibit 2, which was identified by plaintiff as showing a northward view from the crossing. The photographs were all identified as exhibits and were admitted in evidence. They are not shown in the abstract of the record, but the abstract contains a recital that they "will be shown to the court." Certain photographs were handed to the court for its inspection during the argument of the case on this appeal. Defendant's further evidence consists of the oral testimony of the photographer; that of a civil engineer, and the locomotive engineer. The photographer testified that looking to the north from a point near the crossing in question the railway tracks curve to the west and that "the curve...