Ross v. Davis

• Decision Date: 05 March 1923
• Docket Number: No. 14598.,14598.
• Citation: 248 S.W. 611,213 Mo. App. 209
• Parties: ROSS v. DAVIS, Agent.
• Court: Missouri Court of Appeals

248 S.W. 611

213 Mo. App. 209

ROSS v. DAVIS, Agent.

No. 14598.

Kansas City Court of Appeals. Missouri.

March 5, 1923.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

Action by Elmer Ross against James C. Davis, Agent under the federal Transportation Act (41 Stat. 456). From judgment for plaintiff, defendant appeals. Reversed and remanded.

F. H. Moore, Cyrus Crane, Hugh E. Martin, and A. F. Smith, all of Kansas City, for appellant.

Virgil Yates and Mosman, Rogers & Buzard, all of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff was injured at a public railroad crossing, and in a suit for damages recovered a judgment for $1,500, from which defendant has appealed. The crossing was that of the Kansas City Southern Railway over the highway known as the Raytown road near the eastern edge of Kansas City. At this point the railroad lies almost north and south, perhaps a little northeast, and the Raytown road lies northwest and southeast. Plaintiff, in approaching the crossing, was proceeding northwest along the highway, and was struck on the crossing by a north-bound passenger train. The injury occurred about 9:30 in the morning of December 12, 1919, during the period when the railroad was under federal control.

In addition to a charge of negligence in failing to give the statutory crossing signals, the petition alleged a violation of the humanitarian rule, in that, although the train operatives saw, or by ordinary care could have seen, plaintiff approaching the crossing in a position of peril and danger, and oblivious thereof, in time thereafter by ordinary care to have averted a collision either by sounding a warning, slackening speed, or stopping the train, yet they negligently failed to do so. However, the case was submitted upon instructions which embodied only the violation of the humanitarian rule, and hence that is, the only ground of negligence with which we now have to deal.

Plaintiff was riding in a motor truck of which one Wren was the driver. The two men were employees of the Feeders' Supply Company, and were returning from a delivery of feedstuff they had made. Wren was foreman over plaintiff, and was in complete charge and control of the truck, plaintiff having no right to direct or control its movements. The surroundings at the crossing presented an open and unobstructed view not only for those approaching on the highway, but for train operatives approaching on the railroad. There was a bluff or hill immediately east of the railroad, and extending to the edge of the right of way, but was south of the Raytown road and the crossing a distance of about 600 feet according to the measurements given by defendant's surveying engineers, but only 300 or 400 feet according to plaintiff and Wren. However, they were only giving their estimate of the distance. Plaintiff says he never measured it, but thought it was only 300 or 400 feet, and was giving his best judgment as to the distance. And Wren, in stating that one could see along the track for 300 or 400 feet as the crossing was approached, said one could see to the hill. The photographs show that at a point 200 feet back from the crossing one can see south along the track a short distance past the foot of the hill, and as the crossing is approached the view along the track increases until, when one is 40 feet from the crossing, the track can be seen for a quarter of a mile, and when one is 20 feet from the crossing he can see along the track further than that.

Plaintiff says that for half a mile (Wren says for a quarter of a mile) before one, in going northwest along the road, reaches the crossing, said road is on a down grade to a point 10 or 12 or 15 feet from the crossing, at which point the road goes up grade slightly to the top of the crossing, which is on a ridge or grade from 3 to 5 feet in height. Both of these men say they coasted down hill towards the crossing at about 8 or 10 or 10 or 12 miles per hour to the point where the grade started to rise, and there they stopped an instant for two purposes, one to apply the power of "low gear" to the truck (no newer being on in coasting), and the other to look for a train; that, seeing and. hearing none, they then started up to and over the crossing at a speed of 2 miles per hour at the start. On cross-examination Wren said the truck was going 2 miles an hour when it was passing over the crossing, but admitted that at a former trial he said it was going 4 miles an hour. Plaintiff said it went over at a rate of 2 or 3 miles par hour, out it might have been 3 or 4, he did not know; he never drove a truck, but he, too, admitted that at the former trial he said it was going 3 or 4 miles an hour. Wren said, going at that rate, he could stop almost instantly, and, with his foot on the accelerator as he had it then, the truck would pick up speed instantly if more gas were applied. Plaintiff says that the train struck them just as the front wheels of the truck, after crossing the second rail, dropped on the ground, and Wren says the train struck the truck just back of the cab about in the middle of the truck.

Wren says that as he came down the hill he had his foot on the brake, and kept the truck under control; that as he came down he watched for a train; that he watched as he stopped at the point 10 or 12 feet from the track. When asked why he stopped, he said he was out of power, and one thing he stopped for was to look for a train or listen, and another thing was to throw his gear "into low" and make that grade; that he did not give just an idle glance, but looked carefully. He said he knew trains came by there frequently, and that they came fast; that his stopping and locking and his starting forward on the track were instantaneous. When asked how long he stopped at the point 10 or 12 feet from the track, he said: "Just about like that (indicating). Just barely stopped to throw it into gear, just an instant was all." And at that instant he was looking south. He said that at that point he could see along the track 300 or 400 feet; "I could see as far as that hill." He was absolutely certain that he looked to the south and to the north when he stopped and immediately started up again, but thereafter did not look again, giving his attention to going over the crossing.

Plaintiff says that when they got within 50 feet of the track that he began looking and listening for a train. He looked north and south both, and also listened. He did not see any train and did not hear any; that he looked north and south, and listened, at the time the truck stopped, bat did not see nor hear any; that he looked carefully, and looked as far as he could see; that he did not remember whether Wren looked or not, but admitted that at the firmer trial he may have said Wren looked both ways, to the north and to the south; that the truck stopped, plaintiff looked, and immediately Wren put his truck in gear and started on over; that he knew the track was a pretty busy one, and trains went over it pretty fast, and he looked to make sure there was nothing approaching.

Plaintiff and Wren both say they heard no hell nor whistling nor signals of any kind. Plaintiff's witness Wimberly, who was sitting in the smoking car, but who did not remember which side of the car he was on, said he did not hear any whistle blown as the train approached the Raytown road crossing, nor did he hear any bell. He got on at Drexel, and on cross-examination said that between Drexel and the crossing in controversy the railroad crossed several roads, but he could not remember whether there were any crossing signals given for them or not, as he paid no attention, and did not remember of any signal being given from Drexel at any time; that until the accident happened there was nothing to attract his attention, except that he had noticed that the speed of the train was rather excessive; that until he got to the crossing he did not observe whether any whistle had been blown or not. Nevertheless, when asked, "You don't mean to say there wasn't any given, and you don't mean to say there wasn't any given down here; you merely didn't observe it?" he replied, "I mean to say there wasn't any given, because I would have heard it if it had." He further testified that when the train stopped after the collision he got out and went forward to the engine, and that, while he would not have been liable to hear the bell inside the car while the train was in motion, yet he was sure the bell was not ringing when he got outside. (The engineer testified that there was an automatic bell ringer which started when the train entered Grand View, before the crossing was reached, and was not shut off until the train got to the Union Station in Kansas City.) On direct examination witness said that for 1,000 feet back from the crossing the train was going from 44 to 50 miles per hour, and it continued at that speed until the air brakes were put on; that his attention was attracted because in going around the curve the train lurched, and he noticed that the train was going at a higher rate of speed than ordinary for it.

Another witness, Rowden, who was in the smoker sitting by the above-mentioned witness, and who was an ex-fireman, once having a run of the defendant railroad which passed over this crossing, testified that, as the train came around the curve and got upon the straight track leading to the crossing, his attention was called to the train because of its unusual speed; that he heard no whistles or signals given for the Raytown road crossing nor any bell ring; that the train was two hours late, and was going 40 miles or more an hour; that the train was running pretty fast when suddenly the car began jumping, and he "thought there was something off ahead of us," and when the train came to a stop he got off and went down to the engine; the automatic bell ringer was not working and no bell was ringing; that when the train stopped, the rear end was 50...