Salisbury v. Quincy, O. & K. C. R. Co.

• Decision Date: 29 December 1924
• Docket Number: No. 15100.,15100.
• Court: Missouri Court of Appeals
• Parties: SALISBURY v. QUINCY, C. & K. C. R. CO.

268 S.W. 896

SALISBURY v. QUINCY, C. & K. C. R. CO.

No. 15100.

Kansas City Court of Appeals. Missouri.

December 29, 1924.

Rehearing Denied January 19, 1925.

Certiorari Denied February 19, 1925.

Appeal from Circuit Court, Adair County; J. A. Cooley, Judge.

"Not to be officially published."

Action by Harold J. Salisbury, by James Salisbury, next friend, against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. G. Trimble, of St. Joseph, and M. D. Campbell, of Kirksville, for appellant. Higbee & Mills, of Kirksville, for respondent.

ARNOLD, J.

This is an action for personal injuries received by plaintiff, Harold Salisbury, on June 25, 1923, when an automobile in which he was riding was struck by a train of defendant at a farm crossing about two miles east of Novinger in Adair county, Mo.

At the time of the accident, plaintiff, who was about six years of age, was riding with his grandfather, Nat L. Johnson, a physician about 50 years of age, who was driving the car. Virgil, an elder brother of plaintiff, had been riding with them until a short time before the accident occurred. Dr. Johnson, with the two boys in the car, drove north on a public highway to defendant's railroad, which at this point runs east and west. On reaching the south line of the right of way, said highway turns east along the south side thereof, and proceeds east parallel thereto. At the point where the highway turns east there is a road crossing the right of way and tracks due north. The right of way is fenced, and wire gates are maintained," though not always kept closed. On the day in question, the gates stood open. A crossing had been maintained at this point by defendant for many years, and the testimony shows there was ballast between the rails of defendant's track.

On the morning of June 25, 1923, the automobile in question was driven by Dr. Johnson over this crossing to a point north thereof, where plaintiff's father was engaged in plowing. Virgil left the car and began plowing, while Dr. Johnson engaged in conversation for a short time with plaintiff's father and then with plaintiff drove the car south along the division fence through the gate onto the right of way. The width of the right of way from the gate to the track rails is estimated by the witnesses at from 50 to 58 feet. The railroad at the crossing is on an embankment 8 or 9 feet above the level of the land in the fields for approximately half the distance from said gate to the north side of the track.

The automobile was traveling at the rate of about 10 or 12 miles per hour until it reached the foot of the incline and was proceeding in lower gear up toward the track. When it reached a point where the front wheels passed over the north rail, the driver saw defendant's passenger train approaching from the east. The train, consisting of an engine and four coaches, was about 150 to 200 feet distant, and the evidence shows it was traveling at 35 to 40 miles per hour. Dr. Johnson testified he was traveling up the incline at about the rate of 5 miles an hour, and when he saw the train he thought he could clear the track by putting on all power rather than attempt to back from its path. The engine pilot struck the body of the car about 8 inches from the rear, dragged the car slightly, and threw it down the embankment on the south side, injuring both occupants.

From a point east of said crossing there is an ascending grade of 1 per cent. or slightly less and for a distance of half a mile eastward the track is without a curve; but at that distance there is a curve, and a train approaching from that direction may not be seen beyond this curve by persons on the crossing. At or near the curve is a railroad bridge across a stream called Rye creek, and beyond that, a quarter of a mile distant, a highway crosses defendant's tracks. At the crossing where the collision occurred and on the north of the railroad, thence east for some distance, weeds and brush had been allowed to grow on the right of way and up to within 2 to 4 feet of the end of the ties north to the right of way fence. As to the height and number of the weeds and brush the testimony is conflicting, the height being estimated variously from 2 to 12 feet. Photographs were introduced in evidence by each of the parties hereto for the purpose of showing the physical terrain as well as the weeds and brush. The negligence charge in the petition is as follows:

"That defendant's agents and servants in charge of and operating said train carelessly and negligently failed to sound the whistle or ring the bell on the engine drawing said train at any time or place within 80 rods of said crossing; that on account of the growth of weeds and brush on defendant's right of way, at and to the east of said crossing, the view was obstructed so that plaintiff and the driver of said automobile were unable to, and could not, and did not, see said train until the front wheels of the automobile were upon said track and had passed from the north rail thereof; that by reason of the failure to ring the bell or sound the whistle on said engine and the said obstructions to his view, plaintiff and said driver were ignorant of the approach of defendant's said train until the automobile was in the position on defendant's said track as aforesaid, and defendant's said train was then so near said automobile that said driver was unable to get it off the crossing in time to avoid a collision with said engine, and said automobile was struck on the rear end thereof, and damaged, and plaintiff sustained severe and permanent injuries," etc.

The petition also charges violation of the humanitarian rule in the following language:

"* * * Defendant's agents and employees in charge of and operating said locomotive engine saw, or by the exercise of ordinary care on their part could and should have seen, said automobile in a position of peril in time, by the exercise of ordinary care on their part, to have avoided striking it with defendant's said locomotive; nevertheless defendant's said employees negligently and carelessly failed to check the speed of said locomotive or to use the means at hand to avoid striking said automobile as aforesaid, and negligently and carelessly failed to warn plaintiff and the driver of said automobile of the approach of the said train as aforesaid."

The answer is a general denial and a plea of contributory negligence on the part of the driver of the car in failing to exercise proper care and caution for plaintiff's safety. The reply is a general denial, a plea of the immature age of plaintiff, and an allegation that if the driver of the car is chargeable with negligence, the same cannot be charged against plaintiff.

Trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $4,500. Demurrers offered at the close of plaintiff's evidence, and again at the close of all the evidence, were overruled. Motions for new trial and in arrest were unavailing, and defendant appeals.

At the threshold of the case we are confronted with plaintiff's motion to dismiss the appeal for violation of rule 16 of this court, wherein an appellant is required to file "a clear and concise statement of the case, without argument and without reference to issues of law or repetition of testimony of witnesses." It is charged that defendant's statement consists of discussion of the pleadings, instructions, and the setting out of excerpts "of testimony of witnesses from the viewpoint most favorable to defendant; that it omits testimony most favorable to plaintiff; and that the statement is argumentative.

The purpose of rule 16, as stated therein, is to enable the court to be informed of the material facts of the case from the statements of appellant and respondent, without being required to glean them from the abstract of the record. While, in a general way, the statement before us may be open to respondent's criticism, the court is able to grasp the salient facts in the case without much difficulty and without recourse to the record While the statement may not come within the strict meaning of the rule, it is not such an infraction thereof as to warrant a dismissal of the appeal. The motion to dismiss is accordingly overruled, and we proceed to a consideration of the appeal on its merits.

The first assignment of error is that the court erred in refusing defendant's instructions in the nature of demurrers to the evidence. It is urged plaintiff did not make a case to go to the jury either under his charge of negligence, or under the humanitarian rule. We shall address ourselves first to the matter of the alleged negligence of defendant in failing to ring the bell or sound a warning in approaching the crossing. The negligence charged consists in the failure to give an alarm either by the ringing of the bell or sounding the whistle, and failure to slacken the speed of the train after the automobile was seen, or by the exercise of ordinary care could have been seen, by the engineer.

On this point the engineer testified that the bell was started ringing at Kirksville, several miles east; but he makes no claim that the whistle was blown at any time after passing the public highway crossing about one mile east of the scene of the accident.

Virgil Salisbury, who was plowing in the field adjoining the scene of the accident, testified that he had turned at the north end of the field and was facing south; that he saw the train approaching from a point about a half mile east at the bridge over Rye creek; that he was watching his grandfather driving toward the crossing. He was positive in his statement that the engine bell was not rung nor the whistle sounded. This is in flat contradiction to the engineer's statement that the bell was ringing. In this condition of the testimony, we cannot say that the question was not for the jury on this point.

Dr. Johnson testified that—

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