Sandry v. Hines

• Decision Date: 03 July 1922
• Docket Number: No. 13688.,13688.
• Citation: 246 S.W. 641
• Parties: SANDRY v. HINES, Director General of Railroads.
• Court: Missouri Court of Appeals

246 S.W. 641

SANDRY v. HINES, Director General of Railroads.

No. 13688.

Kansas City Court of Appeals. Missouri.

July 3, 1922.

Rehearing Denied November 6, 1922.

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

"Not to be officially published."

Action by William J. Sandry against Walker D. Hines, Director General of Railroads. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Campbell & Ellison, of Kirkville, and J. G. Trimble, of St. Joseph, for appellant.

W. F. Frank and James E. Rieger, both of Kirksville, for respondent.

TRIMBLE. P. J.

On the morning of June 14, 1919 (about 8:15 o'clock), plaintiff, driving a Ford automobile, and with a passenger, Lewis, to his right on the front seat beside him, was going north along the highway approaching what is known as the "Capps crossing" on the Quincy, Omaha & Kansas City Railroad then in the hands of and being operated by the defendant Director General of Railroads. The railroad at this point runs east and west. As the rear end of his automobile was leaving the north rail, but with the rear wheels still within the danger zone, an engine with only a tender attached traveling east struck "just barely inside" the left hind wheel of the automobile, overturning it and injuring plaintiff.

He brought this action for damages alleging negligence: (1) In failing to give the statutory signals required at a crossing. (2) In failing to keep a watchful lookout for persons approaching or on said crossing, and in failing to stop said locomotive or slacken the speed thereof, or give warning signals, when the engineer knew, or, by the exercise of ordinary care, ought to have known of plaintiff's danger, in ample time to have stopped the engine, or slackened the speed thereof or give warning signals, and could thereby have avoided the injury.

The answer was a general denial.

At the close of plaintiff's case in chief, and at the close of the entire case, defendant offered a general demurrer, which the court overruled. Plaintiff's case was submitted to the jury upon two instructions respectively embodying the grounds of negligence above set forth. The jury returned a general verdict for plaintiff in the sum of $5,000, and from the judgment rendered thereon the defendant appealed.

The appeal was argued and submitted in this court at the October term, 1920, and on November 8th, following, the judgment was affirmed in an opinion by Bland, J. (Mo. App.) 226 S. W. 646. However, on certiorari to the Supreme Court, our judgment of affirmance was quashed. State ex rel. v. Bland, 237 S. W. 1018. Thereafter, at the April call of our March term, 1922, the appeal was reheard by us, on briefs and oral argument by respondent and additional briefs by appellant.

As will hereinafter appear, the case on the first specification of negligence above mentioned has been effectually and completely disposed of by the Supreme Court, even if there be any room for the view that our former opinion did not present the case as favorably for plaintiff as the record in reality justifies, and that the Supreme Court's opinion, being based on the facts stated in our former opinion, is therefore only applicable to the case as therein shown.

In order that this may clearly appear, and because it is deemed that the plaintiff's evidence on the entire case has a bearing upon the question of whether there was a case for the jury on the alleged violation of the humanitarian rule, which still remains for decision, we set forth a detailed statement of what the record discloses.

About 150 yards west of the crossing, the railway track emerges from a cut and runs from there to the crossing on an embankment which is 10 to 12 feet high next to the mouth of the cut and slopes to 5 or 6 feet in height at the crossing. The right of way at the crossing is 100 feet in width, it being 50 feet wide on each side of the track.

At the time of the injury there were, on both sides of the county road, obstructions, consisting of tall trees, brush, and weeds on the east, and brush and weeds on the west side. Said obstructions began at a point at least several hundred feet—many witnesses say a quarter of a mile—south of the crossing and continued north to the railroad. Plaintiff introduced the evidence of himself and several witnesses to show that these obstructions extended up to within 8 or 10 feet of the track, at least on the west side of the crossing but not quite so far perhaps on the east side; and that these obstructions prevented a traveler on the county road from obtaining a view of the track to either side of the crossing until he was very close to the track. One witness, the elder Summers, said:

"You would have to be in 8 or 10 feet of the track to see any distance up the track or down either, but you could see further down (east) than up (west). It is a little more open on the east than it is on the west side."

He further testified that the weeds were over a man's head, so high that a person sitting in an automobile could not see any distance west up the track until he was in 8 or 10 feet of the track. Appellant asserts that what the witness meant was that one could not see the tracks, but that they might see an engine. It may be a little uncertain whether the witness had reference to the view west of the crossing, or east of it, for he had been asked if he was prepared to tell the jury he could not see an engine from anywhere on the railroad east, and had finally said:

"You might see it east pretty well; I don't know about that.

"Q. What you are talking about is those weeds obstructed the view of the rails of the track? A. Yes, of course, you might see an engine."

However, whether this witness meant one or the other (and personally I think he meant west of the track) makes little difference, for another of plaintiff's witnesses, the younger Summers, who testified that the weeds grew within 10 feet of the rails and that one would have to get close to the track before one could see west of the crossing, said on cross-examination that one would have to be inside of the right of way 15 or 20 feet before one could see, and explained that what he meant was that one could not see the rails on the track. And plaintiff's medical witness, who was asked in chief only in relation to plaintiff's injuries, testified on cross-examination that he passed and repassed the crossing on the day of the accident and after it happened, and that he stopped at the south edge of the right of way and took particular pains to look, and there were no obstructions to prevent a view of the track or of a train west of the crossing at any point between the edge of the right of way and the crossing. I take it that, under the Missouri rule as to cross-examination, this would be considered as evidence given by plaintiff's witness, though it might not under the federal rule.

Another witness, Carey, said he went over that road in an automobile in June, the same month of the accident and before the weeds were cut (which was done after the accident), and that the weeds on the west side of the road were 10 or 12 feet high, higher than the top of a Ford automobile; but, as no train had come along while he was there, he had had no opportunity to know whether one could or could not see an engine approaching. He was asked, however, if there was any point within a distance of 100 feet south of the crossing where a person sitting in an automobile would have unobstructed view of an engine approaching from the west? He replied:

"Well, there is places you might see the train and places you could and places you could not."

Being pressed upon this point, he said that the growth was such there that if one looked west "it might be" that one could see a train, but finally, in answer to the question, "Do you mean to say that the situation there on June last was such that a person traveling that road and going north couldn't see an approaching engine until he got on the track?" he said:

"No, sir; you couldn't see that train until you got right close to the track.

"Q. How close? A. Possibly 8 or 10 feet.

"Q. Then he could see it? A. Yes, sir."

Another witness, Swisher, testified that he went along there in an automobile or. June 14th (the day of the accident), and before the weeds were cut, and he swore that the weeds extended north up to "within a foot and a half of the ties"; that a train approached as he went to the crossing, but that its whistle and smoke told him of its approach, and that there was no way for one to see the engine until they were in a few feet of the track; the view was absolutely obstructed. He explained this by saying that one could see an engine when one got within 10 or 12 feet of the track which would put the front end of the automobile 8 or 9 feet from the track.

Another witness, Capps, testified that the weeds grew up to within 2 or 3 feet of the rails, and he produced in court some of the weeds he had cut, and they measured 7 feet 5½ inches in length.

A witness, who was working in the field adjacent to the whistling post, testified he was resting his horses and sat watching the engine in question as it passed and noticed that it neither rang the bell nor whistled there, nor at any time as it went on toward the crossing. Other witnesses testified to the failure to whistle or ring the bell, and that they noticed the great speed at which it was traveling.

Plaintiff testified that he went north along the road at 10 miles per hour, driving thus slowly on a bumpy road for fear of breaking his eggs and mashing some berries he had in his car; that at a point 400 feet south of the crossing he began looking to the west or northwest, and from there on continued to "listen both ways" for a train; that from the abovementioned point he looked west "for quite a piece," and then he looked east but could not see anything. When he saw that Lewis was looking east, he (plaintiff) then looked west, and continued to...