Sandry v. Hines

• Decision Date: 08 November 1920
• Docket Number: No. 13688.,13688.
• Citation: 226 S.W. 646
• Parties: SANDRY v. HINES, Director General of Railroads.
• Court: Missouri Court of Appeals

226 S.W. 646

SANDRY v. HINES, Director General of Railroads.

No. 13688.

Kansas City Court of Appeals. Missouri.

November 8, 1920.

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. Affirmed.

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

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

BLAND, J.

This is a suit for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000, and defendant has appealed.

The facts show that on June 14, 1919, there was a collision between an automobile driven by plaintiff and an unattached railroad engine operated by the defendant, resulting in plaintiff's injury. The injury occurred at what is known as Capp's Crossing in Adair county. At the point of the injury defendant's railroad runs east and west, and the public road upon which plaintiff was driving runs north and south. Plaintiff lived about a mile and a half southwest of the crossing. On the morning of the injury he was driving to Novinger in a Ford car. He approached the crossing at the rate of speed of about 10 miles per hour. He began looking for a train when he reached a point about 400 feet south of the crossing, at which time he looked northwest. He stated that trees, brush, and weeds obstructed his view to the east. He continued looking in a westerly direction for some distance, and then looked east, but could see nothing. He saw that Mr. Lewis, a passenger in the car, was looking east. He then looked west and continued looking west until he reached the railroad right of way 50 feet south of the tracks. He then looked east, and Mr. Lewis looked west, but on account of weeds obstructing plaintiff's view he could not see eastwardly down the track until he "got right close to the track," requiring him to continue looking east until he arrived practically on the track before he could see toward the east. When he arrived on the track he looked west, and for the first time saw the engine 45 to 60 feet away.

The engine struck the left hind wheel of the automobile; the remainder of the car being clear of the track and engine at the moment of the impact. The growth of brush and weeds on the west side of the public road was of such height and density as to totally obstruct plaintiff's view to the west until he reached the railroad right of way. From the railroad right of way to a point within a foot and a half of the railroad ties there was a dense growth of weeds such as would obstruct plaintiff's view to the west until he reached a point 18 or 20 feet from the track. There was a cut 150 yards west of the crossing. From the cut to the crossing there was an embankment 10 to 12 feet in height beginning at the east end of the cut and sloping to 5 or 6 feet in height at the crossing. There was a clump of trees close to the track 100 to 150 feet west of the crossing, which obstructed the view of the track to the west of the trees. Plaintiff testified that he could have seen the top of the engine from the time he entered the right of way. Plaintiff looked and listened continuously from a point about 400 feet south of the track until he saw the engine. There was no bell rung or whistle sounded. The engine approached the crossing going at the rate of speed of about 20 miles per hour.

Defendant's brakeman testified that he was riding with the engineer; that he saw the automobile when it was from 50 to 60 feet from the track; that the occupants were looking straight ahead and apparently did not know of the approach of the engine; that at the time he first saw the automobile the engineer "shut the engine down" and reached for the whistle cord, threw the brakes into emergency, and reversed the engine; that there was one blast from the whistle ; that the engine was going at a rate of speed of from 18 to 20 miles per hour; that it could have been stopped under the circumstances in 60 or 70 feet; that the engine would run 20 to 25 feet while the engineer was pulling the whistle cord and applying the brake before the brake would take effect. There was evidence that the engine ran 60 or 70 feet east of the crossing before stopping. The engineer testified that the engine was 90 to 100 feet west of the crossing when he first saw the automobile.

The petition is founded upon two theories: First, the humanitarian rule; and, second, the failure of the locomotive operators to give the statutory warnings upon approaching the crossing.

Defendant's first point is that the petition fails to state facts sufficient to allege a cause of action under the humanitarian rule. The petition alleges that the persons in charge of the locomotive saw, or by the exercise of ordinary care might have seen, plaintiff in a position of peril in time to have stopped the locomotive or to slacken the speed thereof or to have given warning signals, but it fails to allege that the persons in charge of the locomotive saw plaintiff in a position of peril and oblivious thereof. It is contended that for the reason that the element of obliviousness is not alleged in the petition it fails to state a cause of action under the rule laid down in the case of Knapp v. Dunham, 195 S. W. 1062. The servants in charge of the locomotive testified to the effect that they knew that plaintiff and his passenger, Lewis, were oblivious to their peril, claiming that the latter two were looking straight north and apparently unaware of the approach of the engine. We do not think under the facts in this case the element of obliviousness was a contested issue in the case, and therefore it need not have been pleaded. The facts in this case bring it within the rule laid down in Bybee v. Dunham. 198 S. W. 190, 193, and Heryford v. Spitcaufsky, 200 S. W. 123, and are unlike those in the Knapp Case.

It is insisted that no negligence on the part of the persons in charge of the locomotive is shown; therefore defendant's instruction in the nature of a demurrer to the evidence should have been given. This point is based upon the contention that the engineer had no time in which to have averted the accident after he saw or could have seen plaintiff in a position of peril. We think there is no merit in this contention. The facts show that the engine would cover 20 feet while the engineer was pulling the whistle cord and applying the brake before the brake would take effect, and that the locomotive would then stop within 60 feet going at the rate of speed that it was traveling, after the brakes became effective; in other words, the engineer could have stopped the locomotive within 80 feet after he saw plaintiff in a position of peril, whereas he ran 100 feet before striking him and 70 feet thereafter, or 170 feet in all before the locomotive was stopped. The automobile came within a few inches of clearing the track and engine before it was struck. It is apparent that, if the engineer had merely slackened the speed of his engine, the automobile would have cleared the track and the injury would have been averted. We may infer from the facts shown that he did nothing to stop or slacken the speed of the locomotive until he had traveled 90 feet after seeing plaintiff in a position of peril and oblivious thereof.

It is insisted that plaintiff's own negligence contributed to his injury, and therefore he cannot recover under the crossing...