Schaub v. Kansas City Southern Ry. Co.

• Decision Date: 05 October 1908
• Parties: SCHAUB v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

113 S.W. 1163

133 Mo. App. 444

SCHAUB v. KANSAS CITY SOUTHERN RY. CO.

Kansas City Court of Appeals. Missouri.

October 5, 1908.

Rehearing Denied November 16, 1908.

1. TRIAL (§ 139)—QUESTION FOR JURY—SUFFICIENCY OF EVIDENCE.

Where testimony is clearly incompatible with the physical facts, it is not sufficient to raise a question of fact, but will be disregarded.

2. RAILROADS (§ 348)—CROSSING ACCIDENTS —ACTIONS—EVIDENCE—CONTRIBUTORY NEGLIGENCE.

In an action against a railroad for injuries sustained at a crossing, evidence held to show that plaintiff either did not look for the approaching train, or, if he saw it, did not take proper precaution, so that his negligence barred a recovery.

3. RAILROADS (§ 330)—CROSSING ACCIDENTS —CONTRIBUTORY NEGLIGENCE—RELIANCE ON PRECAUTIONS OF RAILROAD COMPANY.

One approaching a public crossing on a street must look and listen, when he is in a position of safety, to discover approaching trains, and the fact that the crossing watchman was not at the crossing did not entitle plaintiff

to assume that the watchman was at his post and doing his duty, but he should himself have used reasonable care to discover approaching trains before attempting to cross.

4. EVIDENCE (§ 87)—PRESUMPTIONS—OPERATION AND EFFECT—PRESUMPTIONS OF FACT.

Presumptions of fact become inoperative when the actual facts are disclosed, or when it is incumbent upon the party relying thereon, under the circumstances, to know the facts.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Karl Schaub against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Samuel W. Moore, Cyrus Crane, Samuel W. Sawyer, and Geo. J. Mersereau, for appellant. L. A. Laughlin, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages for personal injuries alleged to have been caused by the negligence of defendant. He had judgment in the sum of $800, and defendant appealed.

The injury occurred on August 1, 1905, at the intersection of defendant's railroad and Holmes street in Kansas City. The street runs north and south and crosses defendant's tracks—two in number—at a right angle. At about half past 6 o'clock in the evening, plaintiff, accompanied by a Mr. Hageler, drove south on Holmes street in a one-horse buggy, and, as they neared the crossing, looked for some warning of the approach of a train. Defendant maintained a watchman at this place, but no gate. Plaintiff and his companion, observing that the watchman was not present, looked up and down the railroad, saw no train, and drove forward to the crossing. When the horse reached the south track, Hageler became aware that a passenger train was coming from the west and was so close to the crossing that a collision was inevitable. He exclaimed in German, "We are done," and at this plaintiff glanced up, saw the train for the first time, and attempted in vain to escape by hurrying the horse. The engine struck the hind end of the vehicle and threw the plaintiff out, inflicting severe personal injuries. It is alleged in the petition that ordinances in Kansas City in force at the time required defendant to maintain gates at this crossing, and to keep a watchman there, and forbade the running of trains at a higher rate of speed than six miles per hour. The negligence charged is: "First, in failing to provide gates, or to have a watchman or other person stationed at said crossing to give warning to plaintiff of the approach of said train of cars. Second, in moving said train of cars at a greater rate of speed than six miles an hour over Holmes street at said crossing. Third, in failing to sound the whistle or ring the bell within 80 rods of said crossing on Holmes street." The answer contains a general denial and a plea of contributory negligence.

We are of opinion that the court erred in refusing defendant's request for an instruction peremptorily directing a verdict in its favor. The evidence, in its aspect most favorable to plaintiff, convicts him of negligence in law and demonstrates beyond peradventure that his own negligence directly contributed to his injury. In giving our reasons for this conclusion, we concede for argument that defendant was negligent in not having gates at the crossing and a watchman there at the time in question to warn travelers on the street of the approach of trains; and, further, that defendant was negligently running its train at from 20 to 25 miles per hour, in violation of the city ordinance. But these concessions do not avail plaintiff anything since the indisputable facts of the situation show that the injury would have been avoided had he exercised reasonable care for his own safety.

The tracks of defendant are laid in Second street and run straight east and west. A two-story building was at the northwest corner of the intersection of the two streets. The north rail of defendant's north track was 24.2 feet from...