Shepard v. St. Louis-San Francisco R. Co.

• Decision Date: 02 March 1926
• Docket Number: No. 3705.,3705.
• Citation: 280 S.W. 1058
• Parties: SHEPARD v. ST. LOUIS-SAN FRANCISCO R. CO.
• Court: Missouri Court of Appeals

280 S.W. 1058

SHEPARD v. ST. LOUIS-SAN FRANCISCO R. CO.

No. 3705.

Springfield Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, Pemiscot County ; Henry C. Riley, Judge.

Action by John L. Shepard against the St. Louis-San Francisco Railroad Company. Judgment for defendant on demurrer to plaintiff's testimony, and plaintiff appeals. Reversed and remanded.

C. G. Shepard, of Caruthersville, for appellant.

E. T. Miller, of St. Louis, and Ward, Reeves & Oliver, of Caruthersville, for respondent.

COX, P. J.

Action under the humanitarian rule for injury resulting from a collision of loose cars on defendant's track with plaintiff's automobile at a public crossing. At the close of plaintiff's testimony the court sustained a demurrer thereto, and he appealed.

The petition alleges that the loose cars had been sent moving southward upon the track by defendant's servants making what is called a flying switch; that is, that an engine had pushed or pulled the cars until they had acquired sufficient momentum to cause them to pass over the crossing, and then the engine was detached from them, and they allowed to pass on along the track over the crossing; that no warning of their approach to the crossing was given; that the servants of defendant failed to keep a lookout for persons on the crossing or to give warning; that they could have discovered plaintiff's peril and have given him warning in time to have avoided the collision. The answer was a general denial and plea of contributory negligence. It alleges that plaintiff negligently drove his automobile in front of a moving train without looking or listening, or exercising any precaution for his own safety. Plaintiff's evidence tended to show the following facts: Plaintiff approached the tracks of defendant at a street crossing. He was traveling west, and, as he approached, he saw an engine standing on the first track about 30 feet north of the crossing. He proceeded across this track, and, when on the second track, his automobile was struck by some loose freight cars passing southward on that track. That there was no bell rung or whistle sounded, and no warning of any kind given of the approach of these cars, and no person stationed at the crossing or on the cars to keep a lookout for people on the crossing and warn them of the approach of these cars. The physical facts proven show that plaintiff, if he had looked, could have seen these cars coming in time to have stopped his automobile and avoided the collision. He was therefore guilty of contributory negligence as a matter of law, and, if he can...