Shore v. Dunham

• Decision Date: 02 July 1915
• Docket Number: No. 11635.,11635.
• Citation: 178 S.W. 900
• Parties: SHORE v. DUNHAM et al.
• Court: Missouri Court of Appeals

178 S.W. 900

SHORE v. DUNHAM et al.

No. 11635.

Kansas City Court of Appeals. Missouri.

July 2, 1915.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

"Not to be officially published."

Action by Richard D. Shore against Robert J. Dunham and another, receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.

John H. Lucas, of Kansas City, and L. T. Dryden, of Independence, for appellants. Cowherd, Ingraham, Durham & Morse, of Kansas City, for respondent.

TRIMBLE, J.

Defendant's street car collided with and demolished plaintiff's automobile. He sued for damages, and recovered judgment for $300. Defendant's chief complaint on appeal is that plaintiff was guilty of contributory negligence. To be effective here, the evidence must conclusively show that charge to be true.

The collision occurred at the crossing on defendant's double track street railway in Rock Hill Road at the latter's intersection with Brush Creek Boulevard in Kansas City. Rock Hill Road runs north and south, and the boulevard runs east and west. A block north of this intersection, Forty-Sixth street, running parallel to the boulevard, intersects Rock Hill Road, and a block south of the scene of the collision, Forty-Seventh street, parallel to the boulevard, also intersects said Rock Hill Road. The boulevard is practically level, but on Rock Hill Road, from Forty-Sixth street past the crossing in question, it was downgrade, the fall being about 4 feet in every 100. At Forty-Sixth street on the west track, which carried the south-bound cars, was a "safety stop," where it was the rule and custom for cars coming south to come to a standstill before starting down to the crossing at the boulevard. Plaintiff was going west on Brush Creek Boulevard in an automobile with his 18 year old son seated by him on his right. According to their testimony, as their automobile approached the track it was slowed down to three or four miles per hour, and when in the neighborhood of 12 or 15 feet from the first rail, that is, the east rail of the east track, they looked north and could see past Forty-Sixth street for a distance of 75 or 100 feet, but saw no car; that they looked south and saw a northbound car just starting to move from its stop at Forty-Seventh street. Knowing they had plenty of time to cross before it could reach them, they proceeded across the tracks. The rails were slightly above the street, and the crossing was rough, so that they proceeded slowly. Just as the front wheels of their machine reached the east rail of the west track, they looked north again, and saw a car coming from the north at a speed of 40 to 45 miles an hour and only 60 feet away. Realizing that he did not have time to cross, and that the street car could not be stopped, plaintiff turned his machine south in the endeavor to escape. The car, however, struck the right-hand corner or wheel of the automobile, and, whirling it around till its front end faced north, jammed the automobile between the street car and a tree near the track, crushing the automobile, but, strange to say, doing no injury to its occupants. When the street car stopped, the automobile was wedged between the car and the tree, and the street car could not be moved forwards or backwards until the automobile was removed. Plaintiff was well acquainted with the safety stop and with the duty and custom of the cars to observe it, having traveled the boulevard and also the street cars daily for a long time. His case was submitted upon only two of the charges of negligence contained in the petition. They were that on this occasion the operator of the southbound car negligently failed to observe and make the safety stop required at Forty-Sixth street, and also negligently ran his car at a high and dangerous rate of speed downgrade to the crossing. Plaintiff's theory is that he looked north for at least 75 or 100 feet north of, or beyond, the safety stop and saw no car, and, knowing of the duty to stop there, he proceeded to go across, turning his attention to the car south of him at Forty-Seventh street, and not looking north again till his machine reached the first rail of the west track, when he looked north and saw a car only 60 feet away and coming at a high speed, making it too late for him to either get across or otherwise escape.

After a careful study of the record we are unable to agree with defendant's contention that the evidence conclusively shows plaintiff was guilty of contributory negligence. It is true one cannot approach a railroad crossing, a place of known danger, and, after looking once from a point of safety to ascertain if a car is coming and seeing none, pay no further attention to his safety and proceed blindly across, trusting to the railroad operatives to obey their orders and the rules of the road. If that were the facts conclusively shown in this case, we would hold that plaintiff is not entitled to recover. But there are many circumstances in evidence tending to rebut the idea that plaintiff failed to exercise the care of an ordinarily prudent man in his situation. He looked north and then south. He observed no car north of him, and says none was in sight, but there was one south of him, and he proceeded across the track watching the south car until he reached the first rail of the west track, when he discovered the north car coming at high speed only 60 feet away. Defendant says plaintiff must be convicted of contributory negligence, as matter of law, because he did not continue to keep his eyes to the north and discover the approach of the car from that direction while he was traveling from a point 15 feet east of the east rail to the east rail of the west track, which, according to the distances between the rails and between the two tracks, was 25 feet. According to the different rates at which the automobile and the car were going, the car was traveling 65¾ feet per second, while the automobile was traveling 5 and a fraction feet. And in the five seconds it took the automobile to go from its point of safety to a point of danger the car traveled 328 feet. So that, adding the 60 feet the car was away when it was discovered, the car was 388 feet from the crossing when plaintiff started to go across, watching the south car and having failed to see the north car. According to defendant's evidence Forty-Sixth street was 388 feet away, while according to plaintiff's evidence it was not so far away as that. If plaintiff's distance be correct, then the street car was not in sight, since he testified he could not see over 75 or 100 feet beyond Forty-Sixth street; but if defendant's evidence as to the distance of Forty-Sixth street be accepted as correct, the car was at the safety stop and in sight, or could have been seen approaching it and before that point was reached. But, even if plaintiff, when he looked north to the safety stop, could have seen the car beyond that point, is he to be deemed guilty of contributory negligence as a matter of law because he failed to discover it, or because he then proceeded across with his attention directed to the other car coming from the south to see that it would not catch him? Was he negligent, under such circumstances, in not continuing to look north, or in not poking again sooner than he did, especially when he had a right to expect that a car coming from that direction would make the safety stop before starting down to the crossing and would not come at a high rate of speed? Can it be said that an ordinarily prudent man would not have gone across under those circumstances even if he had seen the north car that far away and had known it was there? As he 'had looked north when 15 feet from the first track and saw no car, there was nothing to lead him to think there was danger from that source, while there was a car south of him demanding his attention and a somewhat rough crossing requiring him to go slowly. And there would have been no danger had the safety stop been observed and the excessive speed been absent.

In Schafstette v. St. Louis, etc., R. Co., 175 Mo. 142, loc. cit. 150, 74 S. W. 826, the Supreme Court refused to say that a huckster was guilty of contributory negligence because he drove upon or near the track when a car was a block and a half away, although in that case he saw the car and knew it was there. Of course" that was a case based upon the humanitarian rule, and plaintiff could have recovered even though he was negligent. But the remarks of the court show that under the circumstances it was not negligence as matter of law for a person to attempt to cross that far ahead of a car. In Linder v. St. Louis Transit Co., 103 Mo. App. 574, loc. cit. 581, 77 S. W. 997, the St. Louis Court of...