Smith v. St. Louis Southwestern Ry. Co.

• Decision Date: 12 September 1930
• Docket Number: No. 4775.,4775.
• Citation: 31 S.W.2d 105
• Parties: SMITH v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Missouri Court of Appeals

31 S.W.2d 105

SMITH v. ST. LOUIS SOUTHWESTERN RY. CO.

No. 4775.

Springfield Court of Appeals. Missouri.

September 12, 1930.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

"Not to be officially published."

Action by Jack Smith, by J. L. Bell, his next friend, against the St. Louis Southwestern Railway Company. From a judgment in favor of plaintiff, defendant appeals.

Reversed and remanded.

Carter, Jones & Turney, of St. Louis, and Wammack, Welborn & Cooper, of Bloomfield, for appellant.

Ely & Ely of Kennett, for respondent.

COX, P. J.

Action for damages for personal injury. Plaintiff recovered, and defendant appealed.

The alleged injury was received as a result of a train of defendant striking an automobile driven by plaintiff in the city of Campbell, in Dunklin county, Mo. The railroad tracks run northeast to southwest through the city of Campbell. The crossing where the accident occurred is on Vine street, the third street crossing northeast of the depot. Plaintiff and a companion drove north or northeast on the west side of the railroad until they reached Vine street, four blocks from the depot and then turned to the right to cross the railroad track. As they neared the crossing, a freight train was passing toward the depot on a switch track east of the main track. Plaintiff, who was driving the car, stopped and waited for the freight train to pass. When it cleared the crossing, plaintiff went forward, driving very slowly, about two or three miles per hour, and, just before his car cleared the main track, a passenger train approaching from the depot, going at the rate of twelve to fifteen miles per hour, struck the automobile at the rear when it had almost cleared the track, and caused the injuries of which complaint is made. There were four tracks of the railroad at this point. One switch track was west of the main track, and there were two switch tracks east of the main track. The location of the west switch track in relation to the main track is the only one of importance here. There was a distance of nine feet between the east rail of the west switch track and the west rail of the track of the main line on which the passenger train traveled and on which the collision occurred. The rails of the track were four feet eight inches apart. On the west of the west switch track, and some distance south of Vine street where the accident occurred, was a large building located very close to the switch track, and north of this building there were two freight cars standing on the switch track. It was twenty feet from the south line of Vine street to the north end of the nearest car on the switch track. This car projected from the rails on the switch track two or three feet, so there were only about six or seven feet between the east edge of the freight car and the west rail of the main track on which the passenger train approached the Vine street crossing. The track was straight, and the building mentioned above and the freight cars standing on the switch track obstructed the view of plaintiff as he approached the track so that he could not see the approaching train until he passed the freight car on the switch except as he might see it from the twenty feet between the end of the freight car and Vine street and the distance his view would be extended from the main track being a short distance east of the switch track. Plaintiff testified that at the rate he was driving, two or three miles per hour, he could stop the automobile almost instantly and within one or two feet. It was from three to four and one-half feet from plaintiff's head to the front of the automobile. Plaintiff did not see the passenger train until his head, as he sat in the automobile, was in the center of the main track, and the train was then ten to fifteen feet from him.

The facts above stated were shown by plaintiff's witnesses. At the close of plaintiff's evidence, appellant filed a demurrer thereto, which was overruled and one contention on this appeal is that the demurrer to plaintiff's evidence should have been sustained. Appellant did not stand on its demurrer, but introduced several witnesses also. We do not find, however, that defendant's evidence strengthened plaintiff's case, and hence the demurrer rests on plaintiff's evidence alone. Appellant contends that plaintiff's evidence shows as a matter of law that he was guilty of contributory negligence. The negligence alleged against appellant is the violation of a speed ordinance of the city of Campbell which limited the speed of trains to five miles per hour within the city limits, and failure to ring the bell or sound the whistle of the engine or give other warning of the approach of the train to the crossing. There was evidence tending to sustain these charges of negligence, and, unless plaintiff was guilty of contributory negligence as a matter of law, the court did not err in submitting the case to the jury. Giving plaintiff the benefit of the most favorable inference to be drawn from...