State ex rel. Kansas City Southern Ry. Co. v. Shain

• Decision Date: 05 June 1937
• Docket Number: 34500
• Citation: 105 S.W.2d 915,340 Mo. 1195
• Parties: State of Missouri at the relation of Kansas City Southern Railway Company, a Corporation, Relator, v. Hopkins B. Shain, Francis H. Trimble and Ewing C. Bland, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

105 S.W.2d 915

340 Mo. 1195

State of Missouri at the relation of Kansas City Southern Railway Company, a Corporation, Relator, v. Hopkins B. Shain, Francis H. Trimble and Ewing C. Bland, Judges of the Kansas City Court of Appeals

No. 34500

Supreme Court of Missouri

June 5, 1937

Opinion filed at September Term, 1936, April 21, 1937; motion for rehearing filed; motion overruled at May Term, June 5 1937.

Writ quashed.

Cyrus Crane, J. F. Walsh, W. H. Woodson and D. C Chastain for relator.

The Court of Appeals erred in holding that plaintiff is entitled to recover damages from the defendant. (a) Respondents in their brief advise this court that "the situation existing at the time and place of the accident was a very unusual and unexpected one," and that such condition was confined to "that part of the road immediately next to and west of the crossing." This statement, we think shows conclusively that the plaintiff was not entitled to recover in this action. The alleged screen of swirling snow, which is conceded to have been an unusual and unexpected phenomenon, was local to a point immediately west of the crossing, and defendant would not be negligent in failing to guard against such a condition, in the absence of proof that the swirling snow was a continuing condition, and that defendant's employees knew, or in the exercise of due care should have known, of it. The record is silent as to any such proof. (b) We contend that it is conclusively established, from the facts shown in the opinion of the Court of Appeals, that either the plaintiff negligently failed to see the standing car on the crossing and was therefore negligent in his approach to the crossing, or that if it was impossible for him to see on account of existing conditions, he was negligent in attempting to go upon this crossing, knowing that he was about to enter upon it, and knowing that he could not see what, if anything, was on the crossing. The finding of the Court of Appeals also convicts the plaintiff of negligence in the operation of his car after he brought it to a near stop at a distance of ten or twelve feet west of the crossing, in that the car was then started and driven with such force that in that short distance the collision resulted in the car being wedged under the freight car, and resulted in the crushing of the marble ball on the gear shift lever on which the plaintiff had his hand. This shows conclusively that the automobile was negligently started and operated by the plaintiff. We further call the attention of the court to the fact that the Court of Appeals found that the sky was clear overhead and while the court said that the night was not a bright one, this court will take judicial notice of the fact (Dodge v. City of Kirkwood, 260 S.W. 1012) that the moon was only four days past being full, that it had risen at 8:17 P. M., and as the collision occurred between 11:00 P. M., and 12:00 P. M., there was a near full moon which had been up three or four hours.

Cowgill & Popham and John F. Cook for respondents.

The failure of the Kansas City Court of Appeals to hold that plaintiff was guilty of contributory negligence as a matter of law does not place its opinion in conflict with any controlling decisions of this court. Cech v. Mallinckrodt Chem. Co., 20 S.W.2d 509. One injured in the nighttime by reason of a defect or obstruction on the highway, the danger of which he did not know and could not, in the exercise of due care, have seen in time to have avoided the injury, is not guilty of contributory negligence as a matter of law. Roper v. Greenspon, 198 S.W. 1106, 210 S.W. 922; Powell v. Schoenfield, 15 S.W.2d 876; Ross v. Hoffman, 269 S.W. 679; Plater v. Kansas City, 68 S.W.2d 800; Plater v. Mullins Const. Co., 17 S.W.2d 658; Munden v. Kansas City, 38 S.W.2d 540; Hendrick v. Kansas City, 60 S.W.2d 704; Megson v. St. Louis, 264 S.W. 23. The rule that one must drive his automobile at a speed within which it can be stopped in time to avoid any obstruction within the space illuminated by his headlights, regardless of all conditions and circumstances, does not apply in this State. Sheffer v. Schmidt, 26 S.W.2d 592. And even in the states where said rule is enforced, it is a well recognized exception to the rule that plaintiff's contributory negligence is for the jury if the atmospheric and other conditions are such that the plaintiff might not have been able to see the obstruction in time to have stopped. Hayden v. Cooper Transit Co., 134 Kan. 172, 5 P.2d 837; Conwill v. Fairmount Creamery, 136 Kan. 861, 18 P.2d 193; Womachil v. Lisk & Clark Const. Co., 195 Kan. 6, 11 P. 731; Williams v. Kansas City, 134 Kan. 810, 9 P.2d 946.

Ellison, J. Douglas, J., not voting because not a member of the court when cause was submitted; Frank and Hays, JJ., concur in result; Gantt, Leedy and Tipton, JJ., concur.

OPINION

ELLISON

Certiorari to quash the record of the Kansas City Court of Appeals made in the case of Linvill Adams, plaintiff v. Kansas City Southern Railway Company, a corporation, defendant, lately pending in that court on appeal.

The plaintiff recovered a verdict which the trial court set aside and granted a new trial on the ground that defendant's demurrer should have been sustained at the close of all the evidence. On plaintiff's appeal the Kansas City Court of Appeals reversed the order made below and remanded the cause with directions to the trial court to reinstate the verdict and enter judgment thereon. We give the facts substantially as they are stated in the opinion of the Court of Appeals, omitting quotation marks.

Plaintiff sued for personal injuries sustained by him and for loss arising from the destruction of his automobile, both caused by the automobile's crashing into a freight car negligently allowed by defendant to stand unguarded and with no warning lights for an unlawful length of time, on defendant's crossing over and upon State Highway No. 52 in the town of Amoret, a town having less than 10,000 inhabitants.

The injury occurred sometime between 11:00 o'clock P. M. and midnight of November 17, 1932, as plaintiff was traveling eastwardly in his automobile on said highway. The railway ran north and south across said highway at or near the western edge of the town, where the same is greatly used by the general public day and night; said highway being paved with gravel, and being the main road through the town, which had a population of something slightly over three hundred. The highway is downgrade as it approaches the crossing from the west; and on the night of the accident, that part of the road immediately next to and west of the crossing, consisting of loose gravel, was mixed with fine snow which had fallen during the day.

As plaintiff, a young man about twenty-two years of age, was approaching the crossing on his way home after calling on a young lady, the wind was blowing and the whirling snow and dust rendered the obstructing freight car difficult to be seen and the atmosphere was of a grayish color. The lights of plaintiff's car, which were of the standard make and height from the ground, were shining, and illuminated the roadway about one hundred yards ahead under normal conditions; but under the conditions stated, and because of the height at which the lights are placed on the car, the angle at which they are pointed, and the slope of the ground over which the automobile was approaching the crossing, only objects close to the ground were clearly illuminated at a distance of fifteen or twenty feet ahead of the automobile. The freight car was sitting across the roadway, with the wheels of its front end on one side of the graveled road and those of its other end on the other, the freight car thus "straddling" the traveled portion of the highway, so to speak. Thus the portion of the stationary freight car, immediately over the traveled part of the highway, was somewhat, perhaps three feet, above the ground.

As plaintiff approached the crossing and was about one hundred feet west of it, he slowed down to about fifteen miles per hour. He knew the railroad crossing was there, but no stationary freight car or train was revealed or could be seen. He looked both to the right and left to see if any train was aproaching from either side, and seeing none, he continued to approach the crossing slowing down, as he approached, to about seven or eight miles per hour until he was about ten or twelve feet from the crossing. He still saw no freight car on the crossing and no train was approaching and his automobile was "almost still." He then "stepped on the accelerator to go across the track. When I got within a distance of five or six feet, I saw the outline of something, and I slammed on the brakes as soon as I could."

"Q. What happened then? A. I crashed into the train (meaning, of course, the freight car; the evidence shows that the hood and engine of the automobile was forced under the freight car as far as to the cab). Q. At the time you slowed down, as you described, and then put your gas on, did you know there was any (freight) car standing on that track? A. No, sir. Q. I want you to tell the jury which way you were looking as you came on up to that (freight) car? A. I was looking straight ahead."

By the impact the front of the automobile to about halfway of the length of the engine was wedged under the freight car. The plaintiff was seriously injured and the automobile considerably damaged.

There was evidence that this northbound freight train which blocked the crossing had been standing motionless on that track waiting for the southbound passenger train. There was ample evidence to show that the freight car was left standing much longer than that permitted by Section 4830, Revised Statutes 1929 (Mo. Stat....