State v. Bland

• Decision Date: 09 February 1922
• Docket Number: No. 22598.,22598.
• Citation: 237 S.W. 1018
• Parties: STATE ex rel. HINES, Director General of Raliroads, v. BLAND et al., Judges.
• Court: Missouri Supreme Court

237 S.W. 1018

STATE ex rel. HINES, Director General of Raliroads, v. BLAND et al., Judges.

No. 22598.

Supreme Court of Missouri, in Banc.

February 9, 1922.

Certiorari by the State, on the relation of Walker D. Hines, Director General of Railroads, against Ewing C. Bland and others, as Judges of the Kansas City Court of Appeals, to review a judgment of the respondents which affirmed a judgment for the plaintiff in the case of William 3. Sandry against Walker D. Hines, Director General of Railroads (226 S. W. 646). Opinion of the Court of Appeals quashed.

J. G. Trimble, of St. Joseph, and Campbell & Ellison, of Kirksville, for petitioner.

W. F. Frank and J. E. Rieger, both of Kirksville, for respondents.

GRAVES, J.

Certiorari to Kansas City Court of Appeals. In this court there pended and later was determined the case of William 3. Sandry, Respondent, v. Walker D. Hines, Director General of Railroads, Appellant, 226 S. W. 646. Such case was an appeal from a verdict and judgment of the circuit court for $5,000 in favor of the plaintiff there, and respondent in the Kansas City Court of Appeals, the judgment of the lower court was affirmed, and this opinion in the instant proceeding by certiorari is alleged to be contrary to the last controlling opinion of this court.

This court was sufficiently impressed with the contention of relator that we issued our writ of certiorari, and thereafter, upon due return having been made, the cause was briefed and argued, first in division 2 of this court, and later before this court in banc. The pertinent evidentiary facts found by the Court of Appeals are thus stated in the opinion of that court:

"The facts show that on June 14, 1919, there was a collision between an automobile driven by plaintiff and an unattached railroad engine operated by the defendant, resulting in plaintiff's injury. The injury occurred at what is known as Capp's Crossing in Adair County. At the point of injury defendant's railroad runs east and west, and the public road upon which plaintiff was driving runs north and south. Plaintiff lived about a mile and a half southwest of the crossing. On the morning of the injury he was driving to Novinger in a Ford car. He approached the crossing at the rate of speed of about ten miles per hour. He began looking for a train when he reached a point about 400 feet south of the crossing, at which time he looked northwest. He stated that trees, brush, and weeds obstructed his view to the east. He continued looking in a westerly direction for some distance, and then looked east, but could see nothing. He saw that Mr. Lewis, a passenger in the car, was looking east. He then looked west and continued looking west until he reached the railroad right of way 50 feet south of the tracks. He then looked east, and Mr. Lewis looked west, but on account of weeds obstructing plaintiff's view he could not see eastwardly down the track until be `got right close to the track,' requiring him to continue looking east until he arrived practically on the track before he could see toward the east. When he arrived on the track he looked west and for the first time saw the engine 45 to 60 feet away.

"The engine struck the left hind wheel of the automobile, the remainder of the car being clear of the track and engine at the moment of the impact. The growth of brush and weeds on the west side of the public road was of such height and density as to totally obstruct plaintiff's view to the west until he reached the railroad right of way. From the railroad right of way to a point within a foot and a half of the railroad ties there was a dense growth of weeds such as would obstruct plaintiff's view to the west until he reached a point 18 or 20 feet from the track. There was a cut 150 yards west of the crossing; from the cut to the crossing there was an embankment 10 to 12 feet in height beginning at the east end of the cut and sloping to 5 or 6 feet in height at the crossing. There was a clump of trees close to the track 100 to 150 feet west of the crossing, which obstructed the view of the track to the west of the trees. Plaintiff testified that he could have seen the top of the engine from the time he entered the right of way. Plaintiff looked and listened continuously from a point about 400 feet south of the track until he saw the engine. There was no bell rung or whistle sounded. The engine approached the crossing going at the rate of speed of about 20 miles per hour.

"During the 50 feet of space that he traversed from the beginning of defendant's right of way to the point where he looked west he was proceeding at a rate of speed from 6 to 10 miles per hour. In approaching the right of way he had been driving at the rate of 10 miles per hour, but at a point commencing with the right of way he began to slow down to cross the crossing, and when he reached the track he was proceeding at the rate of 6 miles per hour. While traversing the last fifty feet he was going slightly up hill and could have stopped the car in 5 or 6 feet. It was his duty to look to the east as well as to the west. He no doubt relied somewhat upon Lewis, who was looking west. Plaintiff's view to the east was obstructed, and he continued to look in that direction from a point 50 feet south of the track until he could get a view of the track to the east, which was at about the point where he drove upon it."

The foregoing will suffice for the discussion of at least one vital question in the case. If other questions are necessary, the pertinent facts can be drawn from the opinion.

I. The least that the law demands of one approaching a railroad crossing is the exercise of ordinary care and prudence for his own safety, and this is required, although the railway company may be guilty of negligence. These crossings are signals of danger to the traveler upon public highways. Burge v. Railroad, 244 Mo. loc. cit. 94, 148 S. W. 925.

One approaching a railroad crossing knows that he is approaching danger, and must act in accordance with that knowledge, and in accordance with the rule of ordinary care, to protect himself from danger. What is ordinary care upon his part under one state of facts might not be ordinary care under other and different facts. If objects obstruct his view, or noise interfere with his hearing, his conduct must meet these conditions before he has exercised ordinary care for his own protection under the circumstances surrounding him. "What may be deemed ordinary care in one case, under different surroundings and circumstances, may be negligence." 20 R. C. L. p. 24, and cases cited.

So, too, the same authority in discussing contributory negligence, at page 115, says:

"The degree of care depends upon the circumstances, and is measured by the diligence that prudent persons generally exercise under the same conditions and surroundings."

The surroundings in this case called for vigilance upon the part of plaintiff. They were such as called for, not only the exercise of his sight and hearing, but as to require him to at least approach the crossing with his automobile under such control, and run at such speed, that it could be readily stopped upon the first appearance of danger. As said railroad crossings have long been held to be signals of danger to the traveler upon the highway, and if obstructions add to this danger, ordinary care for self-protection requires a commensurate care upon the part of the traveler. These are but general observations as to fixed rules, and rules most thoroughly recognized in the jurisprudence of Missouri. There may be such surrounding facts as not only to require the approaching traveler to both look and listen, but to actually stop before venturing upon a crossing. This, however, we need not rule in this case.

II. The vital point in this case is the alleged conflict between the ruling of the Court of Appeals and our ruling in Kelsey v. Railroad, 129 Mo. 362 loc. cit. 372, 30 S. W. 339. In the Kelsey Case we reversed the judgment outright....