Stepham v. Chicago, B. & Q. R. Co.

• Decision Date: 05 November 1917
• Docket Number: No. 12381.,12381.
• Citation: 199 S.W. 273
• Parties: STEPHAM v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Court of Appeals

199 S.W. 273

STEPHAM v. CHICAGO, B. & Q. R. CO.

No. 12381.

Kansas City Court of Appeals. Missouri.

November 5, 1917.

Rehearing Denied December 3, 1917.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

"Not to be officially published."

Action by Albert Stepham against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

M. G. Roberts and O. M. Spencer, both of St. Joseph, for appellant. Louis Gabbert, of St. Joseph, for respondent.

ELLISON, P. J.

Plaintiff's action was instituted to recover damages for injuries to his person and to his automobile occasioned by a collision with one of defendant's engines in the city of St. Joseph. The petition was in two counts, the first for the personal injury, and the second for partial destruction of the automobile. There was a verdict for plaintiff on each count and a general judgment rendered for the aggregate amount.

The negligence relied upon by plaintiff is that after dark defendant ran the engine along and over the streets at high speed without ringing the bell or giving other warning, and the failure of the flagman kept at the crossing to warn him. Injury to plaintiff's person and property are conceded, the defense being contributory negligence, it being insisted that the evidence on this head justified defendant's demurrer to the evidence which the trial court refused.

An examination of the record has satisfied us that the demurrer was properly refused. It is not denied that the testimony of witnesses apart from the physical facts and certain admissions of plaintiff made a case for the jury, but it is insisted that the conditions at the intersecting street where the collision occurred, together with the way in which the automobile was damaged, belie and destroy the case made by the statements of witnesses.

Plaintiff, with a companion, was traveling to the west along Mitchell avenue at the rate of near 10 miles per hour, and defendant's engine was going north so as to cross the avenue where it intersects with Fifth street at the high speed of from 40 to 60 miles per hour. No warning was given from the engine; the snow glistening under an arc light even prevented one from distinguishing the headlight of the engine. A large building and a car standing on another track, together with two telegraph poles, obstructed a view of the on-coming engine before entering into Fifth street, and the flagman (then in his box) whom plaintiff knew to be always stationed at that place gave no signal of danger. However, as plaintiff approached the first track he looked as best he could on account of the obstructions, and saw no danger. He did not stop, but proceeded to cross, having to guide his automobile over defendant's several tracks, when he found the swift and silent engine was upon him, demolishing his car and injuring him.

We have stated sufficient of the evidence in plaintiff's behalf to amply justify the action of the trial court. In view of the character of vehicle plaintiff was driving and the failure of the watchman to warn, it would be clearly unfair to deprive him of the finding of a jury on a question of his negligence. If one, in such circumstances, should be required, as a matter of law, to get out of his machine, walk ahead, and perform the duty of the flagman by looking down the tracks, the presence of a flagman would be without influence in determining the question of negligence on the part of the traveler. While it is true that the failure of the flagman to perform his duty will not wholly absolve the traveler from the duty to look out, yet the fact that a flagman is maintained and he gives no warning has its influence, and may frequently be allowed to relieve a traveler of what might otherwise have been culpable negligence. Dickson v. Railroad, 104 Mo. 491, 500, 16 S. W. 381; Wilkins v. Railroad, 101 Mo. 93, 13 S. W. 893; Edwards v. Railroad, 94 Mo. App. 36, 67 S. W. 950; McNamara v. Railroad, 126 Mo. App. 152, 103 S. W. 1093. We have been cited to a number of...