Stevens v. Thompson

• Decision Date: 08 November 1943
• Docket Number: No. 20378.,20378.
• Citation: 175 S.W.2d 166
• Parties: STEVENS v. THOMPSON.
• Court: Missouri Court of Appeals

175 S.W.2d 166

STEVENS v. THOMPSON.

No. 20378.

Kansas City Court of Appeals. Missouri.

November 8, 1943.

Appeal from Circuit Court, Cole County; Sam C. Blair, Judge.

"Not to be reported in State Reports."

Action by J. R. Stevens against Guy A. Thompson, as trustee for Missouri Pacific Railroad Company, to recover for personal injuries and property damage resulting from a collision between plaintiff's automobile and defendant's train. The jury returned a verdict for plaintiff, and from the judgment entered, defendant appeals.

Reversed and remanded.

Thomas J. Cole, of St. Louis, James A. Potter and Ira H. Lohman, both of Jefferson City, and Leon P. Embry, of California, for appellant.

H. P. Lauf and John O. Bond, both of Jefferson City, for respondent.

CAVE, Judge.

This is a suit for damages for personal injuries and property damage. The respondent here was plaintiff in the court below, and the appellant here was the defendant. The cause was tried to a jury in the Circuit Court of Cole County, resulting in a verdict for the plaintiff in the sum of $2,000, from which defendant perfected his appeal to this court.

But two assignments of error are made: (1) The court erred in refusing defendant's instruction in the nature of a demurrer at the close of all the evidence, because the evidence showed that the plaintiff was guilty of contributory negligence as a matter of law, in that: (a) "He did not stop his automobile in a place of safety so that he might learn if a train was near at hand before driving onto the railroad track;" (b) "He did not look for an approaching train at a point where looking would have been effective"; (c) "He did not listen for an approaching train"; (2) The trial court erred in giving plaintiff's instruction No. P-1, for two specific reasons.

The first assignment of error necessitates a somewhat detailed statement of the evidence, and in the most favorable light to plaintiff. Plaintiff was a man 73 years of age at the date of the injuries complained of. He lives, and has lived for 34 years, on a farm near Russellville in Cole County. The Bagnell branch of the Missouri Pacific Railroad runs in a generally north and south direction along the east side of his farm. He formerly owned the land on both sides of the railroad, but had sold the land on the east side, reserving a private road over it to afford a passageway from his home to the county road, which is located a short distance east of the railroad and approximately parallel therewith.

Travelling from the county road toward plaintiff's home, the private road runs west a distance variously estimated at from 250 to 400 feet, then turns south and runs in that direction for about 150 to 250 feet, and immediately adjacent to and parallel with the railroad right of way, then turns west again and crosses the railroad track, a single track, at right angles. It is a distance estimated at from 25 to 45 feet from the point where the private road turns west, to cross the railroad track, to the east rail of the track. The private road goes on west across the track to plaintiff's land. He had been using this crossing for more than thirty years at the time of the accident.

North of plaintiff's private crossing, there is a cut along the railroad track estimated at from 12 to 18 feet at the deepest point. On the east side of the track, the cut slopes down to the south. Plaintiff's private road crosses the track at, or near, the south end of the cut. The track north of the crossing is straight for a distance estimated at from 1,000 to 1,500 feet.

The collision between defendant's train and plaintiff's automobile occurred about noon on October 10, 1941. The day was clear and warm. He had been at the neighboring town of Russellville and was returning home in his automobile (a 1932 model Chevrolet Sedan), alone. He stopped at his mail box at the county road, got out of his car to get the mail, and then drove over the private road above mentioned, onto the private crossing where his car was struck by a south bound freight train. He did not stop from the time he left his mail box at the county road until the collision occurred, a distance of at least 500 feet.

Since defendant does not contend that the plaintiff failed to make a submissible case on primary negligence, but relies on contributory negligence as a matter of law, we will not detail the evidence fixing defendant's negligence except insofar as it may have a bearing on the question of contributory negligence.

Since plaintiff admits that he did not stop his car from the time he left his mail box until he drove onto the track, we need set out only his testimony concerning whether he looked or listened for the approaching train as he drove toward and upon the crossing. Such testimony is:

"Mr. Stevens, did you see any train on that day? A. No, sir, I didn't see or hear none.

"Q. Did you look for the train? A. Of course, I looked, but I couldn't see anything for the brush and weeds and everything else. A fellow couldn't drive a car without looking. * * * A. You would have to keep out of them ruts if you didn't want to get stuck with your car and you couldn't see the train until you got right on the tracks.

"Q. Were you looking and watching for the train? A. Of course I couldn't see back behind me. We were both going south. * * * I was at my mail box and I stopped there and got my mail. I looked up the road to see if I could see any smoke and went on.

"Q. From that place you can look and see the track itself to the north of your place? A. No, to the south but not to the north.

"Q. You can't see the track to the north? A. Its all grown up with timber.

"Q. You did not see any indications of any train? A. No, sir, nor I never heard anything.

"Q. When is the first time you saw that train that day? A. When I drove on the track. I couldn't go on or get off before it struck me. * * * I couldn't see it because of the obstruction."

On cross examination he testified:

"Q. You knew that obstruction was there that interfered with your free view when you approached that crossing? A. I guess I did.

"Q. You say the reason you didn't see was because you could not see? How long had that obstruction been there? A. Two or three years.

"Q. You knew it at the time you approached the track, when you drove toward the track? A. Yes, but what could I do about it? * * *

"Q. You tell the jury that although the view of the track was completely obstructed so you couldn't see at all and had been for three or four years, yet you drove from your mail box to the crossing without stopping your car for the purpose of looking to see if the train was coming? Is that a fact? A. Yes, I looked when I got my mail. * * *

"Q. And that was the last time you looked? A. Of course, I looked, but I couldn't see anything for the obstruction.

"Q. Did you look? A. Of course.

"Q. If you knew you couldn't see anything, why did you look? A. To see if I could see smoke or hear a whistle. A fellow ain't never going to drive a car and never look.

"Q. Did you at any time after leaving your mail box look to the north up that railway track? A. I couldn't have seen anything if I had.

"Q. And therefore I understand that you didn't look? A. I looked at my mail box. I looked to the north and didn't see anything.

"Q. Do I understand you to say that that is the last time you looked? A. I looked all the time.

"Q. Even though you couldn't have seen anything if you had looked? A. I couldn't have seen the track if I had looked. * * *

"Q. When you get in the vicinity of that crossing you are thinking about lining your car up with those ruts? A. I expect I do. I don't know about that. I try to keep out of the ruts. I expect I do.

"Q. And that is what you were watching? A. I was watching for the train, too.

"Q. Although you could not see it? A. I could see ahead of me.

"Q. You were just looking squarely ahead as you were driving west? A. Yes, I was headed west.

"Q. You were just looking in front of you? A. Yes. I could not have seen anything if I had looked.

"Q. You didn't look either way? A. I didn't until I could see.

"Q. And you could not see until you got to the tracks, is that what you tell the jury? A. That is what I say."

It is perfectly apparent from plaintiff's own testimony that he knew of this railroad crossing and of its condition; and that his view of an approaching train was obstructed. Therefore, merely looking when he knew he could not see would not be the exercise of proper care.

We now consider his testimony concerning whether he listened for the train as he approached the crossing. The record discloses that when he was first on the witness stand he testified:

"Q. Do you know whether you listened when you got to your mail box? A. I don't know. That I can't say for sure. * * *

"Q. Do you know whether you had your car windows open or closed? A. I couldn't tell. The glass was knocked out.

"Q. Did you let your windows down to hear if a train was coming? A. I always drive with one window down.

"Q. Did you that day? A. No, sir. * * *

"Q. Did you listen when you got to the track? A. I don't know whether I did or not. I didn't hear a whistle and I didn't hear a bell. I didn't hear a whistle or bell."

After plaintiff announced his case was closed, the defendant offered an instruction in the nature of a demurrer and after due consideration the trial court said: "I do not think that the plaintiff has made a case, because I think his testimony shows contributory negligence. The strongest testimony he has on listening, according to the reporter, is that he did not know whether he listened or not. He thinks he did, but he doesn't know. It strikes me that it was his duty to listen, because, as he says, the track was obstructed. If he could not see, then it was his duty to protect himself by listening. He said that he didn't know whether he listened or not. He thinks he did. I will have to give this instruction in the nature...