Tate v. Missouri-Kansas-Texas Ry. Co.

• Decision Date: 23 April 1936
• Docket Number: 33661
• Citation: 93 S.W.2d 873
• Parties: TATE v. MISSOURI-KANSAS-TEXAS
• Court: Missouri Supreme Court

93 S.W.2d 873

TATE v. MISSOURI-KANSAS-TEXAS

No. 33661

Supreme Court of Missouri, Second Division

April 23, 1936

R. M Sheppard, of Kansas City, and H. A. Gardner, of Monett, for appellant.

Carl S Hoffman, of St. Louis, and A. E. Elliott, of Nevada, Mo., for respondent.

OPINION

WESTHUES, Commissioner.

Appellant, widow of J. E. Tate, brought this suit to recover damages in the sum of $ 10,000, against respondent, for the death of her husband, alleged to have been caused through respondent's negligence. The trial court, at the close of the case, directed a verdict for respondent. From a judgment entered appellant appealed.

The collision which resulted in the death of J. E. Tate occurred in Coffeyville, Kan. Suit was filed in the circuit court of Vernon county, Mo. Under the pleadings the laws of Kansas must govern in this case. Tate was a street car motorman employed by the Union Traction Company of Coffeyville. The tracks of the car company and those of respondent crossed at grade on Eldridge Street, the point of the collision. Respondent's tracks ran north and south, and those of the car company east and west. The railroad tracks extended south from the crossing in practically a straight line for about 2,000 feet. A train going north could be seen at that distance from the crossing. At this point there was a double track, consisting of a main line and a passing or side track. The main line was located to the east. There was also a spur track located to the west of the double track, beginning about 200 feet south of the crossing and connecting with the other tracks at a point further south. The collision occurred about 3 p. m., April 11, 1932. A train, consisting of an engine and four freight cars, was traveling north on the main line track. Tate, operating a street car 30 feet in length, was traveling east. The train struck the street car when the car was in the center of the main line of the railroad track, resulting in the death of Tate.

The negligence alleged in the petition as the cause of the collision was excessive speed and failure to sound the statutory warning signal.

If the evidence, viewing it in its most favorable light to appellant, made a case for a jury, then the action of the trial court in sustaining a demurrer was erroneous. There was some conflict in appellant's evidence with reference to the speed of the train, the location of cars on the side or passing track, and the distance from the track to where Tate stopped his car, prior to the collision, to ascertain if a train was approaching. We will state the facts most favorable to appellant, as related by the witnesses. There was substantial evidence that the train was traveling 50 to 55 miles per hour, that trains usually passed through the city at a rate of speed of about 30 miles per hour, and that a city ordinance prohibited trains from running in excess of 12 miles per hour. Appellant introduced evidence that the warning signals, required by the statutes of Kansas to be given when approaching crossings, were not given on this occasion by the operators of the train. Witnesses testified that the street car was traveling at a speed of about 2 miles per hour, or about as fast as a man walks. A witness testified that the car could have been stopped instantly when traveling at that speed, and if traveling from 4 to 5 miles per hour it could have been stopped within 2 or 3 feet. The only evidence with reference to the distance needed to stop a train, such as figured in the accident, was that at a speed of 30 miles per hour it would require 700 feet to make a full stop, and at 50 miles per hour 1,400 to 1,500 feet.

What occurred at and immediately prior to the collision was described, by a witness for plaintiff, as follows: 'I was at home and the first information I had of the accident was short blasts of the whistle, three or four quick whistles, and then immediately, almost at the same time, the crash. I was behind the house and I first saw the train when the engine was about 50 ft. over the crossing. It was a short train, consisted of three cars and a caboose. I don't believe I could estimate the speed, but it was going awful fast and carried the street car on the cowcatcher about 800 feet. It was going faster than any passenger train when I saw it. I didn't hear any signals before the short blasts.' The evidence of this witness was corroborated by a number of other witnesses testifying for appellant. Other witnesses testified that Tate stopped his car about 20 or 25 feet west of the passing track, which would be about 35 or 40 feet west of the main line track; that Tate walked to the main line track, looked both ways, and then went back to his car; that he then approached the tracks with the car, at a speed of about 2 miles per hour, and when he reached the center of the track was struck by the train. Plaintiff's Exhibits a and b are photographs of the location and may aid in understanding the situation. We are, therefore, filing a copy with this opinion:

The exhibits are for all intents and purposes the same. It is difficult to notice a difference. Either exhibit will illustrate the situation. The camera was facing south when the picture was taken. The track to the right in the photograph is the passing track. The box car in the picture is standing on a spur track located about 200 feet south of the crossing. The train which struck the street car was traveling north on the track to the left or east. Plaintiff introduced evidence that a string of cars was standing on the passing track and the car nearest the crossing was located about one hundred feet to the south.

Under the statutory law of Kansas, it was Tate's duty to stop his car not less than 10 and not more than 20 feet from the railroad crossing and ascertain if a train was approaching. We will assume for the purpose of this opinion that Tate complied with this statutory duty. Was tate guilty of negligence, as a matter of law, in driving upon the railroad track, in view of the physical facts, as disclosed by the evidence, and taking into consideration that cars were standing upon the side or passing track? There was a curve in the tracks about 2,000 feet south of the crossing. A person standing, or in a car, 10 to 20 feet west of the crossing could see a train approaching from the south for a distance of at least 2,000 feet, unless his view was obstructed by cars upon the side track. The space between the main line and the passing track was about 10 feet. It is evident from the physical facts, therefore, that when Tate, in the vestibule of the car, as motorman, reached the east rail of the passing track, or a foot or two beyond that point, he had a clear view for 2,000 feet or more of the main line track to the south. Tate was then not in a position of danger from trains on the main line track. He had the means at hand to have stopped his car instantly. At a rate of 2 miles per hour it would have taken the car about 9 seconds to go from the point where Tate had a clear view of 2,000 feet down the track to the point of the accident. The train must have been in plain view and less than 800 feet away, even if traveling at 50 or 55 miles per hour. These facts are indisputable under the evidence. The following evidence of plaintiff's witnesses coincides with the physical facts:

P. T. Martin testified:

'Q. But any place in this 10 or 12 feet between the two lines of track, that is, between the main line track and side track, if he had looked down to the south, he had an unobstructed view of a third of a mile? A. Looking down the main line he could see about four blocks, I would think he could.'

A. G. Anderson testified as follows:

'Q. By a block you mean about 350 feet? A...