The Missouri Pacific Railway Co. v. Chicago Great Western Railway Co.
| Decision Date | 02 February 1903 |
| Citation | 71 S.W. 1081,98 Mo.App. 214 |
| Parties | THE MISSOURI PACIFIC RAILWAY COMPANY, Respondent, v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
AFFIRMED.
Judgment affirmed.
Arthur F. Smith, Edward C. Wright and Frank Hagerman for appellant.
(1) The court below erred in granting a new trial on the grounds stated. 3 Elliott on Railroads, sec. 1133; Railroad v Holmes, 3 Wash. Terr. 543; 18 P. 76; Continental Co v. Stead, 95 U.S. 161; Railroad v. Electric, 60 N. J. L. 52; Watson v. Railway, 53 Minn. 551; Railroad v. Hatch, 79 Ill. 137; Haas v. Grand Rapids Co., 47 Mich. 401; Railroad v. Cody, 166 U.S. 606; Railroad v. Storewell, 126 Ind. 35; Karle v. Railroad, 55 Mo. 476; Hicks v Railroad, 64 Mo. 430; Harlan v. Railroad, 65 Mo. 22; Frick v. Railroad, 75 Mo. 595; Welsch v. Railroad, 72 Mo. 451; Swearengen v. Orne, 8 Mo. 707; Homuth v. Railway, 129 Mo. 629; Whitehead v. Atchison, 136 Mo. 485; Bartley v. Railway, 148 Mo. 124; Martin v. Block, 24 Mo.App. 60; McCollough v. Insurance Co., 113 Mo. 606; Powell v. Railroad, 59 Mo.App. 335; Administrator v. Railroad, 99 Va. 804; Tyree v. Harrison, 42 S.E. 295.
Elijah Robinson for respondent.
(1) If for any of the reasons assigned in the motion for new trial the verdict should have been set aside, this court will affirm the ruling of the trial court. Ittner v. Hughes, 133 Mo. 679; Hewitt v. Steele, 118 Mo. 463; Bank v. Armstrong, 92 Mo. 265; State ex rel. v. Adams, 84 Mo. 310; Powell v. Railway, 59 Mo. 335; Lovell v. Davis, 52 Mo.App. 342. (2) The trial court has a large discretion in granting a new trial where it is alleged that the verdict is against the weight of the evidence, and this court will not interfere with the action of the trial court in setting aside a verdict unless it clearly appears that its discretion has been arbitrarily and unreasonably exercised. Bemis Co. v. Com. Co., 74 Mo.App. 627; Chouquette v. Railway, 152 Mo.App. 257; Wright v. Railway, 20 Mo.App. 481; Reid v. Ins. Co., 58 Mo. 421; Lionberger v. Pohlman, 16 Mo.App. 392; Bank v. Armstrong, 92 Mo. 265; State v. Young, 110 Mo. 495; Hull v. Railway, 60 Mo.App. 539; McKay v. Underwood, 47 Mo. 185; Lawson v. Mills, 130 Mo. 170; Dean v. Fire Assn., 65 Mo.App. 209; Lockwood v. Ins. Co., 47 Mo. 50; McCullough v. Ins. Co., 113 Mo. 606; Taylor v. Railroad, 163 Mo. 183; Taliaferro v. Evans, 160 Mo. 380. (3) Defendant's instruction No. 3 was erroneous, and for that reason the verdict should have been set aside.
The plaintiff's cause of action is substantially as follows: That on the 30th day of December, 1899, an engineer of defendant in charge of its passenger locomotives, and while hauling one of its passenger trains, negligently ran said engine into and against one of plaintiff's engines, thereby greatly damaging the same; that said injury was inflicted within the corporate limits of Kansas City, Missouri, at a point where one of plaintiff's tracks crosses the track of what is known as the Kansas City Belt Railway Company, then being used by the defendant. The act of negligence is charged as follows, viz.: "That defendant's said engineer, in charge of its said engine, which struck and injured plaintiff's engine as aforesaid, should have stopped said engine before reaching said crossing, as by custom, common prudence and law he was required to do, but he negligently and carelessly failed to do so; that as he approached said crossing where said accident occurred, and at the time of said accident, he was running defendant's said engine at a rapid and reckless rate of speed, that is, at a speed of not less than fifteen miles an hour, which rate of speed was, under the circumstances and surroundings, negligent and dangerous, and was also in violation of an ordinance then in force in said city of Kansas City." Plaintiff then sets out said ordinance, after which it further alleges: "And that said engineer in charge of defendant's said engine either saw plaintiff's said engine at said crossing in time to have stopped defendant's engine and thereby avoided said accident, or negligently failed to look ahead of him, as he should have done, but which of the two is true, plaintiff is unable to state."
The defendant's answer was a general denial, and other allegations constituting negligence on the part of the plaintiff which contributed to the collision, substantially as follows: That plaintiff at the time of the alleged collision was obstructing a street of said city in violation of a certain ordinance thereof; that plaintiff's servants at the time knew that defendant's train was due at the point where the collision occurred, or by the exercise of ordinary care might have so known, but negligently failed to exercise their knowledge of the said fact or the means of ascertaining it, which omission upon their part was the cause of said accident; and that plaintiff negligently failed to prescribe rules for the use of its track crossing that of the defendant for its own protection, which omission of duty directly contributed to its injury.
The finding was for the defendant which the court, on motion, set aside; from which action of the court in setting aside said finding defendant appealed.
On the trial the accompanying crude diagram was used which may, to some extent help to an understanding of the case:
[SEE ILLUSTRATION IN ORIGINAL]
From the diagram and other evidence it appears that in the vicinity of the accident the plaintiff's track and that of the Belt Line are nearly parallel, running north and south, the track of the latter being south of the former; that a short distance south of the Belt Line track is situated the Union elevator; that the plaintiff at the time in question had a switch track running from its said parallel track from a point almost due north of, and south to said elevator, passing in its course over said Belt Line track that at the time of the occurrence it had backed a train of its cars from its parallel line over said switch track to said elevator; and that its train was of such length that it could not all be placed entirely south of the Belt Line track, but when it became stationary the front part of the engine reached over at least a part of the latter's track and was in this position when it was struck by the defendant's engine attached to its passenger cars going backward east at a rate of speed of about fifteen miles or more an hour. It appeared that the Belt Line track from the point where it crossed plaintiff's switch track was almost straight for a distance of six hundred feet west, but that cars obstructed the view of plaintiff's engineer except for a short distance; and that beyond this distance plaintiff's engineer saw the smoke from defendant's engine and whistled a warning and that it came within the six hundred feet distance and gave another warning and later another. Defendant's engineer, however, states that he did not see plaintiff's engine until it was too late to stop his, although he made an effort to do so when he discovered it on the crossing. There was what is known as a semaphore placed near the scene of the accident on said line which is used to denote when its track was clear or otherwise. When the arm on this structure stands horizontally on the upright on which it is placed it indicates that the track is not clear, and when it is depressed it indicates the contrary; but it appeared that the usual signs placed indicating the crossings of railroads were not up at the crossing under consideration. The evidence showed that the plaintiff used the track to the elevator mentioned from one to five times each day. The ordinances pleaded by the respective parties were not in evidence. The time plaintiff's engine was in the position named before it was struck by that of defendant's was not exceeding five minutes. The defendant's excuse for the rapid rate of speed of its train was for the purpose of getting headway in order to overcome a steep grade on the track as it approached Walnut street further on. The defendant's engineer paid no attention to the semaphore in question because it was on the wrong side of the track to indicate anything whatever to a train going east. It appears that the water tank which was in front of him, his engine going...
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