Trussell v. Waight

• Decision Date: 03 May 1926
• Docket Number: No. 15600.,15600.
• Citation: 285 S.W. 114
• Parties: TRUSSELL v. WAIGHT.
• Court: Missouri Court of Appeals

285 S.W. 114

TRUSSELL v. WAIGHT.

No. 15600.

Kansas City Court of Appeals. Missouri.

May 3, 1926.

Certiorari Denied June 23, 1926.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Henry B. Trussell against Charles Waight. Judgment for Plaintiff, and defendant appeals. Affirmed.

Walter W. Calvin, of Kansas City (Kimbrell & Wofford, of Kansas City, of counsel), for appellant.

Kelly, Buchholz, Kimbrell & O'Donnell, of Kansas City, for respondent.

ARNOLD, J.

This is an action in damages for personal injuries resulting from a collision between an automobile truck, heavily loaded with sod, and a hand car on which plaintiff and others were riding.

At the time of the injury plaintiff was a section hand in the employ of the Kansas City Southern Railway Company. The tracks of said company in the southern part of Kansas City, Mo., run in a north and south direction near a community formerly known as the village of Leeds, but now within the territorial limits of said city. The tracks of the railroad company, within the limits of the city, are intersected at right angles by a concrete highway. On April 8, 1922, in obedience to orders of his foreman, plaintiff with five other men was riding south on said railroad track on a hand car belonging to said railroad company, and, while crossing the intersection of Jefferson Highway, or Raytown road, about a mile east of the original village of Leeds, an automobile truck, driven by defendant in a westerly direction, struck the hand car, threw it from the track and to the west thereof, throwing plaintiff therefrom, and inflicting injuries for which he sues the driver of the truck.

The petition charges that —

"at said time the defendant saw, or by the exercise of ordinary care on his part could have seen, that said hand car, and the persons riding thereon, were approaching said crossing, and that, unless said automobile truck was stopped, or unless the speed thereof was slackened, there was great danger and likelihood that said automobile truck and said hand car would collide at said crossing, and that those riding on said hand car would be thus and thereby greatly injured in said collision, but plaintiff says that the defendant, unmindful of his duty in the above behalf, carelessly and negligently ran, conducted, and operated a certain automobile truck in an easterly direction, and approaching said crossing at a high, unlawful, and dangerous rate of speed, and said defendant carelessly and negligently failed to slacken the speed of said automobile truck or to stop same, and, by reason of said acts of carelessness and negligence on the part of the defendant, said automobile truck was caused, suffered, and permitted to collide with said hand car, whereby this plaintiff received the painful, permanent, and dangerous injuries hereinafter set forth."

The petition further charges —

"that after the defendant saw, or by the exercise of ordinary care on his part could have seen, said hand car, and those riding thereon, approaching said crossing, said defendant, by the exercise of ordinary care, and by the use of the means then at his command, could have stopped said automobile truck, or could have slackened the speed thereof, and could thus have prevented the consequent collision and injury to plaintiff, as herein set forth.

"Plaintiff further says that, as said automobile truck and said hand car were approaching said crossing, said hand car, by virtue of the laws of the state of Missouri, and the ordinances of the City of Kansas City, Mo., and by virtue of the custom, usage, and practice, and rules of the road, was entitled to the right of way over said crossing, and it was the duty of the defendant to stop said automobile truck and allow the hand car and this plaintiff to pass over said crossing before said automobile truck attempted to cross over said crossing, but plaintiff says that the defendant, unmindful of his duty in the above behalf, continued to operate said automobile truck at a high, unlawful, and dangerous rate of speed, as it approached and crossed over said crossing, and said defendant carelessly and negligently neglected and refused to allow plaintiff and those riding on said hand car to have the right of way over said crossing, and, by reason of said acts of carelessness and negligence on the part of the defendant, said automobile truck was caused to collide violently with said hand car, whereby this plaintiff received the painful, permanent, and dangerous injuries herein set forth."

The petition sets out in detail the injuries claimed to have been suffered by plaintiff, and states that said injuries are permanent. Damages are asked in the sum of $50,000.

The amended answer is, first, a general denial, and for further answer avers that plaintiff, his co-workers and foreman, all being employees of the Kansas City Southern Railway Company, constituting what is commonly known as a section crew, were riding upon, and jointly engaged in, propelling and operating a hand car, in a southerly direction upon said railroad track, "and, while and as his truck, having reached the east line of said intersection before said hand car, had reached the north line thereof, and having, by reason thereof, the right of way over the same, was proceeding in a westerly direction, across the same, the plaintiff, his co-workers, and their foreman so carelessly and negligently propelled and operated said hand car, in a southerly direction, as hereinafter more particularly alleged, that as a direct and proximate result and consequence thereof the same was caused to, and it did, run against the right side, near the front of his truck, whereby whatever injuries the plaintiff may have sustained, as alleged in his petition, were directly and proximately caused and occasioned."

The amended answer further alleges that plaintiff and his co-workers and foreman were then and there engaged in a joint undertaking and enterprise, and that whatever injuries plaintiff may have sustained, as charged in the petition, were directly and proximately caused and occasioned by the joint, concurrent, and singular carelessness and negligent acts and omissions of plaintiff himself, his said co-workers, and their foreman, "in carelessly and negligently propelling and operating said hand car, as they did, in a southerly direction, upon said railroad track, and into and across said intersection, and against his truck, when they, and each of them, saw and knew, or, by the exercise of reasonable or ordinary care, they, and each of them, could have seen and known, that his truck was about to reach, and had reached, the east line of said intersection before said hand car had reached the north line thereof, and, that, by reason thereof, it had the right of way over said intersection; (b) in carelessly and negligently propelling and operating said hand car, as they did, in a southerly direction, upon said railroad track, and into and across said intersection, and against his truck, when they, and each of them, saw and knew, or, in the exercise of reasonable or ordinary care, they, and each of them, could have seen and known, that his truck, having reached the east line of said intersection, as it had, before said hand car had reached the north line thereof, and having, by reason thereof, as it then had, the right of way over said intersection, was proceeding in a westerly direction across said intersection before said hand car had reached the north line thereof or entered the same; (c) in carelessly and negligently failing and omitting, as they and each of them did, to stop said hand car or check the speed thereof after they, and each of them, saw, or, in the exercise of reasonable or ordinary care, they, and each of them, could have seen his truck upon said intersection for such a time and for such a distance as they and each of them could, by the exercise of reasonable or ordinary care, have stopped said hand car or checked the speed thereof, and thus and thereby have prevented or averted said collision; and (d) in carelessly and negligently causing, allowing, and permitting said hand car to run against his truck, as hereinbefore alleged, when they, and each of them, could, by the exercise of reasonable or ordinary care, and by the use of the means and appliances at their command, have averted or prevented the same."

The reply of plaintiff was a general denial.

Upon the issues thus made the cause went to trial to a jury, resulting in verdict for plaintiff in the sum of $7,500. Motions for a new trial and in arrest were overruled, and judgment was entered in accordance with the verdict. Defendant appeals.

The testimony shows that plaintiff had been in the employ of the Kansas City Southern Railway Company for a year and a half to two years as a crossing flagman, and that he had been working as a section man only 13 or 4 days before the occurrence in question. He was known as an "extra." Plaintiff testified that he was 69 years of age at the time of the accident. Witnesses describe the hand car as having a platform about 6 feet by 4 feet 8 inches, and propelled by man power by means of two handlebars. The foreman testified there were on the car with plaintiff the foreman and five Mexicans, the foreman standing on the west side of the front end of the car and a Mexican on the left or southeast end as the car was moving south; that plaintiff stood in the center of the car, and behind; that the brake was located on the right-hand side of the car, and between the two handlebars; a Mexican had charge of the brake; that at the crossing the railroad operated over a single track. The foreman further stated that he was in charge of the crew and gave all orders; that it was the duty of the Mexican in charge of the brake to operate the same for the purposes of retarding or stopping the speed or movement of the car.

The foreman describes the circumstances immediately surrounding the accident...