Van Bach v. Missouri Pac. Ry. Co.

• Decision Date: 24 December 1902
• Citation: 71 S.W. 358,171 Mo. 338
• Parties: VAN BACH v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

71 S.W. 358

171 Mo. 338

VAN BACH v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 24, 1902.

RAILROAD CROSSING ACCIDENT—NEGLIGENCE OF TRAVELER — FAILURE TO SUSPEND SWITCHING OPERATIONS—EFFECT.

1. The effect of the contributory negligence of a traveler in a buggy, who, seeing a train pass, approaches a city railroad crossing without noticing that the train has stopped and is backing to make a flying switch across the street, he being familiar with the locality, and knowing that such operations are customary there, and the train being in plain view, and having already switched one car, is not avoided because the trainmen, though seeing his approach, fail to suspend operations till he passes; they having the right to assume that he will see the danger and guard against it.

Appeal from circuit court, Jackson county.

Action by Ida Van Bach against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Plaintiff's husband was killed at a railroad crossing in a public street in Kansas City through the negligence, as plaintiff alleges, of the servants of defendant in handling a freight train. Plaintiff's evidence tended to show the following facts: Hickory street runs north and south. Union avenue crosses it at right angles. Defendant owns two railway tracks crossing Hickory street diagonally from southwest to northeast, near the intersection of Union avenue. The space between these two tracks is eight feet. South of and parallel to defendant's tracks are two other railway tracks, between which is a like space of eight feet, belonging to the Wabash Railroad Company. The space between the tracks of the defendant and those of the Wabash is 12½ feet. The following diagram represents the location of the tracks and the scene of the accident:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff's husband, driving alone in a onehorse buggy, approached Hickory street from the east on Union avenue. He was aiming to go north on Hickory street, and the inference may be drawn from plaintiff's testimony that when he reached Hickory street he turned north, and drove on in that direction until he reached the north track of defendant, when he was struck by a freight car, which had been detached from the train and kicked to make a flying switch across Hickory street to defendant's yards. He was driving about the middle of Hickory street at a speed which the witness called a jog trot. The horse cleared the crossing, but the car struck the buggy, broke it away from the horse, and carried it beyond the west line of Hickory street. The deceased was thrown out and so mangled that he died within a few minutes. There were some buildings along the north line of Union avenue nearly up to the point where the south Wabash track crosses that line, which is about 150 feet east of the east line of Hickory street. After passing those buildings, there was nothing to prevent one going as deceased was from seeing the defendant's tracks as far east as the train in question was, and after he reached Hickory street he had a clear view of defendant's tracks as far east as the next street, Mulberry. This train, just before the accident, had crossed Hickory street going east, the last car in the train clearing the east line of Hickory street about 120 feet. Then the work of kicking the cars back into the switch began. This was done by backing the train, during which the coupling pin was drawn to detach the car to be kicked, a shove by the engine was given, and the detached car was let to go into the switch by the force thus imparted, and the rest of the train was pulled forward again for another such flying switch. One car of this train had thus been switched across the street, and the crew were in the act of switching the next car, when the accident occurred. There was no brakeman on the detached car. There were two witnesses for the plaintiff, who saw the accident. One of them viewed it from a point north of the tracks in the angle near where the north track crosses the east line of Hickory street. He was facing north, talking to a man who was facing south, and, observing in this man's countenance a sudden expression of alarm, turned around, and then saw the plaintiff's husband in his buggy approaching the crossing, and saw the detached car coming to the same point. At that instant the horse was near the defendant's south track, the buggy just north of the Wabash track, and the car about 30 feet from the point of collision. The witness said the car was going about eight miles an hour, but he said he had no means of fixing the speed, and it was only a guess. When the witnesses turned and saw the situation, the man in the buggy had his face towards the west. He turned towards the car just as the accident occurred. If he had looked when the witness first turned and saw him, he would have seen the car in time to have stopped. The accident occurred about 4 o'clock in the afternoon, October 3, 1899. The plaintiff's other witness to the scene viewed it from a point in the space between the tracks of the defendant and those of the Wabash near the west side of Hickory street in its intersection with Union avenue. This witness was walking north, aiming to reach a place two squares north of the railroads. He saw the train pull east. It was a freight train of 10 or 12 cars. Then he saw it shoved back, and this car cut loose,—kicked back, and let to run down by itself. It was cut loose from the train about two car lengths, or 72 feet,...