Weddle v. St. Joseph Railway, Light, Heat & Power Co.
| Decision Date | 01 December 1930 |
| Docket Number | 17003 |
| Citation | 47 S.W.2d 1098 |
| Parties | WEDDLE v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER CO. |
| Court | Kansas Court of Appeals |
Rehearing Denied Jan. 5, 1931.
Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.
Action by B. W. Weddle against the St. Joseph Railway, Light, Heat & Power Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Mayer Conkling & Sprague, of St. Joseph, for appellant.
Shultz & Owen, of St. Joseph, for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $2,500.00 and defendant has appealed.
The facts show that plaintiff was injured about 4:30 p. m. of August 2nd, 1928, when one of defendant’s south-bound interurban cars struck an automobile truck which plaintiff at the time was driving eastward over a public crossing of defendant’s railway. The collision occurred at a crossing known as Stop 19 of defendant’s interurban railway between St. Joseph and Savannah. The road upon which the truck was traveling was a dirt road, running east and west and intersected defendant’s interurban railway (which at that point ran north and south) at a right angle. The road as it approached the crossing from the west ran upward in a medium grade toward the east for 300 or 400 yards and through a cut for a distance of 35 or 40 feet immediately before reaching the track. One in driving eastward on the road and approaching the track could not see to the north along the track but the view to the south was unobstructed. The railway tracks approaching the crossing from the north ran through a cut for a distance of 300 or 400 feet. The west bank of this cut was 8 or 10 feet from the track. Starting 200 feet north of the crossing the track curved toward the west and as it approached the crossing it ran down hill.
Plaintiff testified that he was a carpet layer for a St. Joseph department store; that at the time of the collision he was driving a Dodge truck with a closed body "cut out around the driver’s seat"; that his helper, Beattie, was in the truck with him; that the witness was seated on the north side; that on the day of and prior to the collision he had crossed over the crossing in question as he went west; that he knew cars ran over the tracks there present and that a car might come along at any time.
He further testified that at the time of the collision he was returning from his work and was driving upon the dirt road toward the east; that when his truck was 35 or 40 feet west of the track he shifted it into second gear; that before shifting gears he had been running at a speed of 15 to 20 miles per hour, but thereafter he proceeded up grade toward the track at a speed of five miles per hour; that he thereafter did not shift gears nor increase his speed; that when he shifted gears he could not see the track north of the crossing; that at a point from 20 to 25 feet from the first rail and that he could not have seen a car 50 feet away at that time; that he looked north for the first time when the front end of his truck was 15 feet away from the west or first rail; that he could not have had a view up the track prior to this time; that he then saw up the track for a distance of 150 feet and no car was in sight; that he proceeded along at the same speed continuing to look toward the north until the front end of his truck was within five feet of the first or west rail of the track and he, sitting in the truck, was 8 or 9 feet away from the track; that he then discovered the car approaching from the north coming around a curve at a distance of 200 feet from the crossing; that he saw the car as soon as he could have seen it; that he immediately threw the clutch into neutral, applied the foot brake and grabbed for the gear shift for the purpose of reversing the truck and backing away from the track; that the truck stopped with its front wheels over the west or first rail; that he did not remember anything that occurred after that as the car struck the truck at that time; that his motor did not stop; that he could not tell whether he was able to get the car shifted out of second gear or neutral or reversed; that moving at the rate of 5 miles per hour under the circumstances he could have stopped the truck within 6 or 7 feet.
He further testified that he heard no warning sound given by the car; that it did not slow up from the time he saw it until the time of the collision; that he needed no warning after he saw the car to know of its approach; that after seeing it he did everything he could to stop before getting on the track but was unable to do so.
Plaintiff’s witness, Beattie, corroborated plaintiff in most of the latter’s testimony. The witness testified that he judged that the front end of the truck was 8 feet from the track when he first saw the car 200 feet north; that he continued to look north for a car from the time plaintiff shifted into second gear; that the first time he was able to see the car approaching was when the front end of the truck was 8 feet from the track and he, sitting in the truck was 11 feet away; that he was looking and listening all of the time and heard nothing and saw nothing until the truck arrived at a point 8 feet from the track.
The motorman testified that starting about 450 or 500 feet north of the crossing in question he began to blow the air whistle on the car and continued to blow it until the car reached a point 135 feet north of the crossing; that he received no signal from a passenger to stop at this crossing and no one was waiting there to board the car, so there was no reason to make a stop; that north of the crossing the track curved to the west in a cut but was straight for a distance of 100 feet; that being on the crossing and looking north one could see the east rail of the track for almost 450 or 500 feet; that at the time now in question he was looking constantly ahead; that he had just taken his hand off of the whistle cord when the truck came into view, from behind the embankment, 23 feet west of the first or west-bound rail; that he immediately reversed his car and set the air brake; that the truck skidded from a point 15 feet from the first rail to a stop with its front wheels over the first or west-bound rail; that when the truck stopped on the track the front end of his car was about 18 feet away from the point of the collision; that when he first saw plaintiff the latter was "sitting straight in his car" and that he did not think that plaintiff thereafter changed his position before the collision; that the car struck the truck and ran 86 feet before stopping; that he stopped in the shortest distance possible under the circumstances after he first saw plaintiff; that he approached the crossing with his car under control having reduced his speed to 20 miles per hour; that when he saw plaintiff the truck was going faster than the car.
The case was submitted to the jury solely upon the humanitarian theory.
Defendant insists that the court erred in refusing to give its instructions in the nature of demurrers to the evidence offered at the close of the entire case. In this connection defendant insists that the undisputed testimony is that the shortest distance within which the interurban car could have been stopped was 221 feet; that under plaintiff’s own testimony it was impossible for him to have seen the car when it was a greater distance away than 200 feet and that the physical facts show that the motorman could not have seen the truck when he was any greater distance away from the crossing than plaintiff could have seen the interurban car.
It is true that there is no evidence on the...
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