Yoakum v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 03 December 1917
• Docket Number: No. 12603.,12603.
• Citation: 199 S.W. 263
• Court: Missouri Court of Appeals
• Parties: YOAKUM v. ATCHISON, T. & S. F. RY. CO. et al.

199 S.W. 263

YOAKUM v. ATCHISON, T. & S. F. RY. CO. et al.

No. 12603.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

Appeal from Circuit Court, Ray County; Frank P. Divilbiss, Judge.

"Not to be officially published."

Action by Louis Yoakum against the Atchison, Topeka & Santa Fé Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Lathrop, Morrow, Fox & Moore, of Kansas City, Garner, Clark & Garner, of Richmond, and S. J. & G. C. Jones, of Carrollton, for appellants. George W. Lavelock and Roberts, Milligan & Milligan, all of Richmond, for respondent.

TRIMBLE, J.

In attempting to go south over a rural public crossing, plaintiff was struck and injured by a west-bound gasoline motor car (for passenger traffic), operated by the defendant company over its railway line between Lexington Junction and Richmond, in Ray county, Mo. Defendant Morin was the company's motorman in charge of and running the car. This suit for damages followed, and a verdict and judgment for $3,500 in plaintiff's favor caused defendants' appeal.

The charges of negligence specified in the petition may be classified thus: (1) Failure to ring the bell or sound the whistle 80 rods from the crossing, and to continue the same until the crossing was reached. (2) Negligent failure "to ring any bell, sound any whistle, or to give any other signal or warning by which plaintiff might have been warned of the near and dangerous approach of the said car." (3) Negligent failure (while approaching the crossing at a high and dangerous speed) "to give such warning of the approach of the said train towards the said crossing as a reasonably prudent person should have given under the circumstances." The first charge evidently deals with the statutory signals required by section 3140, R. S. Mo. 1909. The other two deal with common-law negligence.

There being some doubt whether section 3140 applied to a car of the kind in question (Jackson v. Southwest Missouri R. Co., 171 Mo. App. 430, 440, 156 S. W. 1005; Hudson v. Southwest Missouri R. Co., 173 Mo. App. 611, 159 S. W. 9), the plaintiff did not submit to the jury the question of the failure to give the statutory signals. The issue as to the negligence submitted as the ground of plaintiff's cause of action was contained in his instruction No. 1. It told the jury that, if they believed from the evidence that defendant railway company owned the railroad line and operated the car, and that the crossing over the railroad was a public highway and crossing, and that defendant Morin was an employé of the railway company, and was the engineer having control and in charge of said motor car and was running the car over said railroad across said highway, and "that in approaching said crossing the said Thomas J. Morin, while in charge of the said motor car, negligently and carelessly failed to give such warning or signals as a reasonably prudent engineer would have given under similar circumstances to persons who might lawfully be on said crossing, and that by reason of his negligent failure, if any, to so warn or signal," plaintiff attempted to cross, and said car ran against plaintiff's team and vehicle, whereby he was thrown out and injured, then the jury should find for plaintiff, provided they further found that he was exercising ordinary care for his own safety.

Defendants insist that their demurrers to the evidence should have been sustained. The grounds of this contention are: (1) That no negligence on the part of the motorman was shown. (2) That plaintiff was guilty of negligence which forbids a recovery.

The verdict was in plaintiff's favor, and that verdict has received the sanction of the trial judge. Therefore, in considering the above grounds of attack, we must accept plaintiff's evidence as true, and give him the benefit of every reasonable inference which the jury could rightfully draw from all the proof. Of course, if plaintiff's evidence affirmed things clearly contrary to the common experience of mankind, or in conflict with well-known natural laws, we are not required to accept such affirmations as true; but, with this exception, we must take the evidence in plaintiff's behalf at par and treat as untrue the evidence conflicting therewith offered by defendant. Williams v. Kansas City Southern R. Co., 257 Mo. 87, 112, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Fritz v. St. Louis, Iron Mountain, etc., R. Co., 243 Mo. 62, 148 S. W. 74; Meily v. St. Louis & San Francisco R. Co., 215 Mo. 567, 114 S. W. 1013; Fink v. Kansas City Southern R. Co., 161 Mo. App. 314, 143 S. W. 568.

The claim that no negligence was shown on the part of the defendants is untenable. The car was traveling at from 30 to 35 miles per hour. Several witnesses for plaintiff, some of whom were passengers on the car, and all of whom were in position to know, testified that no whistle was blown, nor bell rung, nor other signal given, until after the team got upon the track, and then the signals were given just as the car came in contact with the team. One of plaintiff's witnesses, a man by the name of Baker, said that the motorman started to whistle when the car was 30 or 40 feet from the crossing, but that no signal before that was given. This was less than a second before the collision, for, at 30 miles an hour, the car was going 44 feet a second. Hence, if a signal was not given before that time, it would be the same as no signal, since no time was afforded plaintiff to make use of such a warning.

There can be no question but that, without regard to the statute, the common law imposes a positive duty upon the operator of a rapidly moving car, such as this was, to give timely warnings or signals of its approach to a public crossing, so that persons on the highway may be apprised thereof and avoid a collision. Miller v. Engle, 185 Mo. App. 558, 172 S. W. 631; Jackson v. Southwest, etc., R. Co., 171 Mo. App. 430, 441, 156 S. W. 1005; Hudson v. Southwest Missouri R. Co., 173 Mo. App. 611, 618, 619, 159 S. W. 9; Baker v. Kansas City, Ft. Scott, etc., R. Co., 147 Mo. 140, 48 S. W. 838; Burger v. Missouri Pacific R. Co., 112 Mo. 238, 246, 20 S. W. 439, 34 Am. St. Rep. 379; 2 Thompson on Neg. § 1552.

The other claim, that plaintiff was not in the exercise of ordinary care, calls for a more detailed statement of the evidence in plaintiff's favor and of the conditions and surroundings at the crossing in question. But unless such evidence conclusively shows that plaintiff was guilty of contributory negligence — that is, shows it as a matter of law — the question was one for the jury, and its verdict cannot be disturbed by an appellate court.

The county road runs north and south. The railroad approaches the county road from the northeast, but as it nears the crossing it makes a curve to the right, which places the track at the crossing almost east and west, and then the railway continues turning to the northwest. The said curve is described by one of plaintiff's witnesses as a "very abrupt curve, * * * about as strong a curve as they could make and hold a train with safety on the roadbed." Both the county road and the railroad as they approach their intersection are in cuts; the one in which the county road lies being from 4 to 6 feet deep; so that a traveler on the county road, approaching the crossing from the north, would have, east of him on the side of the road extending up at least to the cut in the railway at the crossing, a bank from 4 to 6 feet in height. Along the east side of this road north of the crossing was a growth of timber which prevented a view of the railroad, and on top of the bank was brush, consisting of elm sprouts, etc., 10 or 15 feet high. It was only 25 feet from the center of the track north to the right of way fence; and the bank on the east side of the county road, as it approached the railroad from the north, came south past the right of way fence. Even on the right of way south of this fence there were sprouts 7 or 8 feet high. The accident occurred in May, and this brush and timber was in full foliage; and the evidence was that the brush and timber were as thick as they could stand. By reason of these conditions, a person coming south along the road to the crossing could not see east down the railroad until he was within a very few feet of the track.

One of plaintiff's witnesses, a farmer living in the neighborhood of the crossing, after testifying to the cuts, the bank, and the brush, said that a man in a wagon driving a team south to the crossing could not see east down the track at all before the team would be on the crossing. In other words, a person, in order to see down the track and observe a train approaching from the east, would, on account of the obstructions, have to get so close to the track that his team would then be on the track and in danger. Another witness for plaintiff, who testified fully as to conditions at the crossing, said that at a point 4 or 4½ feet north of the north rail a person could see east down the track for 150 feet, but that at a point 10 feet back one's view down the track was obstructed by the brush. There was testimony, even from one of defendant's witnesses, showing that brush and trees had grown up on the east side of the road and encroached perhaps 4 feet upon the right of way; but he claimed that a man on the highway could see around the brush when he got to the north right of way line — that is, 25 feet north of the center of the track. Another of defendants' witnesses, a section hand, who swore there were no brush or obstructions of any kind, said, on cross-examination, he did not think a person coming down the highway could see a train until he reached a point 25 feet north of the center of the track. A photograph, shown to have been taken in June following the accident, but when conditions were the same, was introduced in evidence. It was taken at a point on the railroad 200 feet east of the...