Youtsey v. Chicago. R. I. & P. Ry. Co

• Decision Date: 02 April 1923
• Docket Number: No. 14658.,14658.
• Citation: 251 S.W. 468
• Court: Missouri Court of Appeals
• Parties: YOUTSEY v. CHICAGO, R. I. & P. RY. CO. et al.

251 S.W. 468

YOUTSEY v. CHICAGO, R. I. & P. RY. CO. et al.

No. 14658.

Kansas City Court of Appeals, Missouri.

April 2, 1923.

Rehearing Denied April 30, 1923.

Appeal from Circuit Court, Clinton County; A. M. Tibbels, Judge.

"Not to be officially published."

Action by Leonidas Youtsey against the Chicago, Rock Island.& Pacific Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

John D. Dolman and J. G. Trimble, both of St. Joseph, for appellants.

L. B. Gillihan, of Gallatin, R. H. Musser, of Plattsburg, and Hubbell Bros., of Trenton, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the suns of $5,000, and defendants have appealed.

The facts show that on August 10, 1920, plaintiff, a boy seven years of age, in company with his parents and Mr. and Mrs. Shaffer and a little girl of the Shaffers, was on his way from Daviess county, Mo., to Colorado in a Ford automobile. They entered the town of Turney from the west, stopping there a few minutes, and then proceeding on their journey. At the edge of the town they crossed the railroad tracks of the defendant Chicago, Burlington & Quincy Railroad Company, where they were struck by a passenger train of the defendant Chicago, Rock Island & Pacific Railroad Company, coming from the north, hurling the automobile for a distance of 100 feet, killing the parents of the children, and injuring plaintiff and the little girl. At the time of the collision the Rock Island train was 12 minutes behind time, and was passing through the town of Turney at the rate of from 50 to 55 miles per hour. The engineer did not see the automobile until he struck it, when he immediately applied his brakes, but ran one-half of a mile before the train stopped.

Turney is an incorporated town containing about 225 people. The railroad goes through the town in a northwesterly to a southeasterly direction. The business portion of the town, consisting of a few stores in one block, was situated west of the railroad track and opposite the station. There was a grove of trees extending a distance of 400 feet from the railroad track to West street, a north and south street and the business street of the town. The tracks through the town consisted of the main line track and two passing tracks lying west of the same. The depot was located east of the main line track. There was also a house track running around on the east side of the depot. There were three railroad crossings in the town, the Fifth street crossing, where the collision occurred, being the most southerly one. Fifth street runs east and west. The center line of this crossing was 833 feet from the south end of the depot platform. North of the depot was an elevator which was about 80 rods or a quarter of a mile from the Fifth street crossing. This crossing had been publicly traveled for a period of 20 years, and was used as much as any crossing in the town. It was a part of two well-known automobile trails. As many as 200 automobiles a day crossed over this crossing at this time of the year, some of them coming from foreign states. About 40 trains a day passed through Turney on this railroad. The engineer of the passenger train had been running through the town off and on for 32 years and was well acquainted with the crossing there. The automobile entered the town on Center street, a street running east and west and the most northern street in the town, and then turned south on West street. It continued south passing over what is called Sherman street and proceeding a short distance turned into Fifth street at a point about 400 feet from the railroad crossing. It had not crossed the railroad prior to this time.

The passing tracks at the crossing were a little lower than the main track. At a point about 50 feet from the main track the street was 3 feet lower than the main track and at the junction of Sherman and Fifth streets it was 13 feet 9 inches lower than the main track. This upward grade in the street caused the tracks to appear to a person traveling in an automobile as two tracks instead of three. Fifth street was 60 feet wide. Instead of the railroad company constructing the crossing in the middle of the street, it placed its board crossing so that the center line of the crossing was 12 feet north of the south line of the street. In approaching the railroad track on Fifth street the roadway is in the center of the street. Had the crossing been in the center of the street, the street would have made an acute angle with the railroad, thus making it somewhat more difficult to see a train approaching from the northwest than if the street had crossed the railroad at right angles. But in view of the fact that the automobile was required to begin to turn toward the south at a point 150 feet from the crossing on account of the crossing being out of place, a traveler would approach the crossing over the last 150 feet at such an angle that he would have to turn his head 110 degrees in order to see the track to the north. In addition to this, at the time that the Ford car attempted to make the crossing there were two freight trains, one of which was a very long train, standing one on each passing track with their cabooses 75 feet north of the crossing. These freight trains and the grove at the depot obstructed the view of the track so that the occupants of an automobile approaching the track at the time the Ford in question attempted to Cross it could not see the main track or any passing track. At the point where the first passing track was reached, the occupants of the car could see 120 to 125 feet of the main line track north of the crossing. It was 30 feet 8 inches from the first track to the main line track.

Shortly before the occupants of the Ford turned into Fifth street they were going at the rate of about 10 miles per hour. There is no evidence as to how fast they were going at the time they approached the crossing, but the turn being 400 feet from' the crossing, and it being uphill after they turned, it is fair to assume that the automobile was not going at a very rapid speed. So it is quite apparent that its occupants could not have seen a train approaching at 55 miles per hour until it was too late to stop the automobile. In fact, there is direct testimony to this effect. There was evidence from which the jury could say the occupants of the car were strangers to this crossing. From these facts it is readily seen that this crossing under the conditions present was a very dangerous one.

An ordinance of the town of Turney was pleaded and proved providing for a speed limit of 15 miles per hour for trains and providing that the locomotive bell should be rung at a distance of at least 80 rods from the crossing and should be rung continuously while any engine was passing through the town. The evidence shows that this ordinance was violated; that not only no bell was rung, but no whistle was given within this distance. The last signal that was given prior to the accident was when the train whistled for the town of Turney. The engineer of the train testified that defendants furnished the engineer with a time table allowing a speed of 50 miles per hour through the town of Turney. He testified that he did not know of any speed limit of the town; that he knew that Fifth street in said town was a public crossing; that he knew the view of the main line track was obstructed by the freight trains, but that he was not supposed to look to see if any one was approaching the track; that he was not looking to his right, but straight ahead; that, if he had been looking, he would not have been able to have seen the automobile approaching until he emerged from behind the freight trains, which was too late for him to have done anything to avert the collision. He testified that he went through the town of Turney at the rate of about 45 miles per hour.

Plaintiff pleaded and proved a lease wherein the Chicago, Burlington & Quincy Railroad Company, as owner of the railroad at the place in question, leased certain rights to the same to the defendant Chicago, Rock Island & Pacific Railroad Company. Plaintiff submitted his case in a long instruction. It would serve no good purpose to copy it into the opinion. Suffice it to say that it had the jury find the condition of the right of way at the place of the collision, and submits common-law excessive speed negligence in connection with the failure to sound the whistle or ring the bell, instructing the jury that, if it "further believe from the evidence that the running of said engine and train at an unreasonable, excessive, and negligent rate of speed, without sounding the locomotive whistle and without ringing the bell thereof, * * * was a direct and proximate cause of the injury to the plaintiff," etc., they should find against the two defendant railroad companies.

It is insisted that the court erred in giving this instruction for the reason that the case was not submitted on the...