Youtsey v. Chicago, R. I. & P. R. Co.
| Decision Date | 31 December 1923 |
| Docket Number | 23853 |
| Citation | 259 S.W. 771 |
| Parties | YOUTSEY et al. v. CHICAGO, R. I. & P. R. CO. et al |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled. March 7, 1924.
Luther Burns, of Topeka, Kan., and John E. Dolman, of St. Joseph for appellant Chicago, R. I. & P. Ry. Co.
H. J Nelson, of St. Joseph, W. S. Herndon, of Plattsburg, and J G. Trimble, of St. Joseph, for appellant Chicago, B. & Q. R. Co.
R. H Musser, of Plattsburg, L. B. Gillihan, of Gallatin, and Platt Hubbell and Geo. H. Hubbell, both of Trenton, for respondents.
SMALL, C. I.
Appeal from the circuit court of Clinton county.
Suit by the plaintiffs, who are the three minor children of George Youtsey and Frankie Youtsey, his wife, who were killed by a south-bound Rock Island passenger train at the crossing of Fifth street over the railroad tracks in the town of Turner in said county, while riding in a Ford automobile with Paul Shaffer and Goldie Shaffer, his wife. Gwenden Shaffer, the five year old daughter of Mr. and Mrs. Shaffer, and Leonidas Youtsey, the seven year old son of Mr. and Mrs. Youtsey, were also in the party. Mr. Youtsey was driving the car. The two fathers were sitting in the front seat with the little boy between them, and the two mothers in the rear seat with the little girl between them. The four parents were killed and the two children injured, when the train ran into the automobile. They all lived in Davies county, and were on their way to Colorado for an outing. They were unfamiliar with the crossing and its surroundings; that is, they had never been there before. The trainmen were familiar with the crossing and the situation and that the crossing was much used, but did not know of the presence of the automobile being on or approaching the crossing on this occasion. The accident happened at about 2 o'clock in the afternoon of August 10, 1921. Leonidas Youtsey brought suit for the personal injuries he sustained, and recovered judgment, which on appeal was affirmed by the Kansas City Court of Appeals. Youtsey v. C., R. I. & P. Ry. Co. et al., 251 S.W. 468. Gwenden Shaffer also brought suit for the injuries she sustained to her person, and also for the death of her father and mother. She also obtained judgment against the defendants, and on appeal her case was affirmed by this court. Shaffer v. C., R. I. & P. Ry. et al., 254 S.W. 257.
After the party in the automobile reached Turner and had replenished the radiator with water, they went south on Sherman street a block or two to the intersection of Fifth street, which was a street about 60 feet wide and ran east and west. The railroad crossed fifth street about 400 feet east of Sherman street. Fifth street going east to the railroad crossing was on about a 3 per cent. ascending grade. The planks, constituting the crossing for the passage of vehicles over the railroad tracks were not in the center of fifth street, but near the south side. Travelers approaching the crossing from the west were therefore compelled to guide their automobiles in a somewhat southeasterly direction, just before reaching the plank crossing. There were three railroad tracks over this crossing. These tracks ran in a northwesterly and southeasterly direction and intersected with Fifth street, where the crossing was, at an angle of about 70 degrees. The most easterly of these tracks was the main line and is the track upon which the Rock Island passenger train, coming from the northwest at 45 or 50 miles per hour, collided with the automobile. The other two tracks were switch or passing tracks immediately adjoining the main line on the west or southwest. The automobile approached the crossing going directly east from Sherman street along Fifth street, at the rate of 10 or 15 miles an hour, and did not slacken its speed before the collision. The passenger train approached the automobile diagonally from behind it and from behind two freight trains, one being on each of said passing tracks. The caboose or end car of each of the freight trains at the time of the collision, was about 2 1/2 car lengths north of the crossing, but one of them had passed over the crossing and stopped, leaving it open, just a short time before the automobile reached the crossing, from which circumstance the jury might have inferred that the driver of the automobile thought he was invited to proceed unimpeded on his journey over the crossing -- that the way was clear. These freight trains, the evidence tended to show, obstructed the view of the very rapidly approaching passenger train from the occupants of the automobile until it was too late for them to prevent the collision by anything they could do. There was no evidence whether the occupants of the machine heard or saw the train coming before the collision, the only eyewitness being unable to determine, from...
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