Zumwalt v. Chicago & A. R. Co.

• Decision Date: 10 June 1924
• Docket Number: No. 24032.,24032.
• Citation: 266 S.W. 717
• Court: Missouri Supreme Court
• Parties: ZUMWALT v. CHCAGO & A. R. CO.

266 S.W. 717

ZUMWALT v. CHCAGO & A. R. CO.

No. 24032.

Supreme Court of Missouri, Division No. 1.

June 10, 1924.

Rehearing Denied November 25, 1924.

Motion to Transfer to Court in Banc Overruled December 19, 1924.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Richard H. Zumwalt against the Chicago & Alton Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Alpha N. Brown and Charles M. Miller, both of Kansas City, for appellant.

E. M. Tipton and William S. Gabriel, both of Kansas City, Newlan Conkling, of Carrollton and Roscoe P. Conkling, of Kansas City, for respondent.

SMALL, C.

Appeal from the circuit court of Jackson county. Suit for personal injury by plaintiff against defendant railroad company and Chris Adelman, the engineer in charge of its passenger train which collided with the automobile plaintiff "was driving at a crossing of defendant railway at Wayne avenue, between Kansas City and Independence, on May 7, 1920.

The charge of negligence in the petition is in substance: (a) That defendants negligently failed to provide and maintain said crossing and approaches in a safe condition, in that they negligently permitted same to become uneven and rocky, and permitted trees, shrubbery, and telegraph poles to be on and near the railroad right of way, so as to obstruct the view' of approaching trains by persons going over said crossing. Other charges of negligence were made jointly against both defendants. Among them, that the employees on the engine hauling said train, in approaching and passing upon said crossing, knew, or by the exercise of ordinary care could have known, that the plaintiff was in peril and danger from the approach of said train, and was unaware thereof in time to escape therefrom by the exercise of ordinary care, but they negligently failed to give sufficient warning of the approach of said train to the plaintiff, and negligently failed to slacken the speed thereof or stop said train. They were also guilty of negligence in failing to ring the bell or sound the crossing whistle, as required by the statute. That said negligent acts and omission of defendants were concurrent, and caused said collision whereby plaintiff's leg was broken and mashed, and he sustained injuries specifically described in the petition.

Defendant railroad company filed a petition for removal of said cause to the United States District Court for the reason that said railroad company was a citizen and resident of Illinois, and said Richard H. Zumwalt and defendant Adelman were residents and citizens of Missouri. "That Chris Adelman is a paper-made defendant, solely for the purpose of fraudulently attempting to defeat your petitioner's right of removal of this cause, and without any idea of attempting to recover herein against said Adelman. * * * That under the petition a separable controversy is stated and exists between the plaintiff, your petitioner, the Chicago & Alton Railroad Company, and the other defendant herein, Chris Adelman, in that your petitioner is charged with alleged separate and distinct grounds and liability against the other defendant herein, Chris Adelman, which entitles your petitioner to remove this suit to the United States District Court. * * * That defendant Chris Adelman is not concerned in the controversy as to the alleged condition of said crossing or the alleged obstructions on the right of way and cannot be charged therewith, * * * and no joint cause of action is stated in the petition or can be stated against both of said defendants, and the same shows a fraudulent joinder of defendant Chris Adelman for the purpose of attempting to defeat a removal of this cause."

The court approved the bond, but denied the petition for removal. Thereafter defendant railroad company filed its answer, which contained: First, general denial; second, contributory negligence; third, court erred in refusing to remove the cause to the United States District Court. Defendant Adelman filed separate answer to same effect. The reply put the new matters in the answers in issue. At the trial, after hearing the plaintiff's testimony, the court indicated that it would and did sustain a demurrer to the evidence for defendant Adelman, and plaintiff took an involuntary nonsuit, with leave to move to set the same aside, but no motion to set aside was ever filed. Immediately after said nonsuit the defendant railroad company, before any further proceedings were had, duly filed its second petition and bond for removal to the United States District Court in due form which second petition was rejected.

Plaintiff's Evidence as to the Collision.

At the trial plaintiff himself testified in substance: The accident happened May 7, 1920, about 9:30 in the morning. The train was a Chicago & Alton passenger train. The accident occurred at Wayne avenue. He was making deliveries for Fred S. Clark, cleaner and dyer, at Independence, and was driving a Ford sedan. It was about four or five months old, in good condition. The windows were open, and the motor was not noisy. The sun was shining brightly, and it was not windy, no rain or moisture on the ground. The approach to the crossing was very rough, the rocks were sticking out, some of them two inches in places, and then it was a little up grade, and the rails of the tracks were sticking up above the road probably 2 or 3 inches. It was a public road grade crossing. It was a settled neighborhood, and there were houses around there. Approaching the crossing just before the accident he was going up hill; the grade began about the right of way fence. East of Wayne avenue the railroad track is about straight. That morning he had been down to Mrs. Izzard's, the first house south of the track on the east side of the road. When he started from Mrs. Izzard's he went up Wayne avenue toward the crossing, in low gear. As he approached the railroad right of way he looked and listened. He could see to the west to where the track curved; did not know exactly how many feet. There was no train coming, no whistle sounded. Could not see to the east as he approached the right of way on account of some trees and shrubbery. The train never whistled before it struck him, nor did the bell ring. No short blasts or emergency whistle were sounded. He first saw the train when he was on the track. It was coasting. His hearing was good that morning. He knew the law required the whistle to be sounded or the bell to be rung on the engine. There were no other noises around. About the time he was even with the right of way fence he looked and listened for trains. Heard no train nor whistle nor bell, and no whistle was blown or bell was rung. There was another crossing east of Wayne avenue at Sterling avenue, 400 or 500 feet from Wayne avenue. He threw his car out of gear when about 8 or 10 feet inside of the right of way, and had his foot on the brake at that time. He then looked and listened for the train. His car did not come to a dead stop, but almost, just barely moving. No bell was rung at that time or whistle sounded. At that time he could see east along the track from 700 to 1,000 feet. He was then about 40 feet froth the track. Before he came to a clear stop he started up his car again, pushed it back in low and started up to the crossing, which was very rough on account of the rocks in the roadway. He was going up grade. He had to go in low all the time. Going this 40 feet his speed was about 3 or 4 miles an hour. At the railroad crossing the rails were sticking above the boards two or three inches, and he had trouble getting over the rails. When he hit the first rail his car kind of stopped, slowed down a little, and he had to put on more gas to get over the rail. When he first saw the train his front wheels were over the first rail, and the train was about 100 or 150 feet away from him (coming from the east), and running about 30 or 35 miles an hour. He then tried to go on over the tracks, put on more gas, accelerated his speed a little, but the train struck his automobile about the center. He was knocked through the top of the Ford sedan and knocked down the track 60 to 80 feet. He was knocked out of breath, and was stunned. The automobile was knocked about 50 feet down the track. At the time the train struck him it had not slowed down its speed any. Afterwards the train backed up to where he was, and he was taken to the Independence Sanitarium. If the engine had whistled while he was approaching the crossing he could have stopped his automobile in 2 or 3 feet.

Cross-examination: When he was practically at a standstill, 40 feet from the track, having his foot on the brake, he looked and listened, but did not see or hear any train, then he continued to drive on, but did not look, any more until his front wheels got on the main line track. Going that 40 feet he neither looked east nor west. When he got on the track and saw the train about 100 or 150 feet away he tried to go on across, gave it more gas, did not know whether he could get across, but that was the only chance he had. He was much excited at the time, he would guess. As the train was coming down on him he noticed it was not puffing, and for that reason he thought it was coasting. He had been over the crossing before that six or seven times within 5 or 6 years, but did not know it very well. He knew there was a railroad crossing there, and knew the surrounding circumstances. He judged the trains went over that crossing at 30 miles an hour; never paid much attention to them. In his deposition he stated he had been over the crossing seven or ten times within 3 months previous to the accident. He also knew that a train was likely to run by there any time. After he got in the right of way about 8 feet there was nothing to obstruct his view to the east, and he could then see about 700 to 1,000 feet to the east. The track to the east looked like it was straight to Independence. On...