KATIE L. FITZPATRICK, Administratrix of the Estate of CHARLES V. FITZPATRICK, v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
Division One
January 4, 1941
146 S. W. (2d) 560 | 57
Plaintiff charged defendant with negligence in failing to give any warning that the crossing was obstructed. Defendant charged deceased with contributory negligence in operating his automobile at an excessive rate of speed under the circumstances and in failing to keep a lookout for railroad cars on the crossing. The jury returned a verdict for plaintiff for $10,000 and judgment was duly entered thereon. Defendant has taken the necessary steps to present the cause on aрpeal.
Appellant contends that the trial court erred in refusing to give its instruction, in the nature of a demurrer to the evidence, as tendered at the close of the whole case. Appellant says, (1) that the evidence was insufficient to make a submissible case of negligence against it; (2) that deceased was guilty of contributory negligence as a matter of law preventing recovery; and (3) that, if defendant was guilty of negligence, such negligence was not the proximate
The collision occurred at defendant‘s crossing at Fifteenth Street and Richmond Avenue and just west of the Fifteenth Street Bridge over Blue River. Fifteenth Street is a paved highway extending east and west. Farther east it is known as Van Horn Road. It has four traffic lanes and is heavily traveled at all hours of the day and night. Defendant‘s tracks extend north and south across Fifteenth Street. The main line is on the east. The switch track is on the west. At the time of the collision, one of defendant‘s freight trains was standing on the main line track with a large automobile car extending across Fifteenth Street. The car was “a rust color of some kind.” “It was a big brown looking car, box car.” Plaintiff‘s witnesses estimate its length at 40 feet, its height at 12 feet, and said that the floor of the car was three or four feet above the rails.
The highway bridge over Blue River is 227 feet in length and is built in the form of an arch over the river. The west end of the bridge is 80 1/2 feet east of the eаst rail of defendant‘s tracks. As one approaches the crossing from the east, there is a rise in the pavement as it goes over the bridge. The pavement then gradually descends to a point 33 feet east of the east rail of the tracks. This point, thirty-three feet from the east rail, is four-tenths of a foot, about five inches, lower than the top of the east rail. The highest part of the highway is near the center of the bridge, 200 feet east of the east rail of defendant‘s track. This point is 1.7 feet higher than the east rail, and it is about two feet and three or four inches higher than the lower point of the swag thirty-three feet east of the east rail. These measurements of elevation are along the center line of the highway. The pavement north of the center line at the dip or swаg, east of the crossing, is lower than it is in the center of the highway. The surface of the highway in the center of the bridge is approximately thirty feet above the water in the river.
About one-half block north of the crossing and east of the railroad is the plant of the American Asphalt Roofing Company. According to plaintiff‘s evidence, when the wind is from the north or northwest, smoke from this plant comes over the bridge and railroad crossing. The crossing is always smoky when the wind is from the north or northwest. The fog and mist from the river and the low ground, and the smoke from the plant, commonly obscure the crossing in the early morning hours. The evidence tends to show that the conditions of fog and smoke and haze existing at this crossing and on the bridge, at the time of the collision, were not unusual. The same conditions existed “lots of times” bеfore, and on many mornings.
Three blocks west of defendant‘s crossing, Fifteenth Street was crossed by the Frisco and Missouri Pacific tracks, and the crossing
At the time of the collision the wind was from the northwest. The train on the crossing was enveloped in a heavy smoke, fog, steam and mist. The atmosphere was very damp, foggy and smoky in the vicinity of the bridge and crossing, but elsеwhere clear. The smoke and fog became heavier as one approached from the east over the bridge toward the crossing. It was a dark, cloudy night. The moon was not shining. The electric lights along the street near the crossing, and the lights on the bridge, were not burning. Automobile lights would not penetrate the fog.
The deceased was familiar with the crossing. He had lived out in that district a number of years. There is nothing in the evidence which warrants an inference that he was not familiar with the crossing. Prior to 1933 for four or five years he had been employed by the Witte Engine Works located one block south and one block west of the crossing. For four or five years prior to his death he worked for Weber Engine Company located at Twelfth and Winchester, six blocks west and three north of the crossing. His parents, since 1922, had resided at 6420 E. Sixteenth Street, nine or ten blocks west and two blocks south of the crossing. Deceased resided with his parents at the above address. His father, and his foreman, each testified that they had been over the crossing with deceased on several occasions, although the father said that they usually went another way.
Immediately before the collision the deceased was driving his car west on Fifteenth Street at about twenty to twenty-two miles per hour. He was alone in the automobile. The headlights of the automobile were burning. Without slackening speed, he drove up over the bridge, through the swag or dip in the pavement and into the side of the freight car in defendant‘s train.
Plaintiff alleged that there was a “violent collision;” that deceased‘s automobile, “with great force and violence, collided with” defendant‘s train. The evidence discloses that as a result of the collision the automobile “was rammed in under the freight train.” Plaintiff‘s witnesses identified pictures of the wrecked car, a 1937 Dodge two door sedan, “a steel body car.” These pictures show the headlights, hood, radiator, and grillwork, the windshield and left fender demolished. The right fender appears to be crumpled and bent down. There is a dent in the top canopy over the windshield and the left door is open and “down somewhat.” The front wheels, tires and front
The extent of which visibility was affected by the smoke and fog may best be seen by particular reference to the testimony of plaintiff‘s witnesses. Some testimony that was generаl on direct examination became definite and certain on cross-examination. Plaintiff‘s witness Beatty, a salesman for a bakery, was on his way to work with Cecil Green, an ice company employee. They arrived at the scene of the wreck after the train had been moved and the crossing opened. There was fog and smoke over the bridge, and fog and mist and steam coming off of the Blue River. They hit the fog just off the east end of the bridge. Beatty testified: “Q. Was that a heavy fog on that bridge? A. Well, it was so the lights shining on it you couldn‘t see through it at all. Q. You couldn‘t see through it at all? A. You could see, but not very good. It was dangerous to drive into. Q. Could you see a hundred feet ahead of you in that fog? A. No. Q. Could you see 50 feet ahead of you in that fog? A. I would say if there had been a tail light or something in front of yоu that you could have seen it. Q. Could you have seen a man standing in the street 50 feet ahead of you that night with the weather conditions that existed there that night? A. I don‘t believe you could. Q. If a man had been 15 feet in front of you and on the bridge could you have seen him if he was standing in the middle of the roadway with the weather conditions that you say existed there that night? A. It would have been pretty hard to do because a man is mighty hard to see. You could be right on them and not see them in a fog with lights on a car. Q. You think perhaps you couldn‘t see a man 15 feet away that night with the weather conditions as they existed? A. It would have been mighty hard to do.”
Beatty further testified that on the morning prior to the accident he approached the crossing in the same manner and that the conditions were exactly the same, еxcept that the crossing was obstructed by a train (the crossing had been opened before he arrived on the morning of the collision). When he was some seventy-five feet back
Plaintiff‘s witness Green, who was riding with Beatty, testified that on the morning previous, under the same conditions, he didn‘t see the train on the crossing until they were “right on it;” that he was twenty or twenty-five feet from the train when he saw it; that he was looking straight ahead at the time; and that they “were right in the dip just ready to go up the incline to the train” when he saw it.
Plaintiff‘s witness Todd, a taxi driver, saw deceased three blocks east of the Blue River Bridge and followed deceased‘s car forty to fifty feet behind at twenty to twenty-two miles per hour. Both were traveling west at the same speed and on the inside lane, the second lane from the north side. Witness traveled at the same rate and remained the same distance behind deceased up to the time of the collision. They hit the fog and smoke at the east end of the bridge. It got heavier as they proceeded west. The smoke and fog was so dense that after they “started up over the bridge,” witness could not see the outline of deceased‘s car, but could only detect the tail light. It was a heavy fog. Witness did not see the collision. He heard it. He stopped his car two car lengths (about thirty feet) behind deceased‘s сar and walked up. He testified: “Q. Did you notice there was a box car on that track before you got out of your car or after you got out of your car? A. After I walked up behind his car. Q. And where was his car at that time? A. It was rammed in under the freight train. . . . Q. Was that a heavy fog? A. It was on this side on the bridge. It wasn‘t so heavy on the east end but when you got up on the bridge and started this way it was really heavy. Q. Was there a fog on the east end of the bridge all the way up to the railroad track? A. Yes, sir. Q. Was there smoke all the way from the east end of the bridge to the railroad tracks? A. There was. Q. I believe you said the fog was so heavy you couldn‘t see Fitzpatrick‘s car? A. That‘s right. Q. You say the fog was so heavy you couldn‘t see this box car on this crossing? A. You couldn‘t. Q. And the fog was that heavy? A. The fog and smoke. Q. And the fog and smoke was sо heavy from some point east of this bridge all the way across this bridge and up to this railroad track, isn‘t that a fact? A. I didn‘t say it was heavy on the east end of the bridge. . . . I said it began on the east end of the bridge. Q. At any rate you never saw this box car? A. No, sir. . . . Q. And that condition existed from the time you reached the east end of the bridge and you went west some 200 feet, all the way up to the crossing, and you couldn‘t see this box car or any
The witness admitted the following prior testimony in depositions and said the questions were asked; that he made the answers; and that they were correct. “Q. Could you see an object in the street or a wagon or that sort of thing with the condition that existed there, with your headlights, 15 feet away from you? A. I don‘t believe I could have, no. . . . Q. What would be your judgment of the distance you could see an object there that night with the headlights that you had your car equipped with? A. Oh, I don‘t know, 7 or 8 feet, something like that. . . . Q. Suppose а man had been standing still in the street, what distance could you have seen him with your headlights, with the weather conditions that existed there? A. I doubt whether you would have saw him at all or not, if you had been driving 18 or 20 miles an hour. Q. You don‘t think you would have seen a man standing in the street at all? A. No. . . . Q. Your headlights were in good condition that night weren‘t they, Mr. Todd. A. Yes, sir.”
Plaintiff‘s witness Argo, who answered the fire call, testified: “Q. When you got down there near the track could you see out sideways? A. Not down there, not very far, no. Q. About how far could you see sideways down there? A. You couldn‘t see across the street. Q. You couldn‘t see across the street? A. No, sir. . . . Q. When you were 100 feet west of the railroad tracks in question there that morning, and your truck was traveling in the center of Fifteenth Street going east with the darkness and mistiness and fogginess that you say existed there that night do you think you could see to the south or could you see the south curb line of Fifteenth Street? A. I could see, you couldn‘t any more than see it, no. Q. You couldn‘t see beyond the south curbing of Fifteenth Street at any rate. A. No.”
Plaintiff‘s witness Spruce said that the first thing he noticed was the tail light of the car that stood just back of the car that had collided with the box car; that when he got to the west end of the bridge he did not see any box car or object blocking the crossing;
Plaintiff‘s evidence further tended to show that the top of the headlight glass on a 1937 Dodge stood forty-two inches above the ground; that the center of the light beam at the car was thirty-six inches above the ground; that at twenty-five feet distant, with driving lights on, the center of the beam was thirty-three inches above the ground, when the lights were properly adjusted to comply with the law and not go higher than forty-two inches in seventy-five feet; that if the rear of the automobile was raised seven inches the center of the beam of light at twenty-five feet would be lowerеd from thirty-three inches to twenty inches; that with the car level, and the low beam on, the center of the beam would be twenty inches from the ground at twenty-five feet ahead; that the light from headlights spread to a certain degree the farther you get away from an automobile, but as much as possible the beam is confined to the straight ahead position; that the witness had not measured the spread of the light beams or the top of the light area at twenty-five feet; that, with the driving lights on, after one crossed the crown of the Blue River Bridge and started down toward the railroad track, “the focus of the rays of your headlights would show below any object on the track, unless it would be the wheels or the trucks of a box car;” and that that condition would continue “until you started to level off to get ready to make the incline to cross the track;” that on level ground with the lights’ rays down they would strike about thirty-five to forty feet in front of you; that as an automobile would move from east to west over the bridge the automobile headlights would be thrown upward as one approached the crown of the bridge, then level off, then be cast down, until the car reached the lowest part of the swag, then level off again, and finally they would be thrown up as the car started up the grade toward the tracks, but the lights would not be thrown up until the rear wheels of the car were in the lowest part of this dip or swag thirty-three feet east of the tracks and the front of the car would be fifteen to twenty feet from the track.
Defendant‘s evidence tended to show that its engine and twenty-eight automobile cars were headed south on the east or main line track; that the train was on its way to the Chevrolet plant at Leeds; that, as the engine approached the Fifteenth Street crossing, the headlight
Defendant‘s evidence further tends to show that at the time of the collision visibility at the crossing was good; that there was no fog, mist or smoke at the crossing; that it was not dark or cloudy, but clear; that the street was dry; that some of the firemen answering the fire call, approaching from the west, saw the train five or six blocks away, as they approached; that two of the firemen, Davis and O‘Connor, were at the fire pump when the cab driver came up and volunteered the information that the deceased‘s car had passed him three or four blocks back at sixty to sixty-five miles an hour (this was denied by witness Todd).
The question of deceased‘s contributory negligence was for the jury unless it can and should be said, as a matter of law, that deceased failed to exercise the highest degree of care; that is, such care as would ordinarily be exercised by a very careful person under the same or similar circumstances. If the evidence bearing upon that subject is such as to leave no room for a difference of opinion and brings all reasonable minds to the conclusion that the deceased, at the time and place of receiving his injuries, failed to exercise the highest degree of care under the circumstances in the operation of his automobile, the plaintiff cannot recover. In determining whether the deceased was guilty of contributory negligence, as a matter of law, the evidence in plaintiff‘s favor, of course, must be accepted as true and plaintiff must be allowed the benefit of every reasonable inference in her favor which can be drawn from all the evidence.
It is unnecessary to rеview the evidence as to the density of the smoke and fog or the extent to which visibility was affected from the time deceased started up over the bridge at a distance of more than 300 feet from the crossing. Plaintiff‘s evidence, with reference to the conditions existing, has been set out at length. It must be considered as a whole and in a light most favorable to plaintiff. Much of the evidence relied upon by plaintiff to make a case of negligence
Respondent insists that the evidence “abundantly justifies the finding . . . that the atmosphere in the immediate area was so foggy, hazy, smoky, and murky that the lights of his (deceased‘s) automobile did not penetrate it and disclose the obstructing freight car,” and that “Fitzpatrick could not see the obstructing freight car.” Respondent assigns as one of the causes of the collision, “the fact that his (deceased‘s) vision, for the short space between the time he entered the pocket of fog and the time he reached the railroad tracks, was obscured by fog.” “A pocket of fog and smoke, . . . had settled in the area immediately east of the crossing so that the obstructing train was wholly obscured thereby.”
The respondent concedes that “the actual rate of speed is not in dispute. . . . It is fixed by the eyewitness Todd at about 20 miles per hour.” The rate of speed is further corroborated by the conceded results of the impact of the collision. At least the conceded facts do not indicate a lesser rate of speed.
Appellant‘s crossing had been in existence for many years. It was a main line crossing. The Frisco and Missouri Pacific crossed Fifteenth Street, three blocks further west. Deceased had worked for the Weber Engine Company in the vicinity of appellant‘s crossing as early as 1913 or 1914. He had lived in that district a number of years. For four or five years he worked for the Witte Engine Works one block south and one block west of appellant‘s crossing. He had operated an automobile since 1914. He had driven his automobile over the crossing on different occasions with at least two of the witnesses. Without objection, they testified that he was familiar with the crossing. For a number of years he had resided with his parents at 6420 East Sixteenth Street, nine or ten blocks west and two blocks south of the crossing. It was between 3 and 4 o‘clock A. M. at the time of the collision and deceased was traveling in the direction of his home. We may not infer that he was lost.
Deceased approached the crossing from the east, going west, thirty-three feet east of the crossing was a dip or swag in the pavement. Eighty and one-half feet east of the crossing was the Blue River Bridge. The bridge was 227 feet in length. The crown of the bridge was approximately 200 feet east of the crossing. There was a total difference in elevation between the crown of the bridge and the bottom of the dip of two feet and three or four inches. The east end of the bridge was lower than the west end. It is common knowledge that such changes in elevation of the highway would be noticeable to the driver or occupants of an automobile traveling at twenty miles per hour over the highway.
In view of all of the evidence the deceased must be held to have known of the crossing and that he was approaching it. Being familiar
A motorist, familiar with the existence of a railroad crossing, is chargeable with knowledge of, and hence is required to anticipate, the possible presence of a train standing upon or moving over the crossing. [State ex rel. Kansas City Southern Railway Co. v. Shain, 340 Mo. 1195, 105 S. W. (2d) 915, 921; Monroe v. C. & A. Railroad Co., 297 Mo. 633, 249 S. W. 644, 650; Kelsay v. Mo. Pacific Railway Co., 129 Mo. 362, 30 S. W. 339; Sheffer v. Schmidt, 324 Mo. 1042, 1054, 26 S. W. (2d) 592, 597; Fannin v. Minneapolis & St. Paul Railroad Co., 185 Wis. 30, 200 N. W. 651; Rowe v. Northern Pacific Ry. Co., 52 Idaho, 649, 17 Pac. (2d) 352; Gallagher v. Montpelier & Wells River Railroad Co., 100 Vt. 299, 137 Atl. 207, 209; Dumbolton v. Oregon-Washington R. & Nav. Co., 186 Wash. 433, 58 Pac. (2d) 806, 807.]
In the case of State ex rel. Kansas City Southern Railway Co. v. Shain, supra, a motorist, while his vision was obscured, drove ahead and crashed into the side of a freight car in a train, standing on the crossing, although he knew of the presence of the railroad tracks and that there might be a train thereon at the time he procеeded. The court said: “But if we are wrong in holding as a matter of law that plaintiff could have seen the freight car in time to have stopped, let us take the plaintiff at his own word, that he could not see the car when he was within 10 to 12 feet of the railroad track because of the swirling snow and dust. In that situation he was clearly guilty of contributory negligence as a matter of law in dashing forward as he did, when he could not see, with such force and violence that he crashed into the freight car for half the length of the engine even after he had been strenuously applying the brakes for a distance of 5 or 6 feet, or as much of it as the automobile had not traversed before the brakes took hold. It was his duty to exercise care commensurate with the circumstances, and if necessary, to сontinue to look until he could see ahead, even up to the crossing.”
In the case of Sheffer v. Schmidt, supra, the plaintiff was driving his automobile on a dark and unfinished highway upon an embankment. Having been over the road a few hours before, he knew the
In the case of Monroe v. C. & A. Railway Co., supra, it was held that a motorist approaching a known railroad crossing must employ effective means to determine whether or not danger is present and a failure to so bars recovery.
In support of her сontention that the issue of contributory negligence of the deceased was for a jury, respondent cites some forty cases from this and other jurisdictions. Some of the cases are guest cases, where the guest was only required to exercise the care of an ordinarily prudent person under like or similar circumstances (ordinary care). Some are cases from jurisdictions where the operator of a motor vehicle is only required to exercise ordinary care for his own safety and others are Missouri cases decided on the theory that the plaintiff, as the operator of the automobile, was only required to exercise ordinary care. In the case under consideration the deceased was required to exercise the highest degree of care and the cause was tried on that theory. A cаse for a jury on the issue of contributory negligence would, of course, be more easily made in a case where the deceased was only required to exercise ordinary care as compared with one where he is required to exercise the highest degree of care, as here. Other cases cited include (1) cases in which there was an absence of evidence and, therefore, a presumption that due care was exercised by deceased, (2) cases where there was conflicting evidence as to the exercise of care, (3) cases where the motorist looked, but due to special conditions of fog and other obstructions, he failed to see the approach of trains over crossings. Other cases deal with collisions with unеxpected obstructions in streets where there was no reason to apprehend that there would be an obstruction. In our opinion all cases cited are clearly distinguishable from the case at bar, and are not applicable under the particular facts in this case. We will refer to the more nearly applicable cases, however, they are not applicable here.
Respondent relies particularly on the case of Poehler v. Lonsdale (Mo. App.), 129 S. W. (2d) 59. Respondent says: “That, truly is a case on all fours with the case at bar.” In the Poehler case defendant‘s train blocked a crossing in St. Louis County at night for an unlawful period of time with no signals or warnings of the presence of the train. Plaintiff was unfamiliar with the highway, and did not know of the crossing, or that he was approaching a crossing. He approached at a speed of twenty miles per hour in a dense fog and
In the case of Love v. Kansas City (Mo. App.), 118 S. W. (2d) 69, the plaintiff drove his automobile into a girder of a viaduct just after he entered a smoky fog which killed his vision. “Plaintiff did not drive in a fog but struck the smoke and the girder at approximately the same time.” No attempt was made to show plaintiff knew the location of the viaduct or that he was approaching it or that he knew he was in that vicinity. The question of plaintiff‘s contributory negligence was held for the jury.
In the case of Elliott v. Mo. Pac. Ry. Co., 227 Mo. App. 225, 52 S. W. (2d) 448, 452, a motorist collided with a freight train on a crossing. The crossing had been blocked for an unlawful length of time on a foggy night and no signals or warnings provided. The cause was ruled on demurrer to the petition. Defendant contended the petition showed contributory negligence as a matter of law. The court said: “We are at a loss to discover wherein the petition discloses as a matter of law any such negligence on plaintiff‘s part. The petition says plaintiff, in approaching said crossing, ‘was in the exercise of due and proper care’ and ‘had no warning or signal of any kind’ of the existence of said obstruction and, by reason of the darkness, the foggy and misty condition of the atmosphere, the dark color, condition, and location of the cars, plaintiff could not, by the exercise of proper care, and did not, discover said cars until the automobile was too close to the obstructing cars to avoid the collision’ . . . It is not a case of failure or negligence to see that which was visible, but of inability to see what was in fact an obstructed, but appeared to be, an open roadway. . . . We do not controvert for a moment an idea that if plaintiff drove his automobile in the dark onto the crossing knowing that he could not see what, if anything, was there, he would be guilty of contributory negligence as a matter of law.”
In distinguishing the case at bar from other cases cited by respondent we may say deceased was not temporarily blinded by the lights of an approaching automobile or by a fog pocket; the collision did not occur immediately after he entered the fog; he did not encounter an obstruction in the highway in a place where he had the right to assume the way was clear. In this case, knowing of the existence of appellant‘s railroad crossing, deceased drove toward it through the dense fog and smoke for approximately 200 feet without slackening the speed of his automobile. In our opinion plaintiff‘s own evidence made an affirmative showing that the deceased operated his car at a negligent rate of speed and failed to exercise the highest degree of care for his own safety under the circumstances. In view
The judgment is reversed. Hyde and Bradley, CC., concur.
PER CURIAM:—The foregoing opinion by DALTON, C., is adopted as the opinion of the court. All the judges concur.