106 S.W.2d 462 | Mo. | 1937
Lead Opinion
Following a verdict of $10,000 for damages, personal injuries and property, John E. Grimes appeals from an order granting the St. Louis-San Francisco Railway Company a new trial.
The case involves a highway-railroad grade intersection accident between plaintiff's southbound automobile and one of defendant's southbound passenger trains at the intersection of Kansas State Highway No. 7 and defendant's tracks approximately one mile north of Columbus, Kansas, on November 23, 1928, about nine P.M.
The trial court sustained defendant's motion for new trial on the ground plaintiff was guilty of contributory negligence as a matter of law. Plaintiff contends, under the facts, he may not be held guilty of contributory negligence as a matter of law; conceding the propriety of the court's action under the Kansas law if he was so negligent. The following Missouri cases, among others, review the Kansas law on contributory negligence: Tate v. Missouri-K.-T. Ry. Co. (Mo.), 93 S.W.2d 873, 876(3); Gersman v. Atchison, T. S.F. Ry. *132
Co. (Mo.), 229 S.W. 167, 169(3, 4); Woodward v. Bush,
The involved physical facts [consult Tate v. Missouri-K.-T. Ry. Co. (Mo.), 93 S.W.2d 873, 876(2); State ex rel. Kansas City So. Ry. Co. v. Shain (Banc, June 5, 1937),
Plaintiff was approximately forty-seven years of age and had been a resident of the State of Kansas a number of years. He, his mother and two aunts were in his Pontiac sedan southbound on said highway from Ft. Scott, Kansas, to a hospital in Shidler, Oklahoma, to see a relative who had suffered a broken limb in an accident. Mrs. Hester Grimes, one of the aunts, and plaintiff were the only eye witnesses testifying on behalf of plaintiff. The ladies were engaged in conversation, but plaintiff was taking no part therein. Plaintiff testified the moon was shining part of the time; and that it was so he could see. Mrs. Grimes testified: "It wasn't a dark night. Q. Rather light? A. Yes, sir, it was a nice night." Plaintiff testified that his Pontiac was a new car, having been operated about one thousand miles, and the lights, which were burning, and the brakes were in good condition; that he was seated on the east side of his sedan with his window halfway or more down; that this was his first trip over that particular highway and the existence of the crossing was unknown to him; that there was nothing to bother him or distract his attention; that as he proceeded south he was traveling at a speed of 20 to 25 miles an hour, was "listening for everything," was looking to each side of the road, and "was looking for all the signs there was, watching for them all the way along, because that was a strange road;" that he observed a sign (the highway "R R" sign) north of the crossing, but he could not see what was on it; that he did not notice the "wing" fence, the railroad roadbed or track until he reached the swerve (turn or curve as he designated it) in the highway when he first noticed the railroad rails south of the intersection, about 30 or 40 feet distance; that this was so because the lights shine out ahead "quite a ways" and the intersection, the highway and the railroad being practically on the same level, was covered with gravel (the highway was a chat road) and dust; that as he made the turn he knew there was no train to the south and he looked north, saw nothing; that he didn't see and he didn't hear the train; that if the engine's headlight was burning, *134 he didn't see it; that he thinks it was not burning; that if it had been burning, he knows he could have seen it; that he thinks he could have seen the rays of the headlight, and because he saw no rays, "there was no headlight;" that there might have been lights in the passenger coaches; that if he saw the railroad cross-arm crossing sign south of the crossing, the accident happened so quick he forgot it; that his Pontiac did not move over ten feet after he saw the track until it was struck by the train; that he was an experienced automobile operator and could, under the existing conditions, stop his Pontiac in a distance of ten to twenty feet; that he observed an automobile following him, the occupants of which testified they were about a quarter of a mile north of plaintiff's car at the time of the impact. Mrs. Grimes' testimony adds nothing of value to plaintiff's.
Defendant's evidence, briefly put, adduced, among others, from occupants of two other automobiles at the scene, was to the effect, among other things, that the train was traveling between 40 and 50 miles an hour, with its headlight and the lights in the coaches burning and plainly visible from the highway, and with its whistle sounding. The moon was in the first quarter, fading to the full moon.
Plaintiff to sustain his contention that he was not contributorily negligent as a matter of law stresses the cases of Harwood v. Missouri P. Railroad Co.,
Plaintiff asserts the Harwood case is a "grey mule" authority, and that he has no case which states the law applicable here with greater clearness, cogency and certainty. In that case the Kansas Supreme Court sustained a judgment in favor of Harwood, who was struck and injured by a train at an approximately right angle highway-railroad grade intersection. Harwood "was a stranger and did not know where the crossing was;" "while he was keeping a lookout ahead he did not see the track or rails and was unaware of the presence of the railroad until he was upon it;" the day was misty and a slight rain was falling;" "the mud, weeds and absence of a crossing sign prevented him from discovering the railroad in time to have avoided the accident." The court said: "The defendant rightly contends that a traveler who sees a railroad track is already warned of danger, and that if a view of the road is obscured it is incumbent on him to stop, look and listen before going upon the crossing, and where a view cannot be otherwise obtained he is required to take the added precaution to go to a place where a view of the track may be had, and that a failure to take these necessary precautions is such negligence as bars a recovery. These rules . . . are well established *135
by the authorities, but they can only be applied where the railroad track is visible or known to the traveler. . . . It is the duty of the driver of an automobile to keep a lookout ahead for possible dangers, and if he does so he will ordinarily see a railroad track which passes across a highway. . . . Everyone is required to use his faculties to discover a visible danger. . . . There would be good grounds for the contentions of defendant if the plaintiff had seen the track or had known that he was approaching a crossing. The authorities cited apply to a traveler who fails to look or listen when he is approaching a railroad, the existence of which he knows or has had the warning which thetrack itself affords and fails to take precautions for his own safety. These rules, as we have seen, do not apply where the crossing is not visible to the traveler and he is not aware of its existence." (Italics ours.) The Hansen case involved a hore-drawn wagon. The accident occurred about 8 P.M. on a dark night. The highway was on a steep decline at the highway-railroad intersection and the issue passed off on the duty of the traveler to stop and listen at the crest of the hill, 245 feet from the track, just before entering a cut which precluded a view of the approaching train. The court was unable to concur in defendant's contention that "deceased was guilty of contributory negligence by failing to look and listen when at the crest of the hill;" and, considering the darkness and absence of some knowledge on the part of deceased of the dangers to be avoided, stated: "he was not aware that he could not thereafter see down the railroad track to the southeast until he was too close to the crossing to protect himself from a train coming from that direction." The decision makes no mention of any railroad cross-arm crossing sign and, of course, an automobile with headlights burning was not involved. Woodward v. Bush,
[1] Heinen v. Atchison, T. S.F. Ry. Co.,
[2] In the instant case, the night was not dark, rather light, and plaintiff could see. There was no mist, rain or fog. Plaintiff, an experienced driver, was traveling over a strange road, was on the alert, with his window halfway or more down, was listening for everything, watching for all signs, and looking to each side of the highway. The headlights of his Pontiac were in good condition, yet he testified he did not see the railroad track until within 30 or 40 feet of it. If so, either he was not as alert as his testimony would indicate or his headlights were not in good condition. If the headlights revealed objects for a distance of only 30 or 40 feet, he was negligent in operating his automobile at a speed of 20 to 25 miles an hour. It is a matter of common knowledge that the light rays from an automobile headlight diverge and illuminate not only the road ahead but to the side for a considerable distance. If they did not the operation of motor vehicles at night would be a menace to the public and afford the operator only limited opportunity to avoid injuring others or to protect himself. Plaintiff passed within a few feet of and saw the highway "R R" sign, of some significance, but did not give it sufficient heed to ascertain what was on it notwithstanding he was watching for all signs; and we are at some loss to account for his failure to observe the railroad cross-arm sign as, from the physical facts, the swerve in the highway was not sufficient to cause it to be without the rays of his automobile headlights if in good condition. The intersection, the condition of which is stressed *137
by plaintiff, was not the only warning of the existence of a converging railroad track as plaintiff proceeded south. The "wing" fence, marking the location of the cattle guards, was 100 feet or more north of the intersection. It and the railroad cross-arm sign were painted white to reflect, not absorb, the light rays. The railroad and the highway were not separated by any fence from the cattle guards south of the intersection and beyond. Two hundred feet north of the intersection, the center of the railroad track was but 35 feet from the center of the highway over which plaintiff was traveling; 100 feet north, it was but 22 feet, converging toward the highway up to the point of intersection. We think the "wing" fence, the cessation of fencing at the cattle guards, and converging railroad, elevated above the surrounding terrain and free from weeds and grass, north of the intersection, under the conditions disclosed by this record, observable to an automobile traveler exercising ordinary care while approaching the intersection from the north. If observable, they constituted a warning of the existence of a railroad and the nearness of an intersection with the highway. Under the Kansas cases, plaintiff, an experienced and capable operator of motor vehicles, had ample warning to permit of his stopping, looking and listening. The converging railroad track and slight swerve in the highway, observable ahead, gave notice of the nearness of the crossing. His failure to observe the physical facts shows he was off his guard. When he was 100 feet north of the intersection, defendant's train was within 200 to 300 feet of the intersection, and well within view, and maintained, under the evidence, a corresponding position as plaintiff neared the intersection. It was observed and heard by all parties traveling the highway who testified other than plaintiff and Mrs. Grimes. "The fact that the plaintiff would have been obliged to turn in his seat and look backward is of no consequence." [Reader v. Atchison, T.
S.F. Ry. Co.,
The order of the circuit court is affirmed and the cause is remanded. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur. *138