227 S.W. 877 | Mo. Ct. App. | 1921
Plaintiff was injured and his automobile damaged while attempting to cross Park Avenue in the city of Poplar Bluff on June 15, 1919. Plaintiff alleged the failure to sound the whistle or ring the bell, and also the failure to observe an eight mile speed ordinance in force in said city. The answer was a general denial and a plea of contributory negligence. A jury trial resulted in a verdict for $300 for personal injury, and $100 for damages to the automobile. Failing to get a new trial defendant appealed.
Plaintiff was on Park Avenue in a Ford automobile approaching the crossing from the East on a clear day about 11:50 a.m. The railroad tracks run nearly North *590 and South, and intersect Park Avenue at about right angles. As plaintiff approached the crossing there was an engine with two cars backing South over the crossing on the track immediately East of the track where the collision occurred, and plaintiff stopped, but left his engine running, until this engine cleared the roadway of the street, and then he proceeded to cross. The train that collided with plaintiff was a passenger train approaching from the South. The distance between these two tracks was 10 or 12 feet. The depot was North of this crossing some three or four hundred feet. The bell on the engine on the side track was ringing as that engine and two cars passed over the crossing. This engine stopped after the crossing was cleared, and plaintiff's view to the South was obstructed until he passed the standing engine. Plaintiff says that he was driving his car in low, and was moving at the rate of about three or four miles per hour. The train that struck plaintiff consisted of the engine, a baggage car and two passenger coaches, and after the collision the train ran the length of the engine and two of the coaches before stopping. Plaintiff testified that he looked and listened for the approach of a train when he was standing on the East side of the switch track, but that he did not hear this approaching train. He did not look after he had reached a point where he could see, and where looking would be effective.
Plaintiff alleged the failure to sound the whistle or ring the bell, and offered evidence of a negative character to show that neither was done, but defendant's evidence was that the whistle was sounded at a crossing South of Park Avenue, and that the bell was ringing as this street was approached and crossed. Plaintiff went to the jury, however, with only the alleged violation of the speed ordinance as a ground of negligence.
The only question we need to consider is whether defendant's demurrer at the close of the whole case should have been sustained. That is, does the evidence show that plaintiff was guilty of contributory negligence *591 as a matter of law. We are of the opinion that the evidence so shows. When plaintiff's view was obstructed by the switch engine and the two cars, it served no purpose to look, and the noise of the switch engine and his automobile engine evidently rendered listening ineffective. After the switch engine cleared the roadway he proceeded to cross without then looking for an approaching train. Plaintiff was 28 years of age, and had lived in Poplar Bluff all his life, and was thoroughly familiar with this crossing. He knew there were a number of tracks, and he could not assume that he had discharged the duty he owed himself when he stopped for the switch engine, and then look and listened at a time and place when he could neither see nor hear. Had he used that care that the law required of him when approaching this railroad crossing he would not have been injured. It is apparent, considering the speed plaintiff was driving after he started up, and considering the distance between the tracks that had he looked he would have seen and could have stopped his automobile and averted the collision. The track on which was the approaching train does not run exactly North and South, but a little Northeast and Southwest. A photograph introduced in evidence and in the record shows that one in a Ford automobile could see to the South for quite a distance about the time the front wheels reached the West rail of the track on which was the switch engine. It is so apparent that had plaintiff looked he could and would have seen and could have stopped there is scarcely room for argument.
Plaintiff under the facts here could not presume that the eight mile ordinance would be observed. [Green v. Railroad,