Dutton v. Kansas City Terminal Railway Ass'n

*983 WHITE, J. The plaintiff brought suit against the defendants for injuries received by him in Kansas City, in a collison of his truck with an engine of the Chicago & Alton Railroad Company. The trial court sustained a demurrer to the evidence at the close of the plaintiff’s case, and he appealed. The collision occurred March 31, 1920, early in the forenoon. The track upon which it took place belonged to the defendant, the. Terminal Railway Company, and the defendant Chicago & Alton Railroad Company operated its trains upon it under a lease-. The incident occurred in the yards at what was known as the Penrod crossing, an approach to the plant of the Penrod Corporation plant on the north side of the railway tracks. It is described in the petition as a highway, and the photographs in the record show it to be a plain, well constructed road across several railroad tracks. In the evidence it seemed to be assumed -without objection that it was a public crossing over a number of tracks running east and west. From the south it crosses a railroad track of the Atchison, Topeka & Santa Fe Railroad. One hundred and twenty-three feet further north it crosses the Terminal Company’s switch track. This switch track, immediately to the right of the crossing towards the east, branches off into what is described as a "maze of tracks” extending east for a long distance. Twenty-two feet north of the center line of the switch track was the center line of the eastbound main track used by the Railroad Company, and fifteen feet further north was the center line of the westbound main track on .which the collision occurred. Photographs introduced in evidence show the- surrounding buildings and other objects as they appeared to the plaintiff in his approach from the south to these crossings. He was driving a truck, and his father, W. C. Dutton, was sitting at his right in the same seat. The plaintiff drove across the switch track, across the eastbound main track, and on to and across the westbound main track where the extreme rear part of his truck was struck by a westbound train. Both the plaintiff and his father were severely- injured. The plaintiff was rendered unconscious for several days. He was unable to recollect any incident in relation to the collision, or anything that occurred after he reached a point several hundred feet before he got to the tracks. The plaintiff’s father testified and had a definite recollection of all that occurred up to the time that he was knocked insensible. As they drove northward on the Penrod crossing, the tracks to the west, at their left, were obscured by a number of obstructions, which it is unnecessary to describe, and their purpose was to discover first if a train was approaching from the west, because *984 the eastbound main track was the one which they must cross first after the switch track. As they reached the switch track the truck stopped and the elder Dutton looked east and could see along the westbound track, upon which the collision afterwards occurred, for a distance of sis or seven hundred feet. He said his son also looked. There was considerable movement in that section of the yards at that time. Eight or ten tracks -which branched off from the switch track to the right, were south of the main tracks, and one or more engines were switching around on those tracks. Dutton did not complain that they obstructed his view. He saw no train approaching from the east. The truck then started up and he continued to look to the east until he got well up on the switch track. Then his truck was approaching the eastbound track upon which he might have trouble with a train coming from the west. Therefore his attention and that of his son were directed towards the west. They did not look any further towards the east until the truck got upon the. eastbound main track, where they could see there was no danger from the west. By that time the front of the truck was almost upon the rail of the westbound track upon which the train was approaching, and he suddenly discovered a train bearing down upon them from the east, about a hundred feet distant. He called to his son who accelerated his speed and' got the truck across the westbound track when the engine struck the rear end of it. The evidence of the elder Dutton upon that point is as follows: . ‘ ‘ Q. Now then, as you approached this switch track, did you give any attention to learn whether there was any sound of an approaching train of any kind! A. Yes sir. “Q. What did you do? A. Stopped to .look and listen to see if we could see anything from the east. “Q. And where was it, with reference to this switch track, that you came to a stop there? A. Just as w\A came up to it. “Q. Did you hear any whistle or other warning signal of an approaching train? A. We heard nothing of any whistle or anything of that kind. “Q. What do you mean by that, a warning signal? A. Yes. “Q. Who was it who was driving the truck and brought the truck td a stop at that point ? A. The boy. “Q. You are referring to your son, the plaintiff? A. Yes sir. “Q. After you heard no signal of any approaching train, then what did' you do? A. We started ahead across the tracks. “Q- I will show the jury first Exhibit H which the photographer says is a photograph taken from the center of the roadway over the north rail of the switch track looking east. Now when you came on over the switch track when you left the point where you stopped to listen, and continued north, how long did you continue to look, if *985 at all, to the east? A. Until we got well up on tbe switch tracks so we could see around the cars. “Q. How far down to the east could you see when you last looked at that time to the east? A. I would estimate about 600 or 700 feet. ‘ ‘ Q. Now then, when you last looked down to the east, when you were up there on the switch track, did you see anything of an approaching train coming from the east? A. No sir.” He then stated that they looked west to see if a train were coming from that direction upon the eastbound track; that they were driving approximately three miles an hour, “maybe not that fast;” that the seat of his truck wás eight feet from the front end and the truck had a total length of nineteen feet. One W. Atwell testified for the plaintiff. He had been an employee of the Terminal Eailway Company; at the time of the occurrence he was working in the switch yard east of the point of collision; he saw the train coming and estimated its speed at at least twenty-five miles an hour. It passed him about a hundred feet east of the Penrod crossing. "When he saw the train about a hundred feet from the crossing the truck was about two-thirds of the way across the track. The time at which it occurred was about 8:14 a. m. The track was dry. He testified further that a passenger coach extends over the rail on each side 2 feet and 6 inches; that a freight engine extends over the rails about the same as a passenger coach, and that applied to Engine No. 9, which was drawing the train that morning. The engineer who drove the train was made a witness for the plaintiff. ' He testified that he first saw the truck right in front of the engine. He struck it. It was so close that he would have to split a second from the time he saw it. He ran the train approximately 400 or 500 feet before it was stopped after the collision. When he was about a hundred feet from the crossing, and the front of the engine 60 or 75 feet from the crossing, the fireman called, “Blow the-whistle.” He gave two blasts of the whistle, the second.one just as he struck, then he put on the brakes. He testified that he would come within sight of the crossing between 600 and 1,000 feet from it, but that the right rail at the crossing would go out of his view, where he sat, when he got within 200 feet of the crossing. .He sounded no whistle or warning of his approach until the fireman called to him to blow the whistle. The plaintiff also pleaded and introduced in evidence an ordinance of Kansas City which limited the speed of trains to six miles an hour. I. The trial court sustained a demurrer to the evidence solely on the ground that the plaintiff, as a matter of law, was guilty of *986 contributory negligence which, precluded his recovery. In the argument it is not claimed that the plaintiff was negligent after he started the truck across the eastbound track. _^t ^at time, after he had withdrawn his attention from the west to see if a train were approaching from that direction, the front of his truck was already in danger from a train on the westbound track, and whether his judgment was at fault in attempting to get on across, it is not claimed that he was negligent, as a matter of law, in the attempt. The respondent, ref erring, to what Dutton said about stopping to look and listen, thus presents the point relied upon: “The conclusion is irresistible that either the plaintiff and his father did not look or listen for the approaching train, or that they did look and saw the approaching train and attempted to beat the train over the crossing, and in either of' such events we submit that recovery must be denied and that the learned trial court properly gave the peremptory instructions requested.” In support of that position respondent cites a number of crossing cases announcing the principle that one approaching a railroad track must look and listen for an approaching train, and when .to look is to see the presumption is that the party either saw or failed to look. In all such cases the evidence showed that the person injured either did not look or the evidence was conclusive that the train or car which caused the injury was in plain sight. The respondent assumes that to be the case here, and figures that, with the speed of the train shown by the evidence, and the speed of the truck at three miles an hour, which Dutton swore to, when the plaintiff stopped his truck as he drove up to the switch track he would have seen the train if he had looked, because it was within the range of vision at that time. We sometimes discredit positive testimony of a witness when it is in direct conflict with known physical facts. , The only physical facts which could make nugatory this statement of the elder Dutton would be that the train which afterwards struck the truck was in plain view when the truck stopped at the switch track. Respondents figure that the distance from the center of the switch track to the center of the track on which the collision occurred was 35 feet; that the plaintiff was going three miles an hour or 4 2/5 feet per second; the train was running at 25 miles an hour, or 36 2/3 feet per second, and figuring 8 seconds in which the truck would travel 35 feet, the train would in the same time travel less, than 300 feet, and therefore it must have been within the range of vision when Dutton said he looked east. The assumption is that the distances and' the rates of speed of the truck and of the train, as given by the witnesses, were absolutely correct. It was 35 feet from the center of the switch track to the center of the westbound track where *987 the collision occurred. The truck stopped when the wheels reached the rail of the switch track, and there the observation was made. Dutton, however, continued to look until they were, on the switch track, 35 feet from the center of the westbound track. But the truck was not struck until it had passed clear over the westbound track, so that the rear only was hit one foot from the end. The plaintiff’s seat was 8 feet from the front end of the truck which was 19 feet long, and he therefore sat 11 feet from the rear, and he was 10 feet beyond the point of contact. The overhang of the engine was 2% feet, and the rail was 2 feet 4 inches from the center of the track; the point of contact was in the neighborhood of 5 feet beyond the center of the track, and the plaintiff was 15 feet beyond the center of the track. The plaintiff must have traveled, not merely from the time he stopped before driving on the switch track, but from the center of the switch track, when he last looked to the east, 49 or 50 feet. The elder Dutton said' he was going three miles an hour, and that" it may have been less. Instead of going 4 2/5 feet per second, he may have been going less than 4 feet per second. After stopping at the switch track it took some appreciable time to start and get in motion again, so instead of reaching the point of collision in 8 seconds, as defendant argues, it might have been 12 or' more seconds from the time he last looked to the east, and longer than that from the time he stopped and made a thorough survey to the east. In that time the train, which was going not less than 25 miles an hour, and may have been going considerably faster, might well have been further than the point at which it could be seen. These, of course, are probabilities. The evidence is not definite as to the speed of either the truck or the train, nor the distance at which the train could be seen. The elder Dutton said he looked carefully to the east and saw no train coming, and' he could have seen it if he had been within the range of vision. ¥e have no right to say, as a matter of law, that his testimony was false and that the jury had no right to consider it. The most that can be said is that probably the train was in sight when the elder .Dutton looked for it and failed to see it. It was for the jury to say whether his positive testimony is true; whether the testimony as to distance and probable rate of speed, contradicted his. statement. The jury might have believed' his statement that he looked carefully at the time the truck stopped, and until he-got onto the switch track, and that the train was not in sight at that time. His attention after that was directed to the west until he got within the danger zone. Whether he was negligent in assuming that the train would not run at a rate of speed so great and dangerous as to collide with him while he traveled that distance was a question for the jury. [Monroe v. Chicago & Alton, 280 Mo. l. c. 491; Allen v. C. B. & Q. Ry. Co., 281 S. W. 737; Ward v. Mo. Pac. Ry. Co., 277 S. W. *988 908; Zumwaldt v. C. & A. Railroad Co., 266 S. W. 717.] Tbe case last cited is very similar in facts and in principle to this case. The respondent ridicules the statement of the appellant that he could not remember anything that occurred while approaching the crossing, and knew nothing of the collision. This is an argument that may be addressed to the jury. It is a well authenticated scientific fact that anyone rendered insensible by a blow does not remember what struck him and sometimes his memory is obliterated for a few seconds before the blow was struck. In this instance, from the distance which the plaintiff traveled, his amnesia must have covered a period of half a minute or more, yet a physician testified for the plaintiff that the effect of an injury such as the plaintiff suffered might knock, out his memory for that length of time. II. The plaintiff pleaded facts which would bring the case within the humanitarian rule. We find in the record no claim that the Penrod crossing was not a public way. It is so alleged in the petition and spoken of as a public crossing by the witnesses. We think the evidence sufficiently shows that it was a crossing used by the public, by anybody who had occasion to use it, although it may have been established in the first place for the convenience of the Penrod Walnut Corporation. In that case the defendant had no right to rely upon the presumption that the track was clear. The public had a right to use it. The defendant’s engineer testified that he carne within view of the place where the truck was said to be when six hundred or more feet from the point of contact, and as he approached the crossing it was obscured from his view when he got within 200 feet of it on account of his position on the right-hand side of the engine. But the fireman was on the other side of the engine all the time and within plain view of the crossing for six or seven hundred feet before the collision. If he had been looking he would have seen the truck approach the crossing, with the apparent purpose of going across the tracks. Ordinary care required that some sort of warning should have been given. From the time the front part of the truck came within the danger zone at a point where it would have been struck by the on-coming train, until, it was struck, it traveled the. full length of the truck and the width of the engine less one - foot — a distance of nearly thirty feet. If the truck was going at one-eighth the speed at which the train was going, as the evidence seems to indicate, danger to the truck was perfectly apparent to the fireman of the train for at least .240 feet, and almost that even if the truck made a sudden spurt of speed when the plaintiff saw the train. From the fact that the rear one foot of the truck was struck it is certain that only a quarter of a *989 second, or even less time, if the truck was speeded up at the last, was required for the truck to pass out of danger. Even the slightest decrease of speed by the train would have prevented the injury. The engineer testified that he had an emergency appliance for a quick stop, which he didn’t use; that he did not attempt to stop until after the collision. Even in two hundred feet, five or six seconds before the collision, it is possible that he could have decreased the speed of the train. In fact he did stop it by using the ordinary method in 400 or 500 feet. It certainly was a question for the jury whether the engineer, after the fireman could have seen the plaintiff in the place of danger, could have slackened the speed of the train. The blast of the whistle which the engineer gave was useless, because the plaintiff had' already seen the train, and the same effort used in decreasing the speed probably would have prevented the injury. The judgment is reversed and the cause remanded. All concur. Blair, J., in paragraph 2 and the result.