Opinion
No. 41370.
July 10, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, THOMAS R. HUNT, J.
Nelson E. Johnson, A. C. Popham, Sam Mandell, Kansas City, for appellant, Popham Thompson, Popham, Mandell Trusty, Kansas City, of counsel.
Carl S. Hoffman, St. Louis, Frank J. Rogers, Kansas City, for respondent, Cooper, Neel, Sutherland Rogers, Kansas City, of counsel.
This is a Kansas railroad-automobile crossing collision case. Claude K. Donald sued the Missouri-Kansas-Texas Railroad Company, a corporation, for $15,000 damages for injuries sustained when the truck he was operating and one of defendant's trains collided on an intersection. He charged defendant with primary negligence. The trial court sustained defendant's motion for a directed verdict and the only issue presented is whether plaintiff was guilty of contributory negligence as a matter of law in that he could have seen the train if he had looked in sufficient time to have stopped his truck and avoided the collision.
The collision occurred at the intersection of U.S. Highway No. 69 and defendant's track near Louisburg, Kansas. U.S. Highway No. 69 is a heavily traveled arterial highway, having a pavement eighteen feet wide, running from Kansas City south through points in eastern Kansas and on into Oklahoma. The highway, extending north and south, and the railroad track, running east and west, intersect at approximately right angles, with the railroad track curving northeastwardly a short distance east of the intersection. The highway is level for a distance of approximately 310 feet north and 150 feet south of the track.
East of the highway and north of the railroad track is an embankment. The original embankment nearest the highway-railroad intersection had been cut down. C. E. Critchfield, a civil engineer, testified on behalf of plaintiff. He made a plat and contour map, drawn to scale, of the physical surroundings at the intersection, including the embankment. He testified that the first level of the embankment is approximately six feet high, and holds its height pretty well with respect to the highway. As one proceeds eastwardly along the railroad track the height of this first level of the embankment reaches about six-and-one-half feet at a point 130 feet east of the intersection, never going above that height, and drops down to five feet at a point about 250 feet east of the intersection. He testified the railroad was on a one percent ascending grade towards the east from the intersection. The second embankment is on a higher level, stated to be twelve feet. It begins according to the plat at a point approximately 120 feet north of the railroad track and about thirty feet east of the east edge of the highway pavement and angles southeastwardly to a point 90 feet or more east of the pavement and, say, 10 to 15 feet north of the north rail of the track, causing the six-foot embankment to create a triangular plane between the highway, the railroad track, and the higher embankment. Mr. Critchfield testified that according to actual measurements with a steel tape he could see the rails of the track for a distance of 285 feet east when at the crossing. Plaintiff's witness Eugene J. Rudloff testified that from a point six feet north of the crossing one could see the rails of the track for a distance of 297 feet east of the crossing and, of course, also could see a handcar, which would be above the rails, or a locomotive, twelve feet high.
Plaintiff, who was twenty-four years old, his father R. C. Donald, and L. C. Gretten had trucked some cattle from Kincaid, Kansas, to Kansas City, and were returning home on the afternoon of January 10, 1938. They were proceeding southwardly in two Chevrolet one-and-one-half ton trucks at a speed of 30 to 35 miles an hour. Plaintiff was operating the lead truck. Gretten was driving the second truck and plaintiff's father was riding with him. The trucks were about 300 feet apart.
Defendant's train consisted of a locomotive and tender, a water car, and a combination coach. The train was between 155 and 170 feet long and was proceeding west-wardly, approaching the crossing. One of plaintiff's witnesses put the speed of the train at 40 miles an hour, while defendant's witnesses put it between 12 and 15 miles an hour.
Plaintiff was thoroughly familiar with the crossing. The crossing was not protected by automatic warning signals but had the usual railroad crossing stationary warnings. Plaintiff heard no bell or whistle, although the trainmen testified the whistle had been sounded for the crossing and also for the station at Louisburg.
Plaintiff testified that he looked in all directions as he approached the crossing, east, west, south, and also through the rear vision mirror to ascertain if he could slacken speed, and that he continued to look for trains as he approached the crossing but did not see any. He put himself 50 feet north of the track when he looked to the east.
Plaintiff was driving in high gear and to shift to second gear one had to slacken speed to five miles an hour. As he approached the crossing, plaintiff shifted from high to second gear to slow down to a lower speed; answering, when asked where this occurred, that the truck was 20 feet north of the track. He could stop the truck in ten feet at five miles an hour. In a deposition plaintiff testified that when he was 20 feet north of the track he was traveling 15 miles an hour and continued at that speed. He though he could stop the truck in possibly 20 feet at 15 miles an hour.
Plaintiff did not recall attempting to apply the brakes. He remembered "meeting the train just like a black flash." In a deposition, he put his truck about four feet north of the track when the cowcatcher of the locomotive was a couple of feet on the slab. The right front of the cowcatcher and the left front of the truck collided.
It is the law of Kansas, as quoted in Tate v. Missouri-Kansas-Texas Ry. Co., Mo.Sup., 93 S.W.2d 873, 876 (citing cases), that: "`If, when the driver of an automobile approaches a railroad crossing, he is prevented by obstructions from seeing whether the track is clear, it is his duty to look for an approaching car after emerging from the obstructed zone and before attempting to cross. If he fails to do so, he is guilty of contributory negligence as a matter of law.'" See also Williams v. Iola Electric R. Co., 102 Kan. 268, 170 P. 397, 398 [2, 4]; Pritchard v. Atchison, T. S. F. Ry. Co., 99 Kan. 600, 162 P. 315. Consult, among others, Borrson v. Missouri-Kansas-Texas R. Co., 351 Mo. 229, 172 S.W.2d 835, 848 [10, 11, 14]; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185, 186 [2-4].
Plaintiff's cases to the effect that the law of Kansas does not compel a motorist to stop, get out of his car and reconnoiter before proceeding across a highway-railroad grade intersection where to do so would not add to his safety in crossing the railroad track are not controlling under the instant facts. Torgeson v. Missouri-Kansas-Texas R. Co., 124 Kan. 798, 262 P. 564, 565, 55 A.L.R. 1635; Sing v. St. Louis S. F. Ry. Co., Mo.Sup., 30 S.W.2d 37, 41 [11, 12]; Pokora v. Wabash Ry. Co., 292 U.S. 98, 104, 54 S.Ct. 580, 78 L.Ed. 1149, 1152, 91 A.L.R. 1049. The Torgeson case, supra, states: "If the situation is such that he can add to his safety by having his automobile come to a full stop before going on the railroad track and there looking as well as listening for a train * * * prudence and due care would require that he do those things."
Giving consideration to the physical facts as established by actual measurements and by photographs and the evidence on behalf of plaintiff, to look was to see defendant's approaching locomotive and train when plaintiff was 20 or more feet north of the railroad track; and plaintiff's testimony that he looked and could not see defendant's train must be disregarded as contrary to the physical facts. If he looked and did not see, as he says, he did not look with any degree of care and was contributorily negligent. Carner v. St. Louis-S. F. Ry. Co., 338 Mo. 257, 89 S.W.2d 947, 950 [5], 952, 953. Tate v. Missouri-Kansas-Texas Ry. Co., Mo.Sup., 93 S.W.2d 873, 876[2], in holding plaintiff failed to make a submissible case with respect to a grade intersection collision in Kansas, stated: "Evidence contrary to physical facts will not be considered."
If plaintiff were traveling five miles an hour when he shifted gears 20 feet north of the track and attained a speed of 15 miles an hour when he reached the track, his average speed was 10 miles an hour for the last 20 feet. Plaintiff could stop within ten feet at five miles an hour. The highest estimated speed of defendant's train was 40 miles an hour, or four times as fast as plaintiff's average speed for the last 20 feet traveled by the truck. The locomotive, traveling four times as fast as plaintiff's truck, was 80 feet east of the pavement when plaintiff's truck was 20 feet north of the railroad track. An embankment five, six, or six-and-a-half feet high extending northwardly for 120 feet, about 30 feet east of the highway, and extending eastwardly for more than 90 feet, about ten feet north of the railroad track, would not prevent plaintiff seeing defendant's locomotive and train 80 feet east of the highway pavement. If the speed of plaintiff's truck be increased or the speed of defendant's train be decreased from the above mentioned speeds then defendant's train was nearer the crossing when plaintiff's truck was 20 feet north thereof and plaintiff's case is not aided.
The judgment should be and is affirmed.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.