State Ex Rel. Kansas City Pub. Serv. Co. v. Bland , 354 Mo. 79 ( 1945 )

[6] The grounds of my dissent are as follows. Concededly, if the injured party fails to look or listen at a railroad crossing when by doing so the danger would be clearly apparent, his failure constitutes contributory negligence as a matter of law. State ex rel. K.C. So. Ry. Co. v. Shain, 340 Mo. 1195, 1201(3),105 S.W.2d 915, 918(6). Under this decision the same is true when he cannot see or hear the train at all and yet proceeds across the track without exercising care commensurate with the circumstances. See also Borrson v. M.-K.-T. Rd. Co., 351 Mo. 229, 248(6), 172 S.W.2d 835, 847(11).

But in the instant case the view was only partly obstructed. The plaintiff could not see over the tractor-trailer parked south of his own truck, but he had looked just before he mounted his truck and after he got on it he could see to the south through the windows of the trailer and through the 18 inch space between it and the trailer coupled to it. He testified he did look through or between these and could not see any streetcar approaching for a distance of 200 to 250 feet. He started up, moved 4 or 5 feet, looked to the north but saw no streetcar there, and then when the front end of his truck had gone 7 or 8 feet further east and was just starting over the near rail of the streetcar track, and his view from his cab had cleared the trailer-tractor, he looked again to the south and saw the streetcar approaching 65 to 75 feet away at a speed of 15 to 20 miles per hour.

[657] There was a "Slow" sign hanging on the trolley suspension wires almost opposite the place where the plaintiff's truck had been parked at the loading dock, and traffic was congested there. Company instructions required motormen to reduce speed to about 5 or 6 miles per hour at such places. The principal opinion says respondents' opinion does not state any facts from which an inference could be drawn that plaintiff knew of the sign or the slow orders. But the sign was hanging nearly in front of his truck, and respondents' opinion does say both plaintiff and the motorman knew of the traffic congestion, 181 S.W.2d l.c. 184(5). This was enough to warrant an inference that the plaintiff rightfully expected the streetcar to approach at a reduced speed. Our manslaughter cases for driving recklessly into a crowd on the public highway forbid any assertion to the contrary. State v. Studebaker, 334 Mo. 471, 66 S.W.2d 877; State v. Melton, 326 Mo. 962, 33 S.W.2d 894.

In my opinion these facts are not the same or similar to those in the cases cited in the principal opinion as announcing a general rule admitting of no exception. They come nearer being in line with those in State ex rel. Q., O. K.C. Rd. Co. v. Trimble (Div. 1), 254 S.W. 846, 849-50(2); State ex rel. Maclay v. Cox,320 Mo. 1218, 1226-8, 10 S.W.2d 940, 943(2). Under these decisions it seems to me the plaintiff's contributory negligence was a question for the jury. Douglas, J., and Clark, C.J., concur.