Burge v. Wabash Railroad Company

• Citation: 148 S.W. 925,244 Mo. 76
• Parties: MARY C. BURGE v. WABASH RAILROAD COMPANY, Appellant
• Decision Date: 10 June 1912
• Court: United States State Supreme Court of Missouri

148 S.W. 925

244 Mo. 76

MARY C. BURGE v. WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri

June 10, 1912

Appeal from Randolph Circuit Court. -- Hon. A. P. Terrill, Judge.

Reversed.

J. L Minnis and Robertson & Robertson for appellant.

(1) The defendant's demurrer at the close of the evidence for the plaintiff and its demurrer at the close of all the evidence should have been granted. At the close of the evidence for the plaintiff, the evidence showed that a view of the train nine hundred feet away could be obtained at any time while a person was going up the incline to the tracks or while upon the tracks. Furthermore the evidence showed that the train was heard by a person further away from the track than the deceased, at the time deceased was thirty-five feet from the crossing and further, that the train was visible to a person at a point nearly one hundred feet further north and away from the crossing than the plaintiff's husband, at the time he was about to go upon the crossing. No witness for the plaintiff states that the decedent did stop, look or listen but some say he did none of these things. But whatever of presumption of due care, if any, can arise, it is certainly rebutted by the physical facts and the testimony of witnesses, who in less advantageous positions than the deceased, both heard and saw the train before the plaintiff got upon the track, and it must be concluded that if he looked he saw, and if he listened he heard, so that his going upon the track at this time, whatever he may have done or may have omitted to do in looking out for his own safety, was negligence and the plaintiff cannot recover. McGee v Railroad, 214 Mo. 535; Stotler v. Railroad, 204 Mo. 619; Holland v. Railroad, 210 Mo. 338; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Boyd v. Railroad, 105 Mo. 391; Walker v. Railroad, 193 Mo. 453; Hutchison v. Railroad, 195 Mo. 546; Mockowick v. Railroad, 196 Mo. 550; Spillane v. Railroad, 135 Mo. 424. The evidence showed that the train was in plain view of plaintiff's husband before he went upon the track, and therefore the rate of speed was immaterial. Stotler v. Railroad, 204 Mo. 619; Schmidt v. Railroad, 191 Mo. 215; Green v. Railroad, 192 Mo. 131. There was no evidence to take the case to the jury upon the humanitarian doctrine. Nivert v. Railroad, 232 Mo. 626; Sites v. Knott, 197 Mo. 712; Krehmeyer v. Railroad, 220 Mo. 639; Guyer v. Railroad, 174 Mo. 344; Van Bach v. Railroad, 171 Mo. 338; Davies v. Railroad, 159 Mo. 1. The rate of speed of the train could not be considered as having any bearing upon the case as it could not be considered as negligence. McGee v. Railroad, 214 Mo. 535; Salter v. Railroad, 88 N.Y. 42; Railroad v. Lee, 68 Ill. 556; Railroad v. Walker, 113 Ind. 196; Railroad v. Cromer, 106 Ga. 296; Railroad v. Clark, 73 Ind. 168; Parkerson v. Railroad, 80 S.W. 468; Powell v. Railroad, 76 Mo. 80; Maher v. Railroad, 64 Mo. 275; Boyd v. Railroad, 105 Mo. 371; Goodwin v. Railroad, 75 Mo. 73; Lord v. Railroad, 82 Mo. 139; Kreis v. Railroad, 148 Mo. 321. There was nothing in the case calling for a reduced speed less than the train was running. Only ten families reside in this vicinity. They were some distance from the railroad track and all on the north side of it. They did not cross this crossing while journeying to or from Huntsville nor in the course of their affairs. There was no evidence of any extraordinary use of this crossing, calling for greater care than is usual. Therefore no rate of speed could be considered negligence. Cases, supra; Tobias v. Railroad, 103 Mich. 330. The evidence on the part of the defendant, with the exception of that bearing upon the rate of speed of the train and that upon the question of the crossing signals -- both, in this case, immaterial matters, was simply corroborative of that of the plaintiff. Furthermore the defendant's witness Mrs. Emma Patrick, who watched the deceased all of the time until he was struck, swore that he neither stopped, looked nor listened. There being no evidence whatever to contradict this witness and all of the other evidence in the case pointing to this state of fact, there is nothing whatever in the case to take it to the jury. Stotler v. Railroad, 204 Mo. 619; Green v. Railroad, 191 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Boyd v. Railroad, 105 Mo. 371; Walker v. Railroad, 193 Mo. 453. (2) It was error to allow the witness Taggert to testify as an expert and give his opinion as to the distance in which a train running at the rate of sixty miles an hour could be stopped. The witness did not qualify as an expert and furthermore the question calling for his opinion was not a proper question. It not only did not take into consideration the weight and the equipment of the train and the condition and grade of the track, and moreover did not attempt to specify the same conditions as were present at the time of the killing of plaintiff's husband. Gourley v. Railroad, 35 Mo.App. 92; Livery Co. v. McKelvey, 55 Mo.App. 245; Mammerberg v. Railroad, 62 Mo.App. 563; Senn v. Railroad, 108 Mo. 150; Heinzle v. Railroad, 182 Mo. 554; Ruschenberg v. Railroad, 161 Mo. 81; Culbertson v. Railroad, 140 Mo. 59.

E. J. Howard for respondent.

(1) The petition states a cause of action, with or without considering the statement to the jury by counsel for respondent. The statement merely outlines the facts expected to be proven in support of plaintiff's case as stated in the petition. Plaintiff may plead several distinct acts of negligence in one count of the petition, and if one negligent act be proven plaintiff is entitled to recover. Watcher v. Transit Co., 108 Mo.App. 645; Holden v Railroad, 108 Mo.App. 665; Haley v. Railroad, 197 Mo. 15. The question of which of two or more acts of negligence was the proximate cause of the accident does not arise when the first act concurred with the other in producing the result. Newcomb v. Railroad, 182 Mo. 721. While no particular rate of speed is negligence per se, in absence of a statute or ordinance, yet the circumstances and surroundings may be such as to render a rate of speed negligence, even in the country and over a country crossing. The law of negligence relating to country crossings is the same as in the city; the law has no greater regard for the traveler in the city than for one in the country. Baker v. Railroad, 147 Mo. 140. While in the absence of municipal regulation no rate of speed is negligence per se still it does not follow, that the defendant may at all times and places run its train at any rate of speed. This was a proper element to be taken into consideration in determining whether the defendant was guilty of negligence at the crossing. There must be a reasonable and fair regard for persons and property in running through villages and over frequently used public crossings, and the rate of speed must be made to conform reasonably with the surroundings. Stepp v. Railroad, 85 Mo. 234. While no rate of speed is per se negligence, in absence of statute, yet it may be considered with other circumstances on the question of negligence. Campbell v. Railroad, 59 Mo.App. 151. The jury may take into consideration on the question of negligence, evidence that the train was running at an unusual rate of speed in a thickly populated place and that no warning of its approach was given. Duffy v. Railroad, 19 Mo.App. 380; Stephens v. Railroad, 86 Mo. 226; Stepp v. Railroad, 85 Mo. 234. It cannot be held as a matter of law that a passenger train because in a country district can run at any speed. Dean v. Railroad, 199 Mo. 386; Haley v. Railroad, 197 Mo. 15; Beier v. Transit Co., 197 Mo. 215. There is no evidence in this case to show that plaintiff's husband failed to properly judge or attempted to judge the rate of speed at which the train was running at the time he met his death; and even if there was any evidence tending to show such attempt to judge the rate or failure to judge the rate properly, in this case, it would not necessarily convict deceased of contributory negligence as contended by appellant. Linden v. Transit Co., 103 Mo.App. 574; Hanheid v. Transit Co., 104 Mo.App. 323; Shafstaff v. Railroad, 175 Mo. 142; Moritz v. Transit Co., 112 Mo.App. 657; Sullivan v. Railroad, 117 Mo. 214; Hall v. Railroad, 124 Mo.App. 661. (2) The demurrer at the close of plaintiff's case was properly overruled; there was absolutely nothing in the evidence adduced by plaintiff, to show in the slightest degree, that plaintiff's husband was guilty of any contributory negligence whatever, but on the contrary the evidence and the physical facts show that he was in the exercise of due care when he drove upon the defendant's track. The burden was on defendant to prove that he was guilty of such contributory negligence as to preclude recovery. The demurrer at the close of all the evidence, was also properly overruled. When defendant does not stand on its demurrer at close of plaintiff's case but produced its evidence, it must be held to have waived its first demurrer. Fry v. Railroad, 200 Mo. 381; Forbes v. Dunnivan, 198 Mo. 193; Jordan v. Transit Co., 202 Mo. 338. (3) The only question before this court now, is whether or not there was anything in the case to take it to the jury. This court will not sit as a jury, on this or any other case. If there is any issue in the case, for the jury, and no substantial error was committed in the trial against appellant, the court will not disturb the verdict. Under the evidence, the negligence of the defendant is thoroughly established, in not giving the statutory signals, by running at a high and dangerous speed, which under the circumstances of this case, was negligence and under the humanitarian doctrine. The only remaining question is, was there such...