Adams v. Thompson

• Decision Date: 10 January 1944
• Docket Number: No. 20329.,20329.
• Citation: Adams v. Thompson, 178 S.W.2d 779 (Mo. App. 1944)
• Parties: ADAMS v. THOMPSON.
• Court: Missouri Court of Appeals

178 S.W.2d 779

ADAMS v.THOMPSON.

No. 20329.

Kansas City Court of Appeals. Missouri.

January 10, 1944.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

"Not to be published in State Reports".

Action by Noah Adams against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, for damages for the wrongful death of plaintiff's wife and damages to his automobile.From a judgment for plaintiff, defendant appeals.

Affirmed.

Thomas J. Cole, of St. Louis, L. J. Bishop, of Butler, and D. C. Chastain and Patterson, Chastain & Smith, all of Kansas City, for appellant.

Crouch & Crouch, of Harrisonville, and Cowgill & Popham and Sam Mandell, all of Kansas City, for respondent.

CAVE, Judge.

This is an action for damages for wrongful death of plaintiff's wife and damage to his automobile.There was a verdict for $5500 for the death of the wife and $500 for damages to the automobile, and judgment for plaintiff in the total sum of $6000.

The petition seeks to recover damages for the wrongful death of the plaintiff's wife and damage to his automobile following a collision between his automobile, driven by his wife, and defendant's northbound train at Twenty-third Street Trafficway in Independence, Missouri, on October 28, 1938.The petition alleged negligence in failing to protect crossing by gates or watchman, operation of a train at a high and negligent rate of speed, failure to sound alarm, maintaining a system of flashers which did not work, and failure to warn under the humanitarian doctrine; also, violation of a six mile per hour speed ordinance of Independence.The answer was a general denial and a plea of contributory negligence of deceased.

Plaintiff submitted the case to the jury under instruction No. 1, which allowed a recovery for the death of his wife for negligence under the humanitarian doctrine in failing to warn of the approach of the train; and under instruction No. 2, which allowed recovery for damages to his automobile, on primary negligence, if the flasher lights were not working, and no warning of the approach of the train was given by bell or whistle, and for operating the train at an excessive speed.

Deceased's mother was riding in the automobile with her and was killed, and recovery for her death in the sum of $5000 in favor of her administrator was sustained by this court in Benton, Administrator, v. Thompson, Mo.App., 156 S.W.2d 739, and the Supreme Court declined to quash that opinion on certiorari.State ex rel. Thompson v. Shain et al., 349 Mo. 1075, 163 S.W. 2d 967.We held in that suit that a submissible case was made for recovery for the death of the mother, who was a guest in the car, for primary negligence in failing to warn and in the operation of the train at a dangerous and excessive speed.

Among other errors, the appellant charges that the evidence in the instant suit fails to make a submissible case under the humanitarian doctrine.We deem it unnecessary to recite in detail all the physical surroundings since we did that in our opinion found in 156 S.W.2d 739, but will recite those considered pertinent to the issues raised on this appeal.

At the point in question, appellant's railroad tracks run north and south and cross, at right angles, Twenty-third Street Trafficway at grade in the City of Independence.It is a much travelled crossing.There are three sets of tracks at the crossing; the street is 60 feet wide and is paved with concrete 18 feet in width.Deceased was driving the automobile eastwardly on the trafficway and the train was travelling northward.As she approached the tracks the view of the train was obstructed by a cut, a tree and a shed.The latter was located on the railroad right of way and was about 8 feet high, and about 100 feet south of the street and west of the tracks.There was a flasher light standard on either side of the tracks at the crossing and they were operated electrically.When a train approaching the crossing is about 1000 to 1500 feet therefrom, it strikes a contact starting the flashers in operation and they operate until the train has passed over the intersection.The flashers work in unison; that is, both sides operate at the same time.

Plaintiff's evidence tends to show that the flashers were not working before and at the time of the collision; that the bell was not ringing and that the whistle was not sounded until the instant of the collision.Defendant's evidence is to the contrary.

As the train approached the intersection it was travelling at a speed of from 45 to 50 miles per hour.One of plaintiff's witnesses testified that she saw the deceased driving towards the tracks and that when the car was about 70 feet or so from the tracks, "it could not have been going over 10 or 12 miles per hour at the most"; another witness estimated its speed at 10 or 15 miles per hour.The fireman, called by the plaintiff as a witness, saw the car approaching the crossing and estimated its speed at about 20 to 25 miles per hour.It was also in evidence that this car, in the condition it was on that day, travelling at a speed of 10 to 15 miles per hour, could have been stopped in 3 to 5 feet;at 15 to 25 miles per hour, in 8 feet; and at 20 miles per hour, from 5 to 7 feet.

The evidence discloses that as the deceased approached the tracks and when she was 200 feet therefrom, a train could be seen only 110 feet to the south, due to obstructions, and when 150 feet from the center of the track, the train could be seen 145 feet to the south; when 100 feet from the track, the train could be seen 180 feet from the crossing, and when 50 feet from the track, the train could be seen 350 feet from the crossing, and at 25 feet the train could be seen 800 feet from the crossing.

The engineer was not in position to see the approach of the car, but the fireman was in position to see, and did see, the car approaching the tracks when it was from 100 to 200 feet west, and testified "when the car got within about 50 feet of the track, I realized it wasn't going to stop for the crossing", and at that time the pilot of the engine was about 100 feet from the crossing.When he realized the car was not going to stop, he"called to the engineer that there was a car approaching", and the engineer applied the brakes in emergency.The fireman also testified that as the train approached the crossing, the bell was ringing, the whistle blowing and the flasher lights were working.He further testified that as the deceased and her mother approached the tracks and were about 50 feet away therefrom, he observed that they were engrossed in conversation and neither of them looked towards the track and neither paid any attention, and he then realized that they didn't see the train and then it was he warned the engineer.The engineer testified that as the train approached the crossing, the fireman called to him that "there was a car approaching and that it acted like it wasn't going to stop.Q.What did you do?A.Well, I set the brakes in emergency and opened the sander * * *;" and brought the train to a stop in about nine car lengths.He also said that he was sounding the whistle and the automatic bell was ringing as he approached the crossing.Other necessary facts will be mentioned in the opinion.

It is now axiomatic in this state that in ruling on a defendant's demurrer to the evidence, such demurrer admits as true every fact and circumstance which plaintiff's evidence tends to prove; that plaintiff is entitled to the benefit of every inference of fact which may reasonably be drawn therefrom; that the evidence must be considered in the light most favorable to the plaintiff; that the defendant's evidence must be disregarded except insofar as it may tend to aid plaintiff's case; and that such a demurrer can be sustained only when the facts in evidence and the legitimate inferences to be drawn from such facts are so strongly against plaintiff as to leave no room for reasonable minds to differ.Hopkins v. Kurn et al., Mo.Sup., 171 S.W.2d 625.

Defendant argues that, excluding obliviousness, the deceased was not in a position of peril when the automobile was 50 feet from the crossing, because the undisputed evidence is that it could have been stopped in from 5 to 8 feet and that the only evidence in the whole record that deceased was oblivious of her danger arises from the testimony of the fireman who said that when her car was about 50 feet from the tracks, he realized she was not going to stop, gave his warning to the engineer, and at that time the pilot of the engine was about 100 feet from the crossing and travelling at 45 to 50 miles per hour; and that since the engine struck the car about the front part of the running board, it had, therefore, travelled from the point where the fireman realized obliviousness to the crossing in 1½ seconds, and that 1½ seconds was not sufficient time to give effective warning to the deceased of the approach of the train.Such calculations are based on the premise that plaintiff's evidence was to the sole effect that the car was being driven at a speed of from 20 to 25 miles per hour; however, there were other witnesses who placed its speed at 10 to 12 to 15 miles per hour as it approached the crossing, and as against the demurrer, such evidence and the inferences therefrom, must be considered in the most favorable light to plaintiff.

Defendant argues that the two witnesses who testified to such speed were not in an advantageous position to judge the speed of the car, or were not in as good position as was the fireman and "his testimony as to speed should prevail".However, we are not willing to say that such evidence has no probative force.In fact, we considered such evidence favorably when the companion case, above referred to, was decided.If the car was 50 feet from the track when obliviousness was first discovered, and it was travelling at 15 miles per hour, there would have transpired 2 3/11 seconds...