Allen v. Chicago, B. & Q. Ry. Co.
| Citation | 281 S.W. 737 |
| Decision Date | 26 February 1926 |
| Docket Number | No. 25196.,25196. |
| Court | United States State Supreme Court of Missouri |
| Parties | ALLEN et al. v. CHICAGO, B. & Q. RY. CO. et al. |
Appeal from Circuit Court, Caldwell County; Arch B. Davis, Judge.
Action by Vivian Allen and others by next friend, George Harlow, against the Chicago, Burlington & Quincy Railroad Company and another. Judgment for plaintiffs and defendants appeal. Affirmed.
H. J. Nelson, of St. Joseph, J. C. Carr, of Kansas City, L. W. Reed, of Breckenridge, O. J. Adams, of Kingston, and J. G. Trimble, of St. Joseph, for appellants.
Pross T. Cross, of Lathrop, Davis & Ashby, of Chillicothe, and Gerald Cross, of Lathrop, for respondents.
Statement.
This action was commenced in the circuit court of Caldwell county Mo., by George Harlow, who was duly appointed and qualified as the next friend of the minors hereafter mentioned, whose names and ages are as follows: Vivian Allen, of the age of twelve years; Ruth Allen, of the age of ten years; Helen Allen, of the age of nine years; Velma F. Allen, of the age of five years; and Elizabeth Allen, less than one year of age, for the purpose of prosecuting this action for a penalty of $10,000 under the provisions of section 4217, R. S. 1919, by reason of defendants' alleged wrongful acts in killing their mother, Mabel Allen, on August 20, 1922, at a public crossing of the track of the Chicago Burlington & Quincy Railroad, at the unincorporated village of Nettleton, in Caldwell county aforesaid.
The father of the above children, Harry Allen, did not exercise his right to sue with., in six months from the date of his wife's death, and hence the action was brought by said next friend for the benefit of said minors.
The defendant Thomas P. Bird was the engineer in charge of the engine and tender at the time Mrs. Allen was killed, and is made a party to this action.
The petition, after charging defendants' knowledge of the conditions which existed at the scene of the accident, alleges that on August 20, 1922, said Mabel Allen was riding in an automobile, owned and controlled by another, over and along said public road and at said crossing; that she was traveling south over said crossing when defendant Bird, as engineer of defendant, negligently operated a locomotive passing east over said crossing at a dangerous and unsafe rate of speed without ringing the bell thereon as required by law, and negligently failed to sound the whistle of said locomotive at intervals as required by law, and failed to give said Mabel Allen any notice or warning whatever of the approach of said engine at said crossing; and that they negligently ran and operated said engine at the time and place aforesaid in a noiseless manner, going down grade with simply the tender attached.
It is alleged that the view of travelers from the north approaching said crossing was partially obstructed, and which was well known to defendants; that by reason of the foregoing, and the failure to give said signals or any warning, while approaching said crossing at the dangerous and unsafe rate of speed aforesaid, the locomotive, without the fault of said Mabel Allen, collided with the automobile in which she was riding with great violence, causing her death; that at said time she held in her arms her four months old child, and by reason of the negligent acts aforesaid was placed in a position of great and unexpected peril.
It is further alleged that, while said Mabel Allen was in peril as aforesaid, the defendants, while operating said locomotive, saw, or in the exercise of ordinary care could have seen, her in such peril, and oblivious of the approach of said locomotive, in time to have stopped said engine, or slacken the speed thereof, or ring the bell, or sound the whistle, or otherwise warn her and the others in said automobile of the approach of said engine; that defendants negligently failed to ring said bell or sound the whistle, or to give any other warning of the approach of said engine over said crossing, while the same was approaching at a high and dangerous rate of speed. That by reason of the foregoing acts of defendants' negligence, said Mabel Allen was killed as aforesaid, etc.
The defendant company admitted its incorporation, and denied every other allegation in the petition. It specifically denied that the death of said Mabel Allen was due to the negligence of either of the defendants herein, but avers that her death was caused solely by the negligence and carelessness of said Mabel Allen, Harry Allen, and the plaintiff, Vivian Allen, in failing to exercise that degree of care and caution which it was their duty to exercise under the law in using their senses of sight and hearing, whereby they could have learned of the approach of said engine, while the automobile was at a place of safety, and at a sufficient distance from the track; that said automobile by care and caution could have been stopped at a place of safety before coming in collision with said engine on the crossing aforesaid; that those in the automobile were guilty of negligence in failing to give the driver of same timely notice of the approach of said engine, after they saw or knew it was coming, and while they were in a position to stop in safety before coming in collision with said engine on the crossing, etc.
The separate answer of defendant Bird pleads a general denial, and contributory negligence upon the part of the driver of the automobile and deceased.
We gather from the abstract of record, exhibits and briefs of counsel that there is but little, if any, substantial controversy over the following general facts: It appears from the evidence that there are five tracks at the station of Nettleton. These tracks, as described by the witnesses, run substantially east and west through the village of Nettleton. The track on the extreme south serves the stock pens, and is called the stock track. Immediately north of the above is a long side track, called the south passing track. North of the south passing track is the main track. North of the latter is a long side track, called the north passing track. North of the latter there is a short track called the "water" or "sump" track. The stock track connects only with the south passing track. The latter connects with the main track east of the crossing where the accident occurred, and again some distance west of the depot. The north passing track connects with the main track east of the crossing where the accident occurred and again west of the depot. The frog of the north passing track is 19 feet west of the center of the crossing where the accident occurred. The water track connects with the north passing track only. The east switch for the water track was 128 feet west of the center of the crossing. For some distance west of the depot to a point a little east of where the accident occurred, the road is on a descending grade of nine-tenths of a foot in 1,000 feet. The grade grows a little steeper east of the crossing. West of the depot the track is straight, but 100 feet east of the center of the depot the track begins in a one degree curve to the right. Between the main track and the north passing track are a number of buildings, and two small buildings west of the depot. East of the depot are a toolhouse, 14 feet east and west by 12 feet north and south; a water tank, 23 feet in diameter, set on posts; a pumphouse 17 feet east and west by 10 feet north and south. The pumphouse and coal bin are east of the water tank. They are low buildings, and a fireman can see over the top of same when on his seat in the engine cab. The coal bin is about 400 feet west of the crossing where the accident occurred. There were no buildings between the coal bin and crossing. North of the north passing track the water track was located. The ground north of the railroad sloped to the south to a low place about north of the water tank. The railroad company dug in this low place what is called a "sump," 200 feet long east and west by 11 feet wide. In times of drought this was filled with water, which was Pumped into the water tank. The "sump" was surrounded by a low fence. The east switch of the water track was 128 feet, the frog 200 feet, and the point where a car on the water track would clear a car on the passing track 285 feet west of the center of the crossing. The point of clearance for a car on the north passing track and a car on the main track was 114 feet west of the crossing. There were three crossings of public highways in the vicinity of Nettleton. Going east, the first crossing was west of the depot, 1,492 feet from the place of accident. The second crossing was just east of the depot. The distance from where the accident occurred, west to the second crossing near the depot, was 712 feet. The east end of the depot building was 15 feet from the west line of said second crossing. The third crossing was where the accident occurred. The house of George Harlow, where the occupants of the automobile had been visiting, was on the north and west side of the highway where the accident occurred. The house fronted east, and was about 225 feet from the railroad. The accident occurred about 6 o'clock p. m. South of the railroad the Ocean to Ocean Highway ran east and west, 550 feet south of said crossing, and it, as well as the road where the accident occurred, was extensively used by the public.
Keeping in mind these general facts, with the view of considering defendants' demurrer to the evidence at the conclusion of the case, we will set out in a general way the main facts relied on by respondent in order to determine whether plaintiff offered substantial evidence at the trial tending to support the verdict of the jury.
It is undisputed that on August 20, 1922, defendant Thomas Bird was a locomotive engineer in the service of the Chicago, Burlington & Quincy Railroad Company, and that, as such, he was in charge of, and...
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