Allen v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 26 February 1926
• Citation: 281 S.W. 737,313 Mo. 42
• Parties: VIVIAN ALLEN et al., by Next Friend, GEORGE HARLOW, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY et al., Appellants
• Court: Missouri Supreme Court

281 S.W. 737

313 Mo. 42

VIVIAN ALLEN et al., by Next Friend, GEORGE HARLOW, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY et al., Appellants

Supreme Court of Missouri

February 26, 1926

Motion for Rehearing Denied March 20, 1926.

Appeal from Caldwell Circuit Court; Hon. Arch B. Davis Judge.

Affirmed.

H J. Nelson, J. C. Carr, L. W. Reed, O. J. Adams and J. G. Trimble for appellants.

(1) The peremptory instructions in the nature of demurrers to all the evidence should have been given. (a) The driver of the auto was negligent as a matter of law. Monroe v Railroad, 297 Mo. 646; Evans v. Railroad, 289 Mo. 493; Tannehill v. Railroad, 279 Mo. 158; Burge v. Railroad, 244 Mo. 76; Lyter v. Hines, 224 S.W. 841; Kelsay v. Railroad, 129 Mo. 372; Hayden v. Railroad, 124 Mo. 573. The driver "gambled with death." Bradley v. Railroad, 288 F. 484. The statement of the driver that when he slowed up and stopped thirty to forty feet from the track, he looked in the direction of the approaching engine and saw nothing, must be disregarded and treated as absolutely untrue. The uncontradicted evidence shows he could have seen, and did see if he so looked. When a witness contradicts physical facts, the court will reject his testimony. (b) The driver's negligence was the proximate cause of the accident. The auto lunged forward in an effort to beat the train as shown by the uncontradicted testimony of the fireman and Harlow, and the act of the eight-year-old child on the back seat in jumping out. (c) The driver's negligence is imputable to the deceased, because they were on a common enterprise. The driver was her agent to convey her to and from her foster father's house. Tannehill v. Railroad, 279 Mo. 158; Rose v. Wells, 266 S.W. 1016; Railway v. LeBarr, 265 F. 129; Delaware v. Boyden, 269 F. 881; Davis v. Ry., 159 F. 18. (d) The deceased was guilty of negligence barring a recovery. What the child saw and Harlow saw she could have seen if she had been performing her duty to look. Monroe v. Railroad, 297 Mo. 652; Noble v. Ry., 298 F. 381; Leapard v. Rys., 214 S.W. 268; Fechley v. Ry., 119 Mo.App. 365. Deceased had a better opportunity than either the child or the driver to see the engine. Noble v. Ry., 298 F. 381. It was the duty of the deceased to look. Her husband testified she did look when he stopped thirty to forty feet from the track. It must be conclusively presumed she saw the engine at that time. Without protest, until too late to hope protest would be effective, she permitted her husband to go forward in an attempt to beat the train. That negligence precludes a recovery. So. Ry. v. Priester, 289 F. 945; Brown v. McAdoo, 188 N.W. 7; Brommer v. Railroad, 179 F. 577; Hall v. West Jersey, etc., 244 F. 104; Erie v. Hurlburt, 221 F. 907. (2) The court committed many fatal errors in giving and refusing instructions. (a) That the law cast upon deceased some duty to take precautions for her own safety as the auto approached the railroad track, is admitted by plaintiffs by the inclusion in their given instructions Numbered 1, 2 and 3 of the clause "and that at and just prior to the time of said collision, the said Mabel Allen was in the exercise of ordinary care;" but said three instructions are in error in merely charging her with the duty to exercise ordinary care. Wands v. Railroad, 106 Mo.App. 96; Underwood v. Railroad, 182 Mo.App. 262; Lyter v. Hines, 205 Mo.App. 438. At the time of this accident, the statute required the driver of a motor vehicle to "exercise the highest degree of care" in driving on a public highway. Laws 1921 (Ex. Sess.) p. 91, sec. 19. The statutory duty of the driver of the auto in this case was exactly the same as it was under the first motor vehicle statute, Laws 1911. Monroe v. Railroad, 297 Mo. 653. (b) Instruction 3, asked by and given for plaintiffs, was erroneous in that it permitted the jury to find that both the bell and the whistle on the locomotive should have been sounded for the crossing, contrary to the statute which only casts upon the defendant the duty to sound either the bell or the whistle, but not requiring both. The court had no power to change the law as declared by statute, and no power to authorize the jury to do so. Defendant attempted to cure this error by asking its Instruction G, which was refused by the court. Sec. 9943, R. S. 1919; Terry v. Ry. Co., 89 Mo. 587; Kenney v. Ry. Co., 105 Mo. 270, 287; Rollison v. Ry., 252 Mo. 525. The rule that a jury may be allowed to pass on question of whether both bell and whistle statutory signals should have been given, relates only to humane doctrine and instructions thereunder, whereas plaintiffs' Instruction 3, is not a humane doctrine instruction and plaintiffs' only humane doctrine instruction (No. 4) makes no reference to bell. Rollison v. Railroad, 252 Mo. 537; Koontz v. Wabash, 253 S.W. 413.

Pross T. Cross, Davis & Ashby and Gerald Cross for respondents.

(1) The demurrers were properly refused. The driver of the auto was not negligent as a matter of law. (2) The driver's negligence, if he was negligent, was not the proximate cause of the accident, but was a proximate cause; and the negligence of defendant in failing to ring the bell or sound the whistle, in approaching the crossing, was also "a proximate cause of the accident;" its negligence in failing to give a warning signal or to slacken speed after it saw or could have seen deceased's danger, was also a proximate cause of the death of deceased. And it is no defense to say that others were also guilty of negligence, but each person whose negligence contributed to cause the injury may be held to account to the injured person, and may be sued either jointly or severally. Rogers v. Rogers, 177 S.W. 382; Dunly v. Buffum, 173 Mo. 1; Funk v. Kansas City, 208 S.W. 840; Asher v. City of Ind., 177 Mo.App. 1; Reynolds v. Railway, 180 Mo.App. 138. (3) The negligence, if any, of the husband, cannot be imputed to the wife. And he was not her agent, and they were not engaged in a common enterprise. Corn v. Railway, 228 S.W. 78; Jepson v. Transit Co., 243 S.W. 370; Stotler v. Railroad, 204 Mo. 628; Rappaport v. Roberts, 203 S.W. 676; Rowe v. Railway, 247 S.W. 443; Wren v. Transit Co., 241 S.W. 464; Friedman v. Railway, 238 S.W. 1074; Zeigler v. Railway, 220 S.W. 1016; Boyd v. Kansas City, 237 S.W. 1001; Simpson v. Wells, 237 S.W. 520; Burton v. Pryor, 198 S.W. 1117; Newton v. Harvey, 202 S.W. 249; Lawler v. Montgomery, 217 S.W. 856; Moon v. Transit Co., 237 Mo. 435. (4) The degree of care which the law imposed upon and exacted of the deceased as a passenger in her husband's auto, was that of ordinary care. Corn v. Railway, 228 S.W. 78; Dincler v. Railway, 265 S.W. 113. (5) Even if there were no evidence to the effect that the deceased warned the driver of the approaching engine and of her attempt to escape, yet, the law would presume that she did these things, since, she being dead, the law will infer she exercised ordinary care. Hutchinson v. Safety Gate Co., 247 Mo. 71; Tibbles v. Railway, 219 S.W. 109; McKerall v. Railway, 257 S.W. 166; Collins v. Mill Co., 143 Mo.App. 333; Grant v. Railroad, 190 S.W. 586; Berry on Automobiles (4 Ed.) sec. 560. (6) The failure to either ring the bell continuously within eighty rods of the crossing, or to sound the whistle at intervals until it was passed, rendered defendants guilty of negligence per se; and the law presumes that such negligence was a proximate cause of the collision, and the burden is cast on defendant to overcome this presumption. Sec. 9943, R. S. 1919; Persinger v. Ry., 82 Mo. 196; Taylor v. Railway, 83 Mo. 386; Bogie v. Nolan, 96 Mo. 290; Crumpley v. Railroad, 98 Mo. 34; Kenney v. Ry. Co., 105 Mo. 270; Lamb v. Mo. Pac. Ry. Co., 147 Mo. 171; Rippee v. Railroad, 154 Mo. 358; Green v. Mo. Pac. Ry. Co., 192 Mo. 131; Stotler v. Railroad, 200 Mo. 107; McNulty v. Railway, 203 Mo. 475. (7) It is well-established law that statutory signals are the minimum that must be done, and not the maximum. And the statute does not absolve the defendant from the exercise of common-law "ordinary care." It was never intended to relax, but rather to strengthen, the vigils of the common law to prevent injury to others. Lloyd v. Railway, 128 Mo. 595; Rollison v. Railroad, 252 Mo. 525; Fife v. Railroad, 174 Mo.App. 661; Wilkerson v. Railway, 146 Mo.App. 711. (8) It is as much the duty of those operating an engine to warn the traveler, by timely and proper signals, when in the exercise of ordinary care they can do so, as it is their duty to stop or check speed. And although a train cannot be stopped or the speed checked in time, after the discovery of the traveler's peril, to avoid injury thereby, yet the defendant will be liable if the injury could have been prevented by use of a warning signal. Logan v. Railway, 254 S.W. 705; State ex rel. Wabash v. Trimble, 260 S.W. 1000; Ross v. Davies, 228 S.W. 508; Wolf v. Railway, 251 S.W. 441. The engineer's own testimony conclusively shows that he was guilty of the grossest negligence in failing to give a warning signal, after he well knew that there was danger lurking on the crossing.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

This action was commenced in the Circuit Court of Caldwell County, Missouri, 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, Revised Statutes 1919, by reason of defendants' alleged wrongful acts in killing...