Barnes v. St. Louis-San Francisco Ry. Co.

• Decision Date: 10 March 1936
• Docket Number: 33092
• Parties: Olga S. Barnes, Goah S. Barnes, Jr., and Jane Barnes, Helen Barnes, Nina Barnes and James Barnes, Minors, by Olga S. Barnes as Their Natural Guardian, v. St. Louis-San Francisco Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

92 S.W.2d 164

338 Mo. 497

Olga S. Barnes, Goah S. Barnes, Jr., and Jane Barnes, Helen Barnes, Nina Barnes and James Barnes, Minors, by Olga S. Barnes as Their Natural Guardian, v. St. Louis-San Francisco Railway Company, a Corporation, Appellant

No. 33092

Supreme Court of Missouri

March 10, 1936

Appeal from New Madrid Circuit Court; Hon. John E. Duncan Judge.

Affirmed.

J W. Jamison and Ward & Reeves for appellant.

(1) Both the plaintiffs and the defendant in this case pleaded certain statutory laws of the State of Arkansas with reference to the operation of railroad trains, and with reference to travelers in motor vehicles coming to a stop before crossing railroad tracks on a grade with public highways. Under the Act of 1927 of the Missouri Legislature all pleaded statutes of Arkansas affecting this cause of action, as well as all of the decisions of the Supreme Court of that State construing such statutes, are brought into this action without formal proof of such law. Sec. 806, R. S 1929; Kirkdoffer v. Ry. Co., 327 Mo. 166. (2) The plaintiffs in this case pleaded certain statutory laws of the State of Arkansas, which in effect provided that when one is shown to have been killed or injured by the running of a train, then the plaintiff has made a prima facie case, and the presumption is that such injury or death was caused by the negligence of the railroad, but under the decisions of the Supreme Court of Arkansas and under the decisions of the Federal Courts construing such statutes, as well as under the decisions of our own Supreme Court, such prima facie case or presumption cannot be weighed in the balance as any evidence of negligence after contrary proof has been offered to show that the defendant railroad was not negligent, and as there was contrary evidence in this case, there can be no prima facie case or presumption to be weighed, and considered, in this case. St. L.-S. F. Ry. Co. v. Cole, 181 Ark. 780, 27 S.W.2d 992; Western Railroad Co. v. Henderson, 279 U.S. 639, 73 L.Ed. 884; Bradley v. Mo. Pac. Ry. Co., 288 F. 484; Allnut v. Mo. Pac. Co., 8 F.2d 606; Kirkdoffer v. Ry. Co., 327 Mo. 166, 37 S.W.2d 569; Oxford v. Ry. Co., 331 Mo. 53, 52 S.W.2d 983. (3) We therefore contend that the court erred in refusing to give the defendant's instruction in the nature of a demurrer to the evidence offered at the close of the case. St. L.-S. F. Ry. Co. v. McClinton, 9 S.W.2d 1061; Jemell v. St. L. S.W. Ry. Co., 11 S.W.2d 449; Bradley v. Mo. Pac. Ry. Co., 288 F. 484; Allnut v. Mo. Pac. Ry. Co., 8 F.2d 606; Kirkdoffer v. Ry. Co., 327 Mo. 166, 37 S.W.2d 569; Oxford v. Ry. Co., 331 Mo. 53, 52 S.W.2d 983; Gray v. Mo. Pac. Ry. Co., 23 F.2d 190.

James V. Conran and Cecil Shane for respondents.

(1) Appellant concedes that there is substantial evidence to sustain the verdict of the jury on the question as to what the real facts were. We say the great weight of the evidence, and of disinterested witnesses, sustains the findings of fact. If there is any substantial evidence to support the verdict the court will not set it aside. And in arriving at its other conclusions, in comparing negligence and in other respects, the court will view the evidence and facts in the light most favorable to the plaintiffs. Prescott & N.W. Railroad Co. v. Franks, 111 Ark. 83, 163 S.W. 180; C., R. I. & P. Ry. Co. v. French, 181 Ark. 777, 27 S.W.2d 1021; Mut. Life Ins. Co. v. Dowdle, 189 Ark. 296, 71 S.W.2d 691; Republic Mine & Mfg. Co. v. May, 184 Ark. 786, 43 S.W.2d 742; Hyatt v. Wroten, 184 Ark. 847, 43 S.W.2d 726; St. L.-S. F. Ry. Co. v. Fine, 184 Ark. 940, 44 S.W.2d 340. (2) Appellant offered certain evidence from which it at least insinuates that Barnes purposely drove upon the railroad crossing. We presume it has brought that into the abstract and into its statement of the case as a circumstance from which to help compare the negligence of the two parties. We will pass this briefly by saying that in case of a death of this kind it is presumed to be accidental rather than suicidal until the facts indicate the contrary. There is a presumption of due care arising out of the natural instinct of self-preservation. Great So. Fraternal Union v. Ewing, 178 Ark. 543, 11 S.W.2d 453; Fid. Mut. Life Ins. Co. v. Wilson, 175 Ark. 1094, 2 S.W.2d 80; Mut. Life Ins. Co. v. Raymond, 176 Ark. 879, 4 S.W.2d 536; 14 R. C. L., pp. 1236-7; Bradley v. Mo. Pac. Ry. Co., 288 F. 484. (3) We also concede that in a proper case, under the Arkansas Comparative Negligence Statute, the court has a right to declare as a matter of law that the party killed was guilty of negligence equal to or greater than the negligence of the employees of the railroad company. Barnes had the same right to presume that the employees of the railroad would give the proper signals that they had to presume that the driver of an automobile coming along there would see the train and stop.

OPINION

Hays, J.

After dark, about eight-thirty, in the evening of August 28, 1931, Goah S. Barnes came to his immediate death in a collision that occurred between an automobile which he was driving and a passenger train operated by defendant railway company on a public crossing at the north edge of Gillmore, a town of some 150 inhabitants in Crittendon County, Arkansas. His surviving widow and minor children brought this action in the Circuit Court of New Madrid County, Missouri, for damages by reason of his death. The plaintiffs recovered a judgment for $ 10,000 and the defendant appealed. As the case must turn on the evidence, a rather full statement of the facts and surroundings of the casualty seems appropriate.

The railroad runs approximately north and south and is straight from the crossing in question to Deckerville, a town some three miles north. The highway, No. 63, which traverses the crossing in question, is paved with concrete slab and runs parallel with and on the west side of the railroad for an indefinite distance beyond Deckerville. At a point 405 feet from said crossing the highway makes a rather sharp curve to the left for about 100 feet, then proceeds on a diminishing curve and throughout from the beginning of the curve on a gradual incline of eight to ten feet up to the level of the railroad track, which it strikes somewhat diagonally as appears from photographs in the record. There were no obstructions to a traveler's view of the train at any point within 300 feet of the crossing, although his view was to the left and rear.

Near the crossing there was a sign lettered "Stop, Arkansas Law," located on one edge of the highway, and on the other the usual crossarm sign, both of them noticeable in the light of an advancing automobile for a distance of 100 feet. The stop-law sign was erected by the State Highway Commission of Arkansas under statutory authority.

The train, not scheduled to stop at Gillmore, operated daily between Kansas City and Pensacola, on time schedule which, including stops, made the average running time forty to forty-five -- maximum fifty miles an hour. On the evening in question this southbound train on arriving at Deckerville "took the siding" and waited ten minutes for defendant's northbound Florida-Kansas City train to pass. When the latter had passed, the southbound re-entered upon the main track and proceeded -- then five minutes behind schedule -- to Gillmore, traveling at an accelerating speed, and attaining its maximum, estimated at forty-five to fifty miles an hour, at the crossing. The locomotive headlight illuminated the track some 800 feet ahead.

Two of plaintiffs' witnesses, Tice and Curtis, who were traveling south on said highway in an open Ford car, testified that the train passed them a quarter of a mile from the crossing. They did not see the collision as they were back one or two train lengths. Each testified that when they were half way between Deckerville and Gillmore and traveling at forty to forty-five miles an hour a sedan (Barnes') passed their car.

Plaintiffs' witness Green, driving a truck en route to Memphis, was considerably ahead of Tice and Curtis. He had noticed the waiting train as he passed through Deckerville, and just as he left there he saw the northbound train come in. When he reached the curve referred to above he reduced his speed to fifteen or twenty miles an hour, he said. When he reached a point on the curve 310 feet from the crossing the Barnes car passed him, running at about thirty miles an hour, and continued apparently without any change of speed until it was struck by the train on the crossing, the witness's truck then being fifty feet behind the Barnes car. He said that at the time the Barnes car passed him the witness looked out the open window of his truck and over his shoulder and saw the approaching train and the light thereof. His estimate of the speed his truck traveled at in going from Deckerville until it stopped was an average of forty to forty-five miles an hour -- "it was in that neighborhood."

The train engineer testified that he observed no traffic on the highway until he saw the Barnes car approaching toward the crossing, when the car was about eighty feet from the track and the locomotive ninety feet from the crossing. The engineer said he sounded emergency blasts of the whistle, and applied his emergency brakes when the automobile, approaching at fifteen miles an hour (his estimate), got up to about fifteen feet of the track, and he stopped the train as quickly as he could; and Barnes neither increased nor decreased his speed any from the time he first saw him. Every witness, except Green, within a distance of a few hundred feet of the crossing heard the noise made by the train as it approached. There was other substantial evidence tending to show the whistle blasts were not sounded -- a matter for...