Benton v. Thompson

• Decision Date: 03 November 1941
• Docket Number: No. 19955.,19955.
• Citation: 156 S.W.2d 739
• Parties: CARLTON R. BENTON, ADMINISTRATOR OF THE ESTATE OF EUDORA LILLY, RESPONDENT, v. GUY A. THOMPSON, TRUSTEE OF THE MISSOURI PACIFIC RAILROAD COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

156 S.W.2d 739

CARLTON R. BENTON, ADMINISTRATOR OF THE ESTATE OF EUDORA LILLY, RESPONDENT, v. GUY A. THOMPSON, TRUSTEE OF THE MISSOURI PACIFIC RAILROAD COMPANY, A CORPORATION, APPELLANT.

No. 19955.

Kansas City Court of Appeals, Missouri.

November 3, 1941.

Appeal from the Circuit Court of Cass County. — Hon. Leslie A. Bruce, Judge.

AFFIRMED.

Thos. J. Cole, L.J. Bishop and D.C. Chastain for appellant.

Patterson, Chastain & Smith of counsel.

(1) The court erred in overruling the defendant's demurrer to all the evidence. Chawkley v. Wab. Ry. Co., 317 Mo. 782, 297 S.W. 20; Cox v. St. L.-S.F. Ry. Co., 223 Mo. App. 14, 9 S.W. (2d) 96; Herring v. Franklin, 339 Mo. 571, 98 S.W. (2d) 619; Schaub v. K.C.S. Ry. Co., 133 Mo. App. 444, 113 S.W. 1163; Wren v. Chi., B. & Q.R. Co. (Mo. App.), 44 S.W. (2d) 241. (2) The court erred in refusing defendant's Instruction 8. Poague v. Kurn, 346 Mo. 153, 140 S.W. (2d) 13; Burton v. Pryor (Mo. App.), 198 S.W. 1117; Sullivan v. A., T. & S.F. Ry. Co., 317 Mo. 996, 297 S.W. 945; Chawkley v. Wabash Ry. Co., supra; Cox v. St. L.-S.F. Ry. Co., supra; McKelvey v. D., L. & W.R. Co., 300 N.Y.S. 1263; Parker v. St. L.-S.F. Ry. Co., 41 S.W. (2d) 386. (3) The court erred in giving Instruction B on the part of the plaintiff. Authorities under point (1). Said instruction submits a question of law to the jury in allowing them to determine the conditions and circumstances under which the crossing was dangerous. Long v. Mild, 149 S.W. (2d) 853; Yoakum v. A., T. & S.F. Ry. Co., 199 S.W. 263; Winslow v. M., K. & T. Ry. Co., 192 S.W. 121; Brock v. C., R.I. & P. Ry. Co., 305 Mo. 502, 266 S.W. 691; Mackline v. Fogel Construction Co., 326 Mo. 38, 31 S.W. (2d) 14. It erroneously allowed a recovery even though the bell was rung as required by statute and even though the flashers were working. Blackwell v. Union Pac. R. Co., 331 Mo. 34, 52 S.W. (2d) 814; Yoakum v. A., T. & S.F. Ry. Co., supra; Sublette v. Terminal R. Ass'n (Mo.), 267 S.W. 622; Wolfe v. Hines (Mo. App.), 224 S.W. 143. The instruction erroneously tells the jury as a matter of law that flasher lights were not a sufficient warning when read in connection with Instruction H. The instruction erroneously fails to define a dangerous crossing or the elements essential thereto, but leaves the same, which is a question of law, to the jury. The instruction is inconsistent and confusing. (4) The court erred in giving Instruction C, submitting negligence in operating the train at an excessive speed. Duncan v. C., B. & Q.R. Co. (Mo. App.), 149 S.W. (2d) 920; McGee v. Wab. Ry. Co., 214 Mo. 530. 114 S.W. 33; Southern Pac. Co. v. Stephens, 24 F. (2d) 182; Central R. Co. of N.J. v. Hudson, 209 Fed. 176; Edgerley v. L.I. Ry. Co., 61 N.Y.S. 677; Nelson v. Lake Shore & M.S. Ry. Co., 172 N.Y.S. 766; State for use Emerson v. Poe (Md.), 190 Atl. 231; Nice v. Ill. Cent. Ry. Co., 303 Ill. App. 292, 25 N.E. (2d) 104; Cin., N.O. & T.P. Ry. Co. v. Champ (Ky.), 104 S.W. 988; Engberg v. Great Northern Ry. Co. (Minn.), 290 N.W. 579. Negligence, if any, was in the failure of the flasher system to work and not in the speed of the train. Northern Pac. Ry. Co. v. Bacon, 91 F. (2d) 173. Neither was there proof of a dangerous crossing and the instruction erroneously submits a question of law as to what constitutes a dangerous crossing to the jury. (5) The court erred in giving Instruction D on behalf of the plaintiff. Johnston v. City of St. Louis (Mo. App.), 138 S.W. (2d) 666; Constructing and Reviewing Instructions, Trusty, 220. (6) The court erred in giving Instruction E. Chawkley v. Wab. Ry. Co., supra. (7) The court erred in giving Instruction G and in refusing Instruction 11 offered by the defendant. Secs. 3652, 3653 and 3654, R.S. Mo. 1939; Fowler v. M., K. & T. Ry. Co., 229 Mo. App. 561, 84 S.W. (2d) 194; Gulbertson v. Met. St. Ry. Co., 140 Mo. 35, 36 S.W. 834; Wallace v. Woods, 340 Mo. 452, 102 S.W. (2d) 91. Said instruction was further erroneous in failing to define what circumstances will mitigate or aggravate a wrong. Rains v. St. L., I.M. & S. Ry. Co., 71 Mo. 164. (8) The court erred in giving Instruction H in view of defendant's Instruction 18. Eisenbarth v. Powell Bros. Truck Lines (Mo. App.), 125 S.W. (2d) 899, certiorari quashed, 345 Mo. 915, 137 S.W. (2d) 461; Seithel v. St. Louis Dairy Co. (Mo.), 330 S.W. 280; Fowler v. M.K. & T. Ry. Co., supra; Henderson v. St. L.-S.F. Ry. Co. (Mo.), 284 S.W. 788. (9) Plaintiff was not entitled to recover because of failure to show his appointment as administrator of the Lilly Estate. Likewise, the failure of instructions B and C to require such a finding is error. Constructing and Reviewing Instructions, Trusty, 1; Carpenter v. Kurn, 345 Mo. 877, 136 S.W. (2d) 997.

Cowgill & Popham, Sam Mandell and Crouch & Crouch for respondent.

(1) A submissible case was made. Beal v. Chicago, B. & Q.R. Co., 285 S.W. (2d) 482; Fowler et ux. v. Missouri, K. & T.R. Co., 229 Mo. App. 561, 84 S.W. (2d) 194; Herrell v. St. Louis-San Francisco Railway Co., 332 Mo. 551, 18 S.W. (2d) 481; Homan v. Missouri Pacific Railroad Co., 334 Mo. 61, 64 S.W. (2d) 617; Mackowik v. K.C. St. J. & C.B.R. Co., 196 Mo. 550, 94 S.W. 256. (2) Plaintiff's Instruction B was properly given. Dyer v. Kansas City Southern Ry. Co., 223 Mo. App. 1001, 25 S.W. (2d) 508; Herrell v. St. Louis-San Francisco Ry. Co., 332 Mo. 551, 18 S.W. (2d) 481. (3) Plaintiff's Instruction C was properly given. (4) Plaintiff's Instruction D was properly given. (5) Plaintiff's Instruction E was properly given. Williams v. Excavating & Foundation Co., 239 Mo. App. 973, 93 S.W. (2d) 123. (6) Plaintiff's Instruction G was properly given. (7) Plaintiff's Instruction H was properly given. (8) It was unnecessary for plaintiff to prove his appointment as administrator. Katz v. North Kansas City Development Co., 14 S.W. (2d) 701, 709; Baxter v. St. Louis Transit Co., 198 Mo. 1, 95 S.W. 856. (9) The verdict is not excessive.

BLAND, J.

This is an action for damages for wrongful death. There was a verdict and judgment in favor of plaintiff in the sum of $5000, and defendant has appealed.

Deceased was killed while riding in an automobile being driven by her daughter, Mrs. Adams, when it was struck by a train being operated by the defendant. The collision occurred where defendant's railroad tracks cross 23rd Street Trafficway at grade in the City of Independence. The railroad tracks, at the point in question, run north and south. 23rd Street Trafficway runs east and west, is sixty feet in width and is paved with concrete eighteen feet in width. There are three tracks at the crossing. The automobile in which deceased was riding was traveling east on the Trafficway. As it approached the tracks the view of the train, which was approaching from the south down grade, was obstructed by a cut, a tree and a shed. The latter was located on the railroad right of way and was eight feet high. The shed was about 100 feet south of the trafficway and west of the track upon which the train was approaching. There was a flasher light standard on either side of the tracks at the crossing, the one on the east being eight feet east of the track and 6.8 feet north of the slab, and the one on the west being 8.4 feet west of the west rail and about 7.4 feet south of the slab. The flasher lights 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. Defendant's evidence is to the contrary.

The train involved in the collision, a northbound passenger train, was about a minute and a half late. The engineer had made a service application of the brakes so that he could have the train under control so as to stop, if necessary, at Independence Junction about 1500 feet north of the trafficway. There was evidence that the train had been proceeding at the rate of about 70 miles per hour but it was slowed down to a speed of 45 to 50 miles per hour at the time of the collision. There is no evidence of any ordinance regulating the speed of trains. The engineer did not see the automobile before it was struck; but the fireman testified that he was in his place on the left side of the engine cab; that the cab was 46 feet back of the pilot; that when he first saw the automobile it was 100 to 125 feet west on the highway; that the car was moving about 20 to 25 miles per hour, or about half as fast as the train; that when the car arrived at a point about 50 feet from the track he realized it was not going to stop for the crossing; that at this time the pilot of the locomotive was about 100 feet from the crossing; that he called to the engineer and the latter applied his emergency brakes. The evidence shows that the engineer stopped about 1000 feet north of the crossing. Mrs. Adams was killed and her body was thrown from the car and was laying to the left of the tracks. Deceased was dead and was pinned in the automobile which was on fire.

Deceased was seventy-three years of age. She was "unusually strong for her age." She left surviving her one son and four daughters, all of whom are adults. She was a widow and since her widowhood she had resided in Independence with her daughter, Mrs. Adams. The collision occurred about 3:00 P.M. of October 28, 1938. Mrs. Adams was driving the automobile and deceased was riding in the rear seat of the car. The windows were down. Deceased's eyesight and hearing were good. There was evidence that the car was proceeding at the rate of ten or fifteen miles per hour, and at this speed it could have been stopped within eight or ten feet. There was no evidence in what distance it could have been stopped going at the rate of twenty-five miles per hour, or...