Borrson v. Missouri-Kansas-Texas R. Co.

• Decision Date: 13 March 1942
• Docket Number: No. 37611.,37611.
• Citation: 161 S.W.2d 227
• Parties: BORRSON v. MISSOURI-KANSAS-TEXAS R. CO.
• Court: Missouri Supreme Court

161 S.W.2d 227

BORRSON v. MISSOURI-KANSAS-TEXAS R. CO.

No. 37611.

Supreme Court of Missouri, Division No. 2.

March 13, 1942.

As Modified on Denial of Rehearing May 5, 1942.

Appeal from St. Louis Circuit Court, Division No. 7; Robert L. Aronson, Judge.

Action by Alice Borrson, as guardian of Ida Mae White and others, minors, against the Missouri-Kansas-Texas Railroad Company for the death of Myrtle Ann White. Judgment for plaintiff, and defendant appeals.

Affirmed.

Everett Paul Griffin and Carl S. Hoffman, both of St. Louis, for appellant Missouri-Kansas-Texas R. Co.

B. Sherman Landau, of St. Louis, for respondent.

BARRETT, Commissioner.

Alice Borrson, guardian of Ida Mae White, Patsy Ann White and Robert Jean White, Jr., minors, was awarded a judgment of $10,000 against the Missouri-Kansas-Texas Railroad Company for the death of her wards' mother, Myrtle Ann White, from which the railroad appeals.

The respondent's petition is in two counts, the first charging the appellant with failure to sound a whistle or bell or other warning, and the second charging the maintenance of a hazardous, dangerous public crossing without adequate and proper warning devices or a watchman.

The accident causing Mrs. White's death occurred on December 20, 1939, at Caulk's Hill crossing in St. Charles County. Caulk's Hill Road is an all weather country road, intersecting the appellant's tracks at right angles a short distance from the foot of the hill. It is the road from the village of Harvester to Green's Bottom Road and eventually, from the north, to Bonhomme Island. Caulk's Hill drops sharply as the tracks are approached from the north. It is about 100 feet from the foot of the hill to the tracks. Seventy-five feet of the distance is slightly upgrade and about twenty-five feet from the center of the tracks north the road is practically level.

The road is in a gap or cut between two hills and as the tracks are approached from Caulk's Hill the view of the tracks to the right is obscured by a bluff or hill. The appellant's civil engineer stated that twelve feet from the center line of the rails one could see down the tracks 1,035 feet and twenty-five feet from the rails, 526 feet. The respondent's civil engineer stated that from the center line of the tracks the rails vanished from view at 1,153 feet; that twenty-three feet from the rails one could see up the track 274 feet, 10 inches and twenty-eight feet from the rails 211 feet 6½ inches. Another of appellant's witnesses stated that fifty feet from the tracks one could see up the tracks to the right 103 feet. The evidence was that a train going fifty miles an hour traveled 73 1/3 feet per second or 1,153 feet in sixteen seconds, or at forty miles per hour the same distance in twenty seconds.

Seventeen feet from the crossing on the north side was a cross-buck crossing sign plainly visible as one descended the hill.

On December 20, 1939, Robert Jean White, his wife, Myrtle Ann White, and their baby, Raymond Arthur, had been to St. Charles, where Mr. White consulted the local Federal Farm Administrator who advised him that someone on Bonhomme Island had some cattle for sale. This man directed him to Caulk's Hill Road and told him to turn to the right immediately after crossing the tracks. Mr. White was driving his one-half ton 1929 Model-A Ford truck. The truck and the engine of an extra freight train collided at the crossing. Mr. White was instantly killed; Mrs. White and the baby died later.

The train's fireman testified that the train was traveling at a speed of about forty miles an hour and about 1,300 feet from the crossing, at the regular whistling post, began whistling for the crossing. He saw the truck approaching the tracks at a speed of twelve or fifteen miles an hour, but did not pay much attention to it until the engine was within 130 to 150 feet of it when he yelled at the engineer, but because of the whistle he was not heard and so jumped down and yelled "Stop her!" He said the truck was forty or fifty feet from the crossing when he first saw it and that it continued on at the same speed until he last saw it. Some distance past the crossing the train stopped, picked up Mrs. White and the baby and took them to St. Charles.

The engineer testified that the left front of the footboard hit the truck, also the left forward side of the engine. The fireman testified that the right upper end of the truck was hit. He could not see anyone in the truck except the baby next to the window on his side.

At the close of all the evidence the respondent abandoned the second count of her petition and submitted her case on the first count and on the sole allegation of failure to sound the bell or whistle beginning at least eighty rods before approaching and continuing until passing over the crossing, Sec. 5213, R.S.Mo.1939, Mo.St.Ann. § 4756 p. 2133.

The appellant's first assignment of error is directed at the trial court's refusal to compel the respondent to elect on which count she would go to trial. Its theory is that the first count, failure to signal, is based on the punitive section of the death statute, Sec. 3652, R.S.Mo.1939, Mo. St.Ann. § 3262, p. 3353, while the second count, maintenance of a dangerous crossing, insufficiently safeguarded, is based on the compensatory sections of the death statute, Secs. 3653, 3654, R.S.Mo.1939, Mo. St.Ann. §§ 3263, 3264 pp. 3371, 3377, and that the two are inconsistent.

We fail to see that the two counts are inconsistent. One of them does not destroy the other. The only difference in the two is in the measure of damages. It is true that the two counts present two separate causes of action, but it does not necessarily follow that they are inconsistent and cannot be joined. There is only one wrong or injury for which the respondent seeks redress and that is the death of Mrs. White, for which there can be but one recovery, and in that sense there is but one cause of action. Jordan v. St. Louis Transit Co., 202 Mo. 418, 101 S.W. 11. It has always been the accepted practice to join two counts, one under each section of the death statutes, in a single petition. Brownell v. Pacific R. R. Co., 47 Mo. 239; Casey v. St. Louis Transit Co., 205 Mo. 721, 103 S.W. 1146. The procedure condemned has been the joining of a claim under each section of the statutes in a single count. King v. St. Louis & S. F. Ry. Co., 130 Mo.App. 368, 109 S.W. 859; McMurray v. St. L., I. M. & S. Ry. Co., 225 Mo. 272, 125 S.W. 751. But even then when the case was submitted on one assignment only the error was held to be harmless. Drolshagen v. Union Depot Ry. Co., 186 Mo. 258, 85 S.W. 344.

It is next urged that it was error to submit the case to the jury for the reasons that (1) the deceased was contributorily negligent as a matter of law and (2) there was not sufficient evidence to take the case to the jury on the issue of whether or not the statutory warning signals were given.

The appellant's argument as to the first of these is that when the Whites left St. Charles they were told to continue on Caulk's Hill Road until they crossed the railroad and then turn right so that she was forewarned of the crossing. Furthermore, there was a crossing sign plainly visible, especially so on a clear day. Also the tracks themselves were clearly visible at one o'clock in the afternoon. It contends that under these circumstances the truck, traveling twelve to fifteen miles per hour, could and should have been stopped before proceeding over the crossing and even that it should have stopped after the train was in sight and that Mrs. White should have warned her husband of the crossing and the signal, especially because of the bluff. In addition to its demurrers, the appellant submitted this theory of contributory negligence in an instruction which the court refused. It was also refused contributory negligence instructions based on the deceased's knowledge of defective brakes on the truck and failure to warn her husband against driving at an excessive rate of speed under the circumstances.

The fallacy in the appellant's argument is that there is no evidence in the record upon which Mrs. White could be convicted of contributory negligence. The fireman testified that he saw the baby sitting next to the window on the right side of the car, but he could not see the mother, So far as the record is concerned, it does not appear that any witness even knew she was in the truck until after the accident. It is not even claimed that there is any evidence as to what she was doing or what she knew or was saying. The appellant's contention has to be based solely on the fact that the bluff, the crossing and crossing sign were there and that, therefore, Mrs. White must have seen them and failed to do anything about it, which, of course, we cannot assume in the absence of any evidence on the subject.

Mrs. White was riding with her husband and there is no evidence that she was exercising any control over the movements of the truck, or that he was acting as her agent, or that they were on a joint enterprise or that his negligence, if any, was in fact hers. And, of course, the husband's negligence in driving a motor vehicle cannot be imputed to his wife, although she is riding with him, merely by reason of the marital relationship. 6 Huddy, Cyclopedia of Automobile Law, Sec. 154, pp. 297-299.

In the absence of any evidence as to what Mrs. White saw, knew or was doing, we must assume that she was exercising due care for her own safety. Thompson v. St. Louis-San Francisco Ry. Co., 334 Mo. 958, 69 S.W.2d 936; Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S. W.2d 961. This case is not comparable to instances of drivers or pedestrians proceeding over blind or known dangerous railroad crossings without looking or stopping, as was the case in State ex rel. Hines v. Bland et al., Mo.Sup., 237 S.W. 1018; Carner v. St. Louis-San Francisco Ry. Co., 338 Mo. 257, 89 S.W.2d 947; Rischeck v. Lowden et...