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

• Decision Date: 07 June 1943
• Docket Number: 37799
• Parties: Alice Borrson, as Guardian of Ida Mae White, Patsy Ann White and Robert Jean White, Jr., minors, v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

172 S.W.2d 835

351 Mo. 229

Alice Borrson, as Guardian of Ida Mae White, Patsy Ann White and Robert Jean White, Jr., minors,
v.
Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

No. 37799

Supreme Court of Missouri

June 7, 1943

Motion to Modify Opinion Overruled in Per Curiam Filed July 6, 1943.

Appeal from Circuit Court of City of St. Louis; Hon. William S. Connor, Judge.

Reversed.

Everett Paul Griffin and Carl S. Hoffman for appellant.

(1) Deceased was guilty of contributory negligence as a matter of law. Scott v. Kurn, 343 Mo. 1210; Carner v. St. L.-S. F. Ry. Co., 338 Mo. 257; Herring v. Franklin, 339 Mo. 571; Burge v. Rd., 244 Mo. 76; Evans v. Ill. Cent. R. Co., 289 Mo. 493; Rowe v. St. L.-S. F. Ry. Co., 41 S.W.2d 631; Fitzpatrick v. K. C. S. Ry. Co., 146 S.W.2d 560. (2) There was not sufficient evidence to take the case to the jury on the issue of whether or not statutory warning signals were given. Ingram v. Mobile & Ohio R. Co., 326 Mo. 163; Saunders v. Prue, 151 S.W.2d 478.

B. Sherman Landau for respondent.

(1) Upon proof of the defendant's failure to sound the crossing signals required by statute, plaintiff made a prima facie case of defendant's negligence per se. Berry v. Kansas City Pub. Serv. Co., 341 Mo. 658, 108 S.W.2d 98. (2) Plaintiff's evidence did not tend to convict the deceased of contributory negligence as a matter of law, and her case was therefore properly submissible to the jury upon her prima facie showing. Toeneboehn v. St. Louis-S. F. R. Co., 317 Mo. 1096, 298 S.W. 795; Peterson v. Chicago & A. R. Co., 265 Mo. 462, 178 S.W. 182; Dobson v. St. Louis-S. F. R. Co., 10 S.W.2d 528. (3) The deceased, in approaching the crossing (if he recognized it as such) had a right to presume that a train would not violate the law in approaching the crossing. State ex rel. Quincy, O. & K. C. R. Co. v. Trimble, 254 S.W. 846. (4) It is presumed as a matter of law that the deceased exercised due care for his own safety. Wolf v. N. Y. C. & St. L. R. Co., 148 S.W.2d 1032; Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 509; and that the deceased did not commit suicide. State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97. (5) It must be presumed that the truck would not have been struck had the statutory signals been given. Gann v. Chicago, R. I. & P. Ry. Co., 319 Mo. 214, 6 S.W.2d 39. (6) The burden of proving contributory negligence rested upon the defendant railroad. Rucker v. Alton R. Co., 343 Mo. 929, 123 S.W.2d 24; Peterson v. Chicago & A. Ry. Co., 265 Mo. 462, 178 S.W. 182. The weight of defendant's evidence on the issue of contributory negligence was for the jury's determination even though uncontradicted. Peterson v. Chicago & A. Ry. Co., 265 Mo. 462, 178 S.W. 182; Strohfeld v. Cox, 325 Mo. 901, 30 S.W.2d 462; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. (7) The deceased was not required as a matter of law to leave the truck and walk onto the track to search for an approaching train. Pokora v. Wabash R. Co., 29 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A. L. R. 1049. (8) The testimony of four witnesses in plaintiff's behalf that their hearing was good, there was no obstruction to sound, that they were sufficiently close to have heard a warning signal if sounded, but that they heard none, was sufficient to take to the jury the issue of defendant's negligent failure to sound statutory warning signals. Evans v. Atchison, T. & S. F. Ry. Co., 131 S.W.2d 604; Dodd v. Terminal Railroad Assn., 108 S.W.2d 982; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185.

OPINION

Ellison, J. [172 S.W.2d 836]

[351 Mo. 231] This is one of three actions under the wrongful death statute, Sec. 3652, R. S. 1939, Mo. R. S. A., sec. 3652, growing out of a collision between appellant's eastbound freight train and a truck driven by Robert Jean White, with whom his wife, Myrtle Ann White, and their two year old son Raymond Arthur White were riding. It occurred on December 20, 1939 at a railroad grade crossing over Caulk's Hill road in St. Charles County. All three truck passengers were killed. In each action there was a judgment for the plaintiff for $ 10,000, from which the railroad company appealed. One of them was brought by the present respondent Alice Borrson as guardian of the surviving minor children of the couple, for the death of their mother. The judgment in that case was affirmed by Division 2 of this court last May, as reported in 161 S.W.2d 227. The same plaintiff brought the instant action, No. 37,799, for the death of the father. The third case, No. 37,798, 351 Mo. 214, 172 S.W.2d 826, was brought by the same Alice Borrson as administratrix of the estate of the infant decedent for his death. These two cases were consolidated for oral argument here, but were tried below separately and are submitted on separate records and briefs. The facts are closely parallel, but there is some difference in them as well as the assignments of error in the briefs, which necessitates the writing of separate opinions.

Respondent's petition contained several assignments of negligence including: failure to maintain watchmen, crossing gates or other [351 Mo. 232] protective devices at the crossing; and negligence under the humanitarian doctrine. But after the evidence was in she abandoned all other pleaded assignments and submitted her case solely on the issue whether appellant's locomotive engineer failed to give warning by bell or whistle for 80 rods until the train reached the crossing, as required by Sec. 5213, R. S. 1939, Mo. R. S. A., sec. 5213. This was, of course, primary negligence, to which contributory negligence of the deceased would be a defense under the express terms of the death statute, Sec. 3652, supra. The appellant's answer pleaded contributory negligence on [172 S.W.2d 837] the part of the deceased in failing to exercise the highest degree of care under Sec. 8383, R. S. 1939, Mo. R. S. A., sec. 8383, by stopping, looking and listening, or by swerving or stopping the truck, also defective brakes on the truck, excessive speed, and failure to heed the railroad crossing sign and to see the railroad track. The first and principal assignment made in appellant's brief here is that the trial court erred in submitting the case to the jury because: (1) the evidence shows the deceased truck driver was guilty of contributory negligence as a matter of law; (2) and there was no substantial evidence that the statutory warning signals were not sounded by the locomotive engineer.

Stating the facts in the light most favorable to the respondent, there was evidence from which the jury might have inferred that the deceased had never been over Caulk's Hill road before. His fifteen year old daughter testified he had not "to her knowledge;" and Mr. Gross, Supervisor for the Farm Security Administration in St. Charles County, testified from a conversation he had with the deceased about two hours before the collision that the latter did not know the location of his destination on the fatal trip. However, it also appears in respondent's evidence that the deceased had been living and farming for 5 1/2 years near New Melle, which the public records of the State Highway Department (of which we take judicial notice) indicate is in the same general part of St. Charles County. Respondent's evidence further shows deceased was an experienced truck driver. Before he began farming he had been a driver out of St. Louis for the Anderson Motor Company, engaged for two years in long distance truck hauling to eastern states and to different (but not all) points in St. Charles County. Prior to that he had been an automobile mechanic.

More important is the testimony of respondent's aforesaid witness Gross as to the purpose of deceased in making the trip. He came to Gross's office in St. Charles about 11 o'clock that morning inquiring where he could buy some live stock. Gross directed him to a farm on Bon Homme island (so-called) which was accessible to truck traffic on the north side of the Missouri River over the Caulk's Hill road and another. In so doing Gross instructed the deceased to take State Highway No. 94 from St. Charles and go southwest [351 Mo. 233] to the village of Harvester, and thence turn left or south following the Caulk's Hill road until he crossed the railroad tracks which were more or less "right at the edge of the upland and bottom land." Then he was to take another intersecting public road running east and west parallel with the south side of the railroad track, and leading to the farm he was seeking. Three times in his direct and cross-examination Gross repeated the statement that he told the deceased the railroad and the parallel east and west highway would be "at the edge" of the bottom land and upland; or where they "connected," or "came together."

The evidence on both sides further shows without dispute that the Caulk's Hill road runs south from Highway 94 and Harvester, and for about 660 feet with a fall of about 146 feet passes through the bluffs or hills on the north side of the Missouri River, to a wide area of flat land called Green's Bottom lying between the river and the foot of the bluffs, with the railroad track hugging the latter. As the road nears the track it is substantially level, but for the last 35 or 40 feet rises to meet the railroad grade. It is an all-weather road of stone or gravel and 16 feet wide. The railroad runs east and west, but on a convex southerly curve both east and west of the grade crossing, and still further west about 1200 feet it curves northerly. The track is on an embankment some 5 or 6 feet above the average level of Green's Bottom. The hill or bluff on the west side of Caulk's Hill road is 175 feet high and covered with trees and dead vegetation, which tend to deaden and deflect over into the river valley the sound of trains coming from the west. Also the hill is so close both to the railroad and the highway that motorists coming...