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

• Decision Date: 20 April 1933
• Docket Number: 30476
• Citation: 59 S.W.2d 661,332 Mo. 851
• Parties: William S. Caylor v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

59 S.W.2d 661

332 Mo. 851

William S. Caylor v. St. Louis-San Francisco Railway Company, Appellant

No. 30476

Supreme Court of Missouri

April 20, 1933

Motion For Rehearing Overruled March 16, 1933, Motion To Transfer To Banc Overruled April 20, 1933.

Appeal from Barton Circuit Court; Hon. Charles A Hendricks, Judge.

Reversed.

E T. Miller, Mann, Mann & Miller and H. W Timmonds for appellant.

(1) No actionable negligence was proven with respect to the condition of the crossing. While there was evidence that there were holes south of the plank outside the south rail of the main-line track, all the evidence showed that plaintiff's car was not stalled upon the crossing, and that its speed was not lessened or the movement of the car affected by these holes. Negligence, to be actionable, must be the proximate cause, that is, a cause without which the accident would not have occurred. Stokes v. Wagon Co., 289 S.W. 987; State ex rel. Boeving v. Cox, 310 Mo. 367, 276 S.W. 869. Where the breach of a statute is relied upon as a ground for recovery, it is not sufficient that a breach of the statute be proven, but the particular injury must be one falling within the scope of protection intended in the enactment of the statute. Cooper v. Railroad, 117 Kan. 703, 232 P. 1026; Whitcomb v. Railroad, 280 P. 901; Mansfield v. Wagner Mfg. Co., 294 Mo. 235, 242 S.W. 402; Rittenhouse v. Railroad, 299 Mo. 199, 252 S.W. 948; Degonia v. Railroad, 224 Mo. 592; Cornett v. Railroad, 184 Mo.App. 466; Anderson v. Wells, 273 S.W. 235; State ex rel. Anderson v. Daues et al., 287 S.W. 603; Rutledge v. Railroad, 110 Mo. 322. Defective condition of a crossing required by statute to be kept in good condition is not actionable to one struck by a train while attempting to cross the track, because it is not the proximate cause. Cooper v. Railroad, 117 Kan. 703, 232 P. 1024; Pugh v. City, 283 S.W. 91; B. & O. Railroad v. Reeves, 10 F.2d 331; Spain v. Railroad, 190 S.W. 360; Todd v. Railroad, 185 S.W. 63; Kemp v. Railroad, 94 N.W. 439. (a) The breach of duty complained of under the last-clear-chance doctrine was the failure of defendant to stop the train or slacken its speed. There was no actionable negligence in this respect. As plaintiff approached the crossing he had an unobstructed view of the train, which was then within his vision, of more than thirty-three feet. He was constantly reducing the speed of his automobile and could at any time after he could have seen the train have stopped his automobile in two or three feet. The engineer was continuously sounding a warning whistle from the time plaintiff's automobile went upon the south track, approximately thirty feet from the main-line track. Under such circumstances the engineer had the right to assume plaintiff saw the train and would stop. Vance v. Railroad, 133 Kan. 11, 289 P. 766; Williams v. Railroad, 122 Kan. 256, 252 P. 766; Mourning v. Railroad 110 Kan. 417, 204 P. 721; Beal v. Railroad, 256 S.W. 736; Sullivan v. Railroad, 308 Mo. 48, 271 S.W. 990; Sullivan v. Railroad, 317 Mo. 999, 297 S.W. 950. Plaintiff was not in the danger zone and no duty arose to reduce the speed of the train until plaintiff entered upon the main line track. Mourning v. Railroad, 110 Kan. 417, 204 P. 722. At the time it could have become apparent to the engineer that plaintiff was not going to stop but was going onto the track and would be in peril, the train was then so close that the collision could not have been averted by reduction in the speed of the train. Mourning v. Railroad, 110 Kan. 417, 204 P. 722; Williams v. Railroad, 122 Kan. 256, 252 P. 470. (b) Under the last clear chance doctrine as applied in Kansas no duty arises on the part of those in charge of the engine to take any precaution to avert the collision and no failure on their part to act is actionable if, and so long as, the traveler is guilty of contributory negligence. It is only where, and in the event, the contributory negligence of the traveler has ceased that any duty arises on the part of those upon the engine to exercise care to avert a collision. Their negligence must be new breach of a duty arising subsequent to the traveler's negligence. Bazzell v. Railway, 132 Kan. 285, 300 P. 1110; Dyerson v. Railroad, 74 Kan. 528, 87 P. 682; Jamison v. Railroad, 122 Kan. 305, 252 P. 474; Williams v. Railroad, 122 Kan. 256, 252 P. 470. The doctrine is not applicable where there is a physical opportunity for the driver of the automobile to escape. Williams v. Railroad, 122 Kan. 256, 252 P. 470; Whittaker v. Railroad, 125 Kan. 683, 265 P. 1103. Plaintiff, because of his own negligence, is in no position to complain of the alleged failure of the engineer to keep a lookout or to discover the approaching automobile as it entered a place of peril. Maris v. Railroad, 98 Kan. 205, 158 P. 7; Coleman v. Railroad, 87 Kan. 193, 123 P. 758. It was not negligence on the part of the engineer to have sounded the warning blasts of the whistle before applying the brakes. Clark v. Railroad, 127 Kan. 1, 272 P. 129. (c) Plaintiff was, as a matter of law, guilty of contributory negligence, continuing and directly contributing to cause the collision. Williams v. Railroad, 122 Kan. 256, 252 P. 470; Bazzell v. Railroad, 132 Kan. 285, 300 P. 1108; Jamison v. Railroad, 122 Kan. 305, 252 P. 474; Bunton v. Railroad, 100 Kan. 169, 163 P. 801; Dyerson v. Railroad, 74 Kan. 528, 87 P. 680; Rule v. Railroad, 107 Kan. 479, 192 P. 729; Dearing v. Railroad, 285 P. 621; Dennis v. Railroad, 300 P. 944; Rathbone v. Railroad, 113 Kan. 257, 214 P. 109; Mourning v. Railroad, 110 Kan. 417, 204 P. 721; Williams v. Railroad, 102 Kan. 268, 170 P. 397; Adams v. Railroad, 93 Kan. 475, 144 P. 999; Atkinson v. Lusk, 103 Kan. 446, 173 P. 914; Wehe v. Railroad, 97 Kan. 794, 156 P. 742; Grisham v. Traction Co., 104 Kan. 712, 181 P. 119; Vance v. Railroad, 298 P. 764; Willey v. Railroad, 60 Kan. 819, 58 P. 472; Woodard v. Bush, 282 Mo. 163, 220 S.W. 839. The duty to look and listen for an approaching train is a continuing one until the crossing is safely passed. One must look where looking will be effective. Atchison, T. & S. F. Railroad Co. v. Holland, 60 Kan. 209, 56 P. 6; Reader v. Railroad, 112 Kan. 402, 210 P. 1113; Young v. Railroad, 57 Kan. 144, 45 P. 583. A traveler is held to have seen and heard that which he could have seen and heard by the exercise of ordinary care. Gaffney v. Railroad, 107 Kan. 486, 192 P. 736; Neosho Grocer Co. v. Railroad, 215 Mo.App. 57, 238 S.W. 514. Plaintiff's negligence is not lessened or excused by the fact that there was a rough crossing. He was familiar with the crossing. It was his duty to discover its condition, which was apparent, and to govern himself accordingly. He does not testify that the rough condition of the crossing required his attention, because he says he was looking all the while for an approaching train. The only defect in the crossing which could, in any degree, have affected him was the hole south of the crossing plank on the south side of the south rail of the main-line track. If he had discovered the train and stopped, as it was his duty to have done, he would have stopped before the wheels of his automobile ever reached this hole. Reader v. Railroad, 112 Kan. 402, 210 P. 1113; Whiteker v. Railroad, 125 Kan. 683, 265 P. 1103; Rathbone v. Railroad, 113 Kan. 257, 214 P. 209. One who attempts to cross a railroad track ahead of an approaching train with such a slight margin of possible safety that his only possible chance to get across safely is for his engine to respond instantly when given more gas is not to be excused by the fact that his automobile did not respond and its speed increase. He is negligent as a matter of law, in thus chancing injury. Bunton v. Railroad, 100 Kan. 165, 163 P. 80; Rathbone v. Railroad, 113 Kan. 257, 214 P. 111; Whiteker v. Railroad, 125 Kan. 683, 265 P. 1104.

Edwin L. Moore, Charles Stephens, C. E. Rumery and C. R. Stauffacher for respondent.

(1) The court did not err in refusing to give defendant's requested instruction in the nature of a demurrer at the close of all the evidence in the case. (2) Two specific acts of negligence were submitted by the court in Instruction 6 namely, the defective crossing which kept the automobile from increasing its speed when plaintiff applied more gas after he was in peril, and the violation by defendant of the last clear chance rule. The conjunctive "and" required the jury to find both or return a verdict for defendant. The evidence with reference to the signal bell not being in operation is in the case only as one of the circumstances confronting plaintiff and not as a ground of recovery. (3) There was actionable negligence proven with respect to the condition of the crossing. Evy v. Davis, 244 S.W. 954; Sing v. Railroad, 30 S.W.2d 37. (4) Under the last clear chance doctrine, as applied in Kansas, the negligence of Caylor ceased the moment he found himself in peril and applied the gas in his effort to get over out of the pathway of the train -- the only possible chance of safety from the injury. Under such circumstances, Caylor's negligence had ceased and defendant's employees became guilty of a breach of duty arising subsequent to his negligence. Springer v. Railroad Co., 95 Kan. 408, 148 P. 611; McMahon v. J. & P. Ry. Co., 96 Kan. 271, 150 P. 566; Jusnik v. Ry. Co., 109 Kan. 359, 199 P. 90. (5) The humanitarian doctrine is not applicable where there is a physical opportunity for a driver of the automobile to escape after he is once in peril. The very issue was submitted to the jury as a question of fact for their consideration and the verdict found defendant's engine employees guilty in their failure to make any effort to check the speed of the engine and train. Caylor can recover, under the Kansas...