Chamberlain v. Thompson

• Decision Date: 09 March 1953
• Docket Number: No. 1,No. 43157,43157,1
• Parties: CHAMBERLAIN v. THOMPSON
• Court: Missouri Supreme Court

Page 779

256 S.W.2d 779

CHAMBERLAIN v. THOMPSON.

No. 43157.

Supreme Court of Missouri, Division No. 1.

March 9, 1953.

Motion for Rehearing or to Remand for New Trial Denied April 13, 1953.

Thomas J. Cole, St. Louis, M. Walker Cooper and Allen D. Churchill, Bloomfield, for appellant.

Roberts & Roberts, Farmington, for respondent.

VAN OSDOL, Commissioner.

Defendant had appealed from a $10,000 judgment entered upon verdict for plaintiff in her action for the wrongful death of her husband which occurred when the automobile the husband was driving was struck by defendant's train at the railroad crossing where the Belmont Branch of defendant's line crosses Highway W in St. Francois County.

Plaintiff's case was submitted to the jury solely on primary negligence of defendant in failing to perform defendant's statutory duty to ring a bell continuously or sound a whistle at intervals from a distance of at least eighty rods from where a railroad crosses a traveled public road or street until the engine has crossed such a thoroughfare. Section 389.990 RSMo 1949, V.A.M.S.

Defendant-appellant contends the trial court erred in overruling defendant's motions for a directed verdict. Defendant-appellant asserts that the evidence was not sufficient to make out a case for the jury, and that, as a matter of law, plaintiff's decedent was contributorily negligent. Defendant-appellant further contends that plaintiff's principal instruction was prejudicially erroneous. But, in view of our conclusion infra that the evidence tending to show defendant's negligence as submitted was insufficient to justify the submission of plaintiff's case to the jury, it is not necessary to review the contentions of defendant-appellant relating to contributory negligence and error in instructing the jury.

In this case, wherein plaintiff has alleged and has relied on the statutory negligence of defendant and has submitted the issue of negligence in neither ringing the bell nor sounding the whistle in the manner and throughout the distance as required by Section 389.990, supra, plaintiff had the burden of making a prima facie showing (and the burden of proving) that, as submitted, neither of the signals was given. The railroad's duty under the statute is performed if it sounds either the bell or the whistle as, and for the distance, required by statute. Hoelzel v. Chicago, R. I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Lynch v. Missouri-Kansas-Texas R. Co., 333 Mo. 89, 61 S.W.2d 918; Toeneboehn v. St. Louis-San Francisco R. Co., 317 Mo. 1096, 298 S.W. 795; Van Note v. Hannibal & St. J. R. Co., 70 Mo. 641.

In determining whether the evidence is sufficient to make out a case for the jury, plaintiff's evidence is considered as true and plaintiff is given the benefit of any and all reasonable inferences therefrom. Evidence in favor of defendant is disregarded; but, of course, plaintiff is given the aid of any evidence offered by defendant which is favorable to plaintiff. Nash v. Normandy State Bank, Mo.Sup., 201 S.W.2d 299; See v. Wabash R. Co., 362 Mo. 489, 242 S.W.2d 15.

Defendant's Belmont Branch line between Bismarck and Charleston crosses Highway W in a general northwest-southeast direction. Highway W from Farmington approaches the crossing from the east (from a little north of east). In order to simplify our statement of the facts, we shall consider defendant's line as if it were lying due north and south, and Highway W as if it were a due east-west highway. However, several hundred feet north of the crossing defendant's Belmont Branch line 'curves' and a 'whistling post' or 'whistle board' is situate west of the track on this curve at a point thirteen hundred sixty-two feet north of the crossing.

Approaching the crossing from the east, Highway W passes through a cut. The crest of the embankment on either side of the cut is a little more than twelve feet higher than the surface of the highway at a point two hundred fifty feet east of the crossing. The elevation of the embankment decreases in relation to the highway surface as the highway approaches the crossing, and the surface of the embankment levels off at the crossing to the same elevation as that of the highway surface. At a point two hundred feet east of the crossing the embankment is 10.9' higher than the surface of the highway; at a point one hundred fifty feet east, 6.3' higher; and at a point one hundred feet east, 5.3' higher. The elevation or grade of the lineal surface of Highway W, approaching and arriving at the crossing from the east, declines approximately ten feet in the last two hundred fifty feet. Plaintiff introduced evidence tending to show that one seated in an automobile parked on the highway eighty-seven feet east of the crossing cannot hear the sound of a whistle or bell until the engine of a train, approaching from the north, reaches a point a 'little bit' less than one hundred sixty-five feet north of the crossing. There was also evidence that one cannot hear the sound of a ringing bell when the whistle is sounding.

A little after eight o'clock in the morning of February 5, 1951, plaintiff's decedent, Marvin E. Chamberlain, driving a 1950 Tudor Ford on the way to Doe Run, approached from the east on Highway W and passed onto the crossing where the automobile was struck by the engine drawing defendant's southbound train of seventeen cars including a coach, the last car. The automobile was thrown southwestwardly into or through the railroad right-of-way fence south of Highway W.

Defendant's engineer, plaintiff's witness, testified that, leaving Bismarck and going southwardly toward Delassus (approximately one-half mile south of Highway W), the train was moving about thirty miles per hour but the train's speed was reduced to about twenty-five miles per hour at a point two hundred feet north of the crossing. When the engine was about one hundred twenty-five feet from the crossing the fireman called to the engineer, "Hold it. There is a car coming fast.' * * * I (the engineer) had my hand on the throttle when he hollered. I immediately jammed the throttle, grabbed the brake valve and then turned the sand on.' The engineer testified that he had begun to whistle for the crossing when he came in sight of the whistle board and continued the whistling all the way to the crossing, and the whistle was 'still blowing wide open at the time of the impact.' The bell was ringing, and was still ringing when he stopped the engine south of the crossing.

Plaintiff's witness (defendant's engineer, as stated) and witnesses for defendant (including defendant's fireman) testified that the whistle was sounding after the train approached the whistle board (over eighty rods to the northward). We shall ignore such testimony, however, and shall further examine the record in search of other evidence, substantial in...