Chawkley v. Wabash Ry. Co.
| Decision Date | 27 June 1927 |
| Docket Number | No. 25801.,25801. |
| Parties | CHAWKLEY v. WABASH RY. CO. et at, |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.
Suit by Blanche Chawkley against the Wabash Railway Company, W. H. Long, and another, in which Soper J. Taul, administrator of the estate of W. H. Long, was substituted for W. H. Long after Long's death. From a judgment for plaintiff, defendants Wabash Railway Company and W. H. Long appeal. Reversed and remanded.
Homer Hall, of St. Louis, H. L. Moore, of Excelsior Springs, D. F. Warren, of Trenton, and S. J. & G. C. Jones, of Carrollton, for appellants.
Ed. M. Harber and A. G. Knight, both of Trenton, and Gerald Cross and Pross T. Cross, both of Lathrop, for respondent.
The plaintiff brought this suit to recover damages on account of the death of her husband and two children, and injuries to herself, which occurred in Clay county when the automobile in which they all were riding was struck by an engine drawing a train of the defendant Wabash Railway Company. The suit was filed in the circuit court of Davies county against the defendant railway company, Christopher Smith, engineer, in charge of the engine, and Herbert Long, fireman. Afterwards the death of Engineer Smith was suggested, and the suit dismissed as to him. The defendant then filed application to remove the cause to the federal court, which application was overruled. The case was transferred on change of venue to Grundy county, where a trial was had, verdict returned, and judgment rendered June 30, 1924.
The petition is in four counts: The first asks $10,000 damage on account of the death of plaintiff's husband; the second, $10,000 on account of the death of plaintiff's daughter Margaret Chawkley, four years of age; the third, $10,000 on account of the death of plaintiff's daughter Blanche Chawkley, six years of age; and the fourth, $50,000 for plaintiff's injuries. The verdict awarded her $10,000 on the first count, $5,000 on the second count, $5,000 on the third count, and $30,000 on the fourth count.
While the appeal was pending at the April term, 1926, of this court, the death of the defendant Long was suggested, Soper J. Taul, his administrator, entered appearance, and action was revived against him.
Ernest Chawkley, with his family, lived in Kansas City, Kan. On September 4, 1923, he, with his wife and two children, Blanche and Margaret, drove to Clay county, Mo., north of Excelsior Springs, to visit Mr. and Mrs. Jenkins. After a visit to the Jenkins home they drove in Chawkley's touring car to the Jenkins farm, which Chawkley contemplated renting. They drove across the defendant's railroad track at the Harris crossing, going west, and soon started on the return trip to the Jenkins home, going east, Chawkley driving the car, Jenkins sitting with him in the front seat. The plaintiff, Mrs. Chawkley, sat on the right in the rear seat, with Mrs. Jenkins on the left, and the two little girls between them. When they reached the Harris crossing, a train of the defendant company came from the north and struck the automobile as it got upon the track, instantly killing the two little girls, injuring Chawkley so that he died within three hours, and injuring plaintiff.
The negligence alleged as ground for recovery was failure of the servants of the defendant company, Engineer Smith and Fireman Long, to sound the statutory warnings on approaching the crossing, and, principally, failure to observe the humanitarian rule and stop the train, or slacken its speed, or give warning of its approach, after the operatives saw, or by the exercise of ordinary care could have seen, the plaintiff and her companions in a position of imminent peril. The case was submitted to the jury on the first count on the humanitarian rule, and on each of the other counts it was submitted on the humanitarian rule and the company's alleged primary negligence in failing to give the statutory signals.
I. The first error assigned is the action of the trial court in overruling defendant's demurrer to the evidence on the ground that a case was not made out on any theory of negligence. This makes it necessary to examine the evidence bearing particularly upon the humanitarian rule.
The railroad track at that point, running north and south, was upon a grade which put the tops of the rails about 5 feet higher than the roadway at a distance of 400 feet from the crossing. The road approached the crossing in ascending grade. For about 100 feet west of the crossing the grade rose 3 feet 2 inches. In the last 30 feet of the approach to the crossing the grade rose 2.23 feet. The right of way at that point was 100 feet wide. The plaintiff introduced measurements to show that the right of way fence on the west was 55 feet 7 inches from the track, and that the wrecked automobile was found 520 feet south of the center of the crossing; but defendants' evidence tends to show that it was carried less than 500 feet when the train stopped.
The plaintiff introduced evidence to show that, as they approached the crossing, a field of high corn on the left came within a few feet of the right of way fence, which, with weeds and bushes between the corn and the fence, obscured the view to the north so that the occupants of the car could not see the coming train.
The engine was moving backward; the train was hitched to the front, so that the engineer and fireman were obliged to look back through the cab, over the tender, in order to observe any one approaching the railroad in front. This made it more difficult to observe persons approaching the track, and caused some delay in operating the controls so as to check the speed of the train. While this would not impose a greater degree of care upon the employees of the railroad company, ordinary care involved diligence commensurate with that situation, and required them to be more alert than if they were driving forward and were themselves in the normal positions. This circumstance placed the engineer to the right, away from the approaching automobile. Only Fireman Long, on the west side, was in position to see the approach of the automobile, and upon his diligence in observing the danger, announcing it to the engineer, and the engineer's promptness of action would depend whether sufficient diligence was observed.
Plaintiff introduced evidence tending to show that no whistle or bell was sounded, or warning given of the train's approach. She introduced the deposition of Fireman Long, and also Long was sworn and testified as a witness for her. He was not definite in his statements about the rate of speed at which the train and automobile were going. He said in one place that the automobile was traveling at the rate of 20 miles an hour. Other witnesses testified to the same. He said also that the train was traveling about 25 or 30 miles an hour. In another place he said that the train was going about twice as fast as the automobile. He said he saw the automobile when it was 200 feet from the crossing. The plaintiff's counsel tried to get him to say that he had admitted it was 300 feet, but he stuck to the statement that it was about 200 feet. Then this occurred:
In his deposition he stated that he could not tell which way the people in the automobile were looking. While on the stand he testified that he saw the automobile 200 feet away from the crossing, and immediately told the engineer to stop. In answer to leading questions by plaintiff's counsel, which the court permitted, he stated that he did not say anything to the engineer until the automobile was within 75 feet of the track. He then told the engineer to stop. On repeated questioning he stated that was all he said to the engineer. He never suggested the whistle because the engine had whistled for that crossing back at a distance which is not definitely given. He stated further that in order to sound the whistle all the engineer had to do was to give one pull on the bell cord—to reach up and take hold of the cord.
Mrs. Chawkley and Mrs. Jenkins, the only survivors of the wreck, testified that as the automobile approached the crossing some men at a sand car, to the right of the crossing, saw the approaching automobile and began to call and wave their hands, endeavoring to attract attention. They were seen by Fireman Long. One of those men, Otha Waters, was asked what he saw about the people in the automobile that caused him to think a warning was necessary when they were about 100 or 150 feet from the crossing. He said:
"Well, they just kept coming; the automobile was running about 20 miles an hour."
Several of those men testified to their attempts to attract the attention of those in the automobile to the oncoming train. One of them said they did this when the automobile was about even with the right of way fence, which the evidence showed was 55 feet 7 inches from the crossing. Long put the distance of the automobile at 100 feet when the sand men made their demonstration.
The defendants produced, as witnesses, engineers who testified that the train would run about 450 feet after the engineer got the signal to stop. It ran a greater distance than that after the collision. There was also evidence tending to show that the brakes were not applied until about the moment of the collision.
The fact that the men at the sand car saw that the...
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