Connole v. Illinois Cent. R. Co.

• Decision Date: 05 November 1929
• Docket Number: No. 20614.,20614.
• Parties: CONNOLE v. ILLINOIS CENT. R. CO.
• Court: Missouri Court of Appeals

21 S.W.2d 907

CONNOLE v. ILLINOIS CENT. R. CO.

No. 20614.

St. Louis Court of Appeals. Missouri.

November 5, 1929.

Rehearing Denied November 19, 1929.

Appeal from St. Louis Circuit Court, Frank Landwehr, Judge.

"Not to be officially published."

Action by Martha L. Connole, as administratrix of the estate of John Francis Giles, deceased, against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis (V. W. Foster, of Chicago, Ill., of counsel), for appellant.

C. L. De Renthel and Marvin E. Boisseau, both of St. Louis, for respondent.

BENNICK, C.

This is an action by the administratrix of the estate of John Francis Giles, deceased, to recover damages for the latter's death, which occurred when an automobile in which he was riding as a guest was struck by one of defendant's trains near Murphysboro, Ill., on May 30, 1925. The verdict of the jury was for plaintiff in the sum of $6,500; and, from the judgment rendered, defendant has duly appealed.

Both statutory and common-law negligence was pleaded and relied upon by plaintiff: First, that defendant failed to comply with the Illinois statute (Smith-Hurd Rev. St. Ill. 1929, c. 114, § 59) relative to the giving of signals by bell or whistle when approaching a railroad crossing; and, second, that it failed to give any adequate, timely, or sufficient warning of the approach of the train.

The trial was had upon an answer of defendant from which everything had been stricken out on plaintiff's motion save the first paragraph, which was a general denial of each and every allegation in the petition contained.

The evidence disclosed that early in the morning of the day in question, which incidentally was Decoration Day, the deceased, in company with his wife and one Chester Kleissle and his wife, all of St. Louis, Mo., was riding in a Chevrolet coupé along a detour to a main highway beyond Carbondale, Ill., en route to Ava, Ill., to visit the parents of the two women, who were sisters. The automobile was being driven by Kleissle, and to his right was his wife, and to her right the deceased, whose wife was sitting in his lap.

From the point where the parties entered upon the detour, to the railroad crossing where the accident occurred, was a distance of approximately 2¾ miles, and none of the occupants of the automobile had ever been over the route before, or knew that a railroad crossing was to be expected. Moreover, it was shown by all the evidence that the fog was so dense at the time that neither the operatives of the train nor the occupants of the automobile were able to discern each other's approach. After driving over the detour at a speed of 15 or 20 miles an hour, the automobile passed over an embankment and came upon the crossing, where it was struck by the train running at a speed of 50 miles an hour, and all of the occupants of the automobile, save Kleissle alone, were killed.

Further details of the evidence, and particularly as they may bear upon the question of whether a timely and sufficient warning was given of the train's approach, will be hereinafter adverted to in connection with the several matters for decision.

The first attack upon the propriety of the judgment is leveled at the action of the court in sustaining the motion to strike out all of defendant's amended answer, except the first paragraph thereof, which consisted of a general denial. The situation arose in somewhat an unusual manner. Originally Kleissle had also been named as a party defendant to the action, and the first petition filed by plaintiff had charged him with negligence under a pleaded Illinois statute (Smith-Hurd Rev. St. Ill. 1929, c. 121, § 161), which requires the driver of an automobile on approaching a railroad crossing to reduce his speed to 10 miles an hour, and to bring his automobile to a full stop whenever a stop sign has been placed before the crossing. Subsequently the action was dismissed as to Kleissle, and an amended petition was thereupon filed which omitted all allegations as to him, except that by inadvertence, as plaintiff's counsel state, the above statute was left standing as a part of the context.

Defendant's answer to both the original and the amended petition had been a general denial. At the commencement of the trial, however, and by leave of court first had and obtained, plaintiff struck the above statute from her petition, whereupon defendant then sought to file an amended answer, which, in addition to the general denial, set up the existence of such statute, and alleged that Kleissle had violated it, and that such violation was the sole cause of the death of the deceased. Plaintiff then moved to strike out the amended portion of the answer in which it had been attempted to plead the statute in question, and was sustained by the court; and defendant now contends that such ruling of the court was error.

Defendant argues upon the point that it had a right to defend on the ground that the sole and direct cause of decedent's death was the statutory negligence of Kleissle; that it could not rely upon such foreign statute unless it was pleaded; and that, consequently, the action of the court in striking out that portion of its answer was prejudicial to its rights, in that it was thereby precluded from making its defense.

We think the conclusion reached by defendant is untenable, and that it was in no wise harmed by the ruling of the court of which it now complains. It is important to bear in mind that the amended answer did not purport to allege that the deceased himself was negligent, or that he participated in, or was in any manner responsible for, Kleissle's alleged negligence. Thus it is obvious that the plea was not one of contributory negligence, nor was it a confession and avoidance, so as to have constituted an affirmative defense at all; but rather the gist of the answer was that the casualty was solely occasioned by the negligence of Kleissle, and everything which defendant wished to show in support of such defense, including the fact of the existence of the particular statute, was equally admissible in evidence under its general denial, upon the theory that proof of Kleissle's sole responsibility for the collision was a full denial of defendant's own responsibility for it. In other words, the foreign statute was not relied upon as the basis of a defense, that is, by way of justification of an admitted act on defendant's part, but instead it was advanced as prescribing a rule of conduct the violation of which would constitute negligence, and as an evidential part of the defense to be made, in view of which it was no more necessary for the purpose of preserving defendant's rights to permit it to plead the particular statute than to require it to plead whatever evidence it might have had of other kind or character which likewise tended to establish its own complete nonliability by proof that the collision was the direct result of the sole negligence of some one else. Bragg v. Metropolitan Street Ry. Co., 192 Mo. 331, 350, 91 S. W. 527.

The chief insistence of defendant, however, is its point with reference to the alleged error of the court in refusing its requested peremptory instruction in the nature of a demurrer to all the evidence. It argues that the negative testimony of plaintiff's witnesses, in view of the circumstances in which they were placed, was insufficient to make out a case of negligence for failure to warn, and that consequently the action of the court in submitting the case to the jury upon such theory was improper.

The evidence for plaintiff upon the question of whether a warning was given of the train's approach consisted of the testimony of three witnesses, Kleissle, the driver of the ill-fated automobile, one McNeill, who was driving along the detour some distance in the rear of Kleissle, and a Sergeant Worthen of the United States Army, who had been given a lift in McNeill's car.

Suffice it to say that all three witnesses testified that they heard no whistle or bell. Kleissle was certain that he had one of the windows open as he drove along the detour, but he admitted that he was not aware that he was approaching a railroad crossing, and that he was therefore not listening for signals of any kind. He further admitted that following the collision his memory was a blank as to anything that had occurred after he came within three-fourths of a mile of the railroad track.

McNeill and Worthen could not have been very far behind the automobile in which the deceased was riding, in view of the testimony that they were not more than 400 feet from the crossing when they heard the bell of the locomotive as it backed up the train after the collision, and that they arrived at the scene of the casualty before any of the bodies had been removed from the wreckage. Moreover, it further appeared that the detour was constructed largely parallel to the railroad track, and that at no point were they more than three-fourths of a mile from it.

Worthen testified that he did not know they were approaching the track, and that he was first apprised of the train's presence when he heard the sound of the bell as the train was backed up to the crossing. McNeill stated that, while he knew of the vicinity of the track, he was not thinking of trains or listening for signals as he drove along the detour, but that instead he was engaged in a conversation with Worthen, who was sitting in the seat beside him. His testimony did show, however, that he was at least sufficiently alert to his surroundings to observe a sign of some sort alongside the roadway which reminded him that there was a railroad track ahead.

Inasmuch as a negative fact can ordinarily be proved only by negative evidence, the courts have laid down the rule for cases of this character that, if a witness is shown to have been in close proximity to the track, and in a position to have...