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

• Citation: 9 S.W.2d 96,223 Mo.App. 14
• Parties: HENRY COX AND BETTIE COX, RESPONDENTS, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT. [*]
• Decision Date: 24 May 1928
• Court: Court of Appeal of Missouri (US)

9 S.W.2d 96

223 Mo.App. 14

HENRY COX AND BETTIE COX, RESPONDENTS, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri, Springfield

May 24, 1928

Appeal from the Circuit Court of Dunklin County.--Hon. W. S. C. Walker, Judge.

REVERSED.

Judgment reversed.

E. T Miller and Ward & Reeves for appellant.

Smith & Zimmerman for respondents.

BRADLEY J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.

Plaintiffs sued to recover for the death of their minor daughter, Cinda Cox, aged nineteen years, killed on a crossing in the city of Clarkton in Dunklin county on January 25, 1926. The petition charged that defendant was negligent (1) by backing its train over the crossing at fifteen miles an hour in violation of a speed ordinance limiting the speed of trains in the city limits to five miles per hour; (2) by backing its train at a high and dangerous rate of speed over the crossing obscured from view in approaching from the north; and (3) by a violation of the humanitarian rule. The answer was a general denial and a plea of contributory negligence. The reply was a general denial. Plaintiffs submitted their cause to the jury on the alleged violation of the speed ordinance and on the humanitarian doctrine.

Error is assigned on the refusal of general and special demurrers to the evidence at the close of the case, on the instructions and on the admission of evidence.

Two questions on the demurrers are presented, viz.: (1) Was deceased as a matter of law guilty of contributory negligence? and (2) under the facts may the humanitarian doctrine be invoked? Defendant's passenger train consisting of engine, tender and two coaches arrived at Clarkton from the east late in the afternoon. About 900 feet west of the depot the train turned north about seven miles to Malden. It backed from Malden back to Clarkton and then headed west to Gibson. The crossing where deceased was killed is about 300 feet west of the depot and about 600 feet east of the wye where the train turned north to Malden. Deceased was killed as the train was backing over the crossing on the return from Malden about 5:40 p. m.

It is conceded that defendant's train was exceeding the speed prescribed by the city ordinance, hence in disposing of plaintiffs' right to go to the jury on the alleged negligence in violating the speed ordinance, the only question is the alleged contributory negligence of deceased. Highway No. 25 runs north and south through Clarkton and crosses defendant's tracks in the south part of the town and this highway is the main street. In approaching the crossing from the north, buildings on the west side of the street obstruct the traveler's view to the west until within twenty-one feet of the north rail. Owen James, aged eighteen or nineteen, Blanche Irwin, aged twenty, and deceased, aged nineteen, were riding in a Ford sedan driven by James. Deceased had lived with her parents in Clarkton for eight years; Blanche Irwin had lived in Clarkton practically all her life and Owen James had lived there for quite a length of time. Deceased and Blanche Irwin had been together the greater part of the day and deceased was intending to spend the night with Blanche Irwin. Deceased lived in the northwest part of town. James was to drive them to the home of deceased. A short time before the collision deceased and Blanche Irwin got in the car with James and drove to Blanche's home. After leaving Blanche's home they did not drive to the home of deceased, but drove to highway No. 25, the main street of the town, and thence south towards the crossing. James sat on the left and was driving, deceased sat in the middle and Blanche on the right. In approaching the crossing James drove for some distance immediately behind C. P. Fisher who turned in towards the curb and stopped his car in front of or a short distance south of the entrance to a restaurant on the west side of the street. Fisher's car stopped twelve or fifteen feet north of the corner of the building which was twenty-one feet north of the north rail.

The train was due back from Malden about 5:40 p. m. and was on time. Such had been the schedule for a long time. The train, backing, approached the crossing from the west at about twelve miles per hour. The automobile approached at about fifteen miles per hour. The speed of the train was estimated all the way from ten to fifteen miles and the speed of the automobile was estimated as high as twenty miles per hour. It was not dark, but about dusk as all agree. The train had a light on the rear which was visible all the way from a quarter to a half mile. The conductor stood on the rear platform and sounded the air whistle at frequent intervals from the wye 600 feet west of the crossing. Also the steam whistle on the engine was blown at frequent intervals, and the fireman testified that the bell was ringing all the way from the wye until the collision.

The width of Main street or highway No. 25 is thirty-eight feet. James' car when it turned around Fisher's was at least thirty-three feet from the crossing, but at that point he and the other occupants would not have had any view west up the track except what the range of vision would have covered, but when the car reached the corner of the building, twenty-one feet north of the north rail, the view was unobstructed. If the train was moving twelve miles per hour it was moving seventeen and five-tenths feet per second. If the automobile was moving fifteen miles per hour it was moving twenty and seven-eighth feet per second. The collision occurred about the middle of the crossing; that, is, nineteen feet east of the sidewalk on the west side of the street. The automobile was struck about its middle or slightly towards its rear from the middle. On the basis of twelve miles for the train and fifteen miles for the automobile the train must have already entered the crossing when that part or portion of the automobile where the occupants were seated reached the corner of the building twenty-one feet north of the north rail. If the automobile was going eighteen miles and the train twelve and the collision was in the center of the crossing, then the automobile was thirty feet north of the point of collision when the train entered the crossing. If the train was running fifteen miles and the automobile twelve and the automobile was struck about its middle, then while the train moved twenty feet from the west side of the crossing to the point of collision the automobile moved sixteen feet. On this basis the occupants of the automobile were beyond the corner of the building before the train entered the crossing. The automobile when it turned around Fisher's car went nearer to the center of the street. Since it was struck at or near the center of the crossing and since there is no evidence that it made any turn to the east after passing Fisher's car it is fair to assume that the automobile approached the crossing traveling near the center of the street. Such being the case the automobile was about nineteen feet east of the building which was twenty-one feet north of the north rail, therefore, there was some range of vision west from the west line of the crossing before the occupants passed the corner of the building.

On any theory or basis deduced from the situation and the estimated speeds of the train and the automobile and allowing anything for the range of vision there is no escape from the conclusion that the occupants drove at least twenty-five or thirty feet towards the crossing and to the point of collision when the train was in plain view with light burning. And this does not take into account the air whistle, the steam whistle and the noise of the train, all of which were heard by everybody except the occupants of the automobile.

It is conceded that deceased was in the automobile as a guest of James who was also killed in the collision. Being the guest of the driver his negligence cannot be imputed to deceased. There is no controversy about such being the law. The concrete question, therefore, is: Was deceased as a guest guilty of contributory negligence as a matter of law? Blanche Irwin survived the collision and was a witness for plaintiffs. She related how she and deceased became guests of James on the fatal ride; that she did not see any headlight nor hear any noise of the train as the automobile turned around Fisher's car; that she and deceased were not talking to the driver as they approached the track; that she did not see the train until they were on the track: "It was just right on us when I saw it;" that she just got one glance of the train before it struck; that she was looking when they passed the corner of the building, but did not see the train until they got on the track; that there was nothing to obstruct the view after passing the corner of the building.

"As we approached this crossing we were talking, making plans for what we were going to do that night. Owen wasn't saying anything; but Cinda and I were talking about dates, one thing. We were talking about a man we hadn't met, and she wanted me to be with him, and I told her I didn't know him, and she says, 'Well, you can meet him' and says 'I'll be with you,' so that I could meet this man, and Owen was going to be with us too."

Witness at first stated that the conversation just quoted was finished about the time the automobile was even with the restaurant which was at about the place where Fishers car stopped which was at least thirty-three feet from the north rail. But when shown her testimony at a former trial of this cause she stated:

"This conversation that we had about the dates lasted until the front wheels of our car got to the first rail of the railroad track at the crossing where the...