Cunningham v. St. Louis & S. F. Ry. Co.

• Decision Date: 20 July 1928
• Docket Number: No. 4274.,4274.
• Citation: 9 S.W.2d 166
• Court: Missouri Court of Appeals
• Parties: CUNNINGHAM et al. v. ST. LOUIS & S. F. RY. CO.

9 S.W.2d 166

CUNNINGHAM et al. v. ST. LOUIS & S. F. RY. CO.

No. 4274.

Springfield Court of Appeals. Missouri.

July 20, 1928.

Rehearing Denied September 18, 1928.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Action by George F. Cunningham and another against the St. Louis & San Francisco Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

E. T. Miller, of St. Louis, and Ward & Reeves, of Caruthersville, for appellant.

McKay & Peal, of Caruthersville, and Moore & Fitch and Hensley, Allen & Marsalek, all of St. Louis, for respondents.

BAILEY, J.

Action for damages under the statute for the death of Mattie Mae Cunningham, a minor daughter of plaintiffs. Trial by jury. Verdict and judgment for plaintiffs. Defendant appealed. An opinion was rendered by this court, affirming the judgment, but thereafter we sustained defendant's motion for rehearing, and the case has been resubmitted.

The deceased came to her death as the result of an accident caused by an automobile, in which she was riding as the guest of one Artie G. Holt, being struck at a crossing by a train of defendant. The chief complaint in this court is that the trial court committed error in not sustaining a demurrer to plaintiff's testimony. Counsel do not waive the other points raised in their brief, and we have carefully examined them, but find no reversible error therein. We shall therefore confine ourselves to the question of a demurrer to plaintiffs' testimony.

The collision between the automobile in which deceased was riding and the train of defendant occurred in broad daylight at a point just inside the city limits of the city of Caruthersville, in Pemiscot county, Mo. The railroad track at that point runs practically east and west, and the public highway, at the crossing, runs north and south. The west line of the highway is the west line of the city corporation. The automobile was being driven north on the highway, and the train of defendant was traveling east. Several grounds of negligence are alleged, but recovery was had upon the alleged violation of a speed ordinance of the city of Caruthersville, which prohibited trains running at a greater speed than 8 miles per hour within the city limits. It is conceded that the train was running a few minutes late, and at a speed of 25 to 30 miles per hour, as it approached this crossing, and plaintiffs' evidence tends to show that there was no slacking of the speed until after the collision.

It is urged by appellant that the speed of the train was not the proximate cause of the collision, but that the collision was caused solely by the negligence of Mr. Holt, who was driving the automobile, in not seeing the approaching train and stopping the automobile before it got upon the railroad track. It is also contended that the evidence shows that the deceased was guilty of contributory negligence as a matter of law in not seeing the approaching train and having the driver of the automobile stop before going upon the railroad track.

The evidence most favorable to plaintiffs tended to prove that plaintiffs' daughter, Mattie Mae Cunningham, was about 19 years of age at the time she was killed. She was riding in the front seat of a five-passenger touring car as the guest of one Artie G. Holt, a man about 35 years of age and an experienced automobile driver. Miss Cunningham had never driven a car, but was not unaccustomed to riding in one. The curtains were up on the car as they approached the crossing, driving north. Their view was not obstructed after they reached a point about 100 feet from the track, and if either of them had looked they could have seen the train in ample time to have enabled Holt to stop his automobile before reaching the track. Both of these parties were killed in the accident; hence what they in fact saw and did, and in particular what Miss Cunningham saw, said, or did, at the time, may only be determined in the light of the circumstances surrounding the accident as related by others.

Much stress is placed by defendant on the testimony of one of plaintiffs' eyewitnesses to the effect that, as the automobile in which Holt and Mattie Cunningham were riding passed him at a point several hundred feet south of the crossing, they were looking at each other, laughing and talking, and apparently paying no attention to the railroad track or on-coming train. This evidence was elicited from one Will Davis, a colored man, who also testified the automobile came to a complete stop about 16 feet south of the railroad track. Defendant's brief contains a running fire of justifiable ridicule of this witness' testimony. Some of his statements were so contradictory and improbable as to render any testimony he gave of little or no force. But, taking his testimony at its full value, he does not state this laughing, talking, and inattention continued until the auto was struck by the train, and certainly the fact that, as he says, the automobile stopped 16 feet from the crossing, strongly indicates that the occupants of the car were paying attention to the crossing. We fail to find in the record any direct evidence as to the conduct, attention, or inattention of this couple as they approached the crossing, other than the testimony of this witness Davis. There is substantial evidence that the automobile was running at the rate of 10 or 15 miles per hour when 100 feet from the crossing, and continued toward the crossing at undiminished speed.

The testimony of one of plaintiffs' eyewitnesses on direct examination might be construed as indicating that defendant's trains always ran across this particular crossing in excess of the ordinance speed. After stating that it seemed to him defendant's train was running "about as fast as it could," he further testified that he knew "it was running fast, like it always run." The statement that the train always ran at that speed may have referred to the speed at the crossing, but the point was not further developed at the trial. There is also evidence that Mattie Cunningham, the deceased, had lived in the city of Caruthersville from January 3, 1924, to the date of her death, February 10, 1924, and prior to that had lived in the country near the city. Her father testified that he supposed she had been in cars with parties that drove across this crossing where she was killed.

For the purpose of this demurrer, we may assume that, since...