Dixon v. Wabash R. Co.

• Decision Date: 17 December 1946
• Docket Number: No. 27047.,27047.
• Citation: 198 S.W.2d 395
• Parties: DIXON et al. v. WABASH R. CO.
• Court: Missouri Court of Appeals

198 S.W.2d 395

DIXON et al. v. WABASH R. CO.

No. 27047.

St. Louis Court of Appeals. Missouri.

December 17, 1946.

Rehearing Denied January 17, 1947.

Appeal from Circuit Court, Audrain County; Frank Hollingsworth, Judge.

"Not to be reported in State Reports."

Action by James L. Dixon and another against Wabash Railroad Company to recover damages for death of plaintiffs' son in grade crossing collision between automobile and train. Verdict and judgment for plaintiffs, and defendant appeals.

Judgment affirmed.

Fry & Edwards and Jackson A. Wright, all of Mexico, and Ben Ely, of Hannibal, for appellant.

James P. Boyd and W. W. Barnes, both of Paris, Charles E. Rendlen, of Hannibal, and Rodgers & Buffington, of Mexico, for respondents.

HUGHES, Presiding Judge.

This is an action for damages prosecuted under Section 3652, R.S.Mo., 1939, § 3652, Mo.R.S.A., by the father and mother, for the death of their son, James L. Dixon, Jr., age 15 years, which occurred at about 10:30 p.m. October 8, 1943, by reason of a collision between an automobile in which the son was a guest and a train operated by defendant over a crossing of Main Street in Paris, Missouri. The negligence relied upon by plaintiffs, and submitted by the instructions, was the allegation that defendant's train was at the time being operated in excess of the speed limit of six miles per hour as established by an ordinance of the City of Paris. Defendant's answer admitted its operation of the train, the city ordinance, and that a collision occurred, and denied the other allegations of the petition, and further alleged as affirmative defenses contributory negligence, and that the death was due to the sole negligence of the driver of the automobile.

On the trial of the case, and at the close of plaintiffs' evidence, defendant filed a motion for a directed verdict on the ground that plaintiffs had failed to establish a cause of action against the defendant. The motion was overruled, and the defendant elected to stand on the motion, and offered no further evidence. The defendant also asked instructions A, B, D-1, and D-2, which were in the nature of peremptory instructions, that the verdict be for the defendant, all of which were refused. The case was submitted upon the evidence and instructions approved by the court (both sides having requested instructions), and the jury returned a verdict in favor of the plaintiffs for $2,000. After unavailing motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, the defendant perfected its appeal from the final judgment entered in the cause.

Since the plaintiffs were successful before the jury, and the only question presented on appeal being whether the evidence was sufficient to make a submissible case for plaintiffs, plaintiffs are entitled to have the evidence, and every reasonable inference to be drawn therefrom, considered in that light most favorable to them, it being the rule of law that an appellate court will never interfere with a verdict when there is any substantial evidence to support it, or when there may be reasonable inferences drawn from substantial evidence that would support the verdict. Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924.

The evidence in this case is as follows: The crossing where the collision occurred is located in Paris, Missouri, over Main Street, which is a heavily traveled street, it being also the route of U. S. Highway No. 24 and Missouri Highway No. 15 through Paris, and is about two blocks north of the public square. The crossing of Main Street is over the main line track used by defendant. There were no side tracks across the Main Street crossing, although one was located just west of the crossing. From the evidence presented, the crossing was entirely blind when approached from the north. The testimony shows that you would have to be practically on the crossing before you could see a train coming down the tracks from the west. The track was marked by a cross-arm signal post, and waved lines painted on the pavement.

On the evening of October 8, 1943, seven high school boys, who had attended a public school activity, were seen to circle the public square in Paris about 10:30 p.m., and proceed north on Main Street, or Highway No. 24. They were in a 1936 Chevrolet, two-door sedan, which was owned by Beulah B. Adams, mother of Roy Thompson, age 16. Roy Thompson was driving the car when it was last seen. James L. Dixon, Jr., was in the back seat with three other boys. The last time the boys were seen until after the collision had occurred was as the car went north.

Between 10:30 and 10:50 p.m. a Wabash freight train, consisting of about 45 cars, not counting the engine and tender, came through Paris, and passed over the crossing. It was not intended to stop the train in Paris. The railroad track through Paris runs downgrade from about one and one-half miles west of Paris and levels out about the crossing in question, and then begins to run upgrade after reaching the eastern limits. The train was proceeding downgrade from the western limits of Paris, which is 3207 feet west of the Main Street crossing, until at or near the time it reached the crossing when the grade became level. The train, at a point designated as about the power plant, which is something over 1643 feet west of Main street crossing, had the brakes on and slowed down to about 20 miles per hour. The engineer then released the brakes, and, due to the force of the train pushing behind the engine, built up speed until it was going approximately 30 miles per hour when it crossed the Main Street crossing. There is an ordinance in the City of Paris which requires trains not to operate at a speed in excess of six miles per hour through the corporate limits.

As the train passed over this crossing, the engineer, who was sitting on the right, or south side of the engine, felt a shock on the engine. The weight of the engine was between 250 and 300 tons. He thought the trailer wheels of the engine had left the rails, and attempted to determine if this was true. He heard the fireman say something about the same time as the shock, but he did not understand what was said. The engine straightened up, and he knew that it was still on the tracks. When the train was 200 or 280 feet east of the crossing, he learned of the automobile and engine colliding. He immediately applied the brakes, and stopped the train as soon as possible. On examination of the engine, the fenders, radiator and a headlight of the automobile were found wedged under the trailer frame of the engine, just under the cab, and behind the four drive wheels on the left or north side of the engine. There were marks on the engine for a space of about eight feet at this point.

Five of the seven boys were dead when found, and another died later at the hospital. The body of the Dixon boy was found about a box car length east of the crossing. The record is silent as to what became of the seventh boy.

Appellant does not claim that the evidence shows that the deceased was guilty of contributory negligence, and neither does it seek to impute the negligence of the driver of the automobile to the deceased in order to escape liability or defeat plaintiffs' cause of action. What appellant does claim is that the evidence shows that not only the proximate cause but the sole proximate cause of the accident was the negligence of the driver of the automobile. And in considering that question and the authorities cited by both appellant and respondents we must bear in mind that in applying other cases which have been decided, what may have been said in the opinions in those cases should be confined to and limited by the facts of the case under consideration when the expressions relied upon were used, and should not be extended to cases where the facts are essentially different. Morse v. Consolidated Underwriters, 349 Mo. 785, 163 S.W.2d 586. However, general principles of law as announced in other cases are a valuable aid and are to govern the determination of the issues in the case in so far as they are applicable to the facts involved.

The law generally applicable has been stated as follows: Ordinarily, the question of what is the proximate cause or sole cause of an injury is a question of fact to be...