Dudley v. Wabash Railroad Co.
| Decision Date | 01 March 1913 |
| Citation | 154 S.W. 462,171 Mo.App. 652 |
| Parties | ZELLA DUDLEY, by Next Friend, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
AFFIRMED.
Judgment affirmed.
J. L Minnis and Robertson & Robertson for appellant.
(1) Although Dudley's negligence cannot be imputed to plaintiff (Becke v. Railway, 102 Mo. 544; Stotler v. Railroad, 200 Mo. 107), yet as Dudley saw the train the negligence of failure to sound the statutory crossing signals was immaterial negligence and the sole producing cause of the injury was Dudley's wilfulness in attempting to cross. Mockowik v. Railroad, 196 Mo 570; Murray v. Transit Co., 176 Mo. 183; Heintz v. Transit Co., 115 Mo.App. 671; Fry v. Transit Co., 111 Mo.App. 335; McManamee v. Railroad, 135 Mo. 440; Hutchinson v. Railroad, 195 Mo. 546; Hutchinson v. Railroad, 161 Mo. 246; Moody v Railroad, 68 Mo. 470. (2) The verdict is excessive. Neves v. Green, 111 Mo.App. 642; Connon v. Nevada, 188 Mo. 162; McCaffery v. Railroad, 192 Mo. 152; Brady v. Railroad, 206 Mo. 540; Garard v. Coal & Coke Co., 207 Mo. 255; Burke v. Railroad, 120 Mo.App. 683; Evers v. Wiggins Ferry Co., 127 Mo.App. 244; Kirby v. Railroad, 146 Mo.App. 304.
E. S. Gantt and Barclay, Fauntleroy & Cullen for respondent.
(1) When the statutory signals are not given and a collision occurs at a crossing, it is presumed that this negligence caused it, and the burden is on the defendant to prove otherwise. Byars v. Railroad, 141 S.W. 926; McNulty v. Railroad, 203 Mo. 475. (2) The doctrine of imputable negligence does not obtain in this State, hence the negligence, if any, of the driver cannot be imputed to the occupant. Byars v. Railroad, 141 S.W. 926; Stotler v. Railroad, 200 Mo. 107; Sluder v. Transit Co., 189 Mo. 107; Profit v. Railroad, 91 Mo.App. 369; Marsh v. Railroad, 104 Mo.App. 577; Baxter v. Transit Co., 103 App. 597; Becke v. Railroad, 102 Mo. 544; Munger v. Sedalia, 66 Mo.App. 629; O'Rourke v. Railroad, 147 Mo. 352; Bailey v. Railroad, 152 Mo. 462; Johnson v. City of St. Joe, 96 Mo.App. 671; Keitel v. Cable Co., 28 Mo.App. 657; Duvall v. Railroad, 65 L. R. A. 722.
--This is a suit for damages accrued to plaintiff through the negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal. Plaintiff is a minor and prosecutes her suit by her father as her next friend duly appointed.
At the time of her injury, plaintiff was about fifteen years of age. She, in company with a younger sister and her father, was en route home from the town of Martinsburg in an open buggy when they were run upon by defendant's train at a public road crossing on its tracks. As a result of the collision, plaintiff's younger sister, Eunice Dudley, was killed, and she (plaintiff) received painful and permanent injuries, to compensate which this suit is prosecuted. The negligence relied upon for a recovery pertains to the failure of defendant to ring the bell or sound the whistle attached to its locomotive engine on approaching the road crossing, in accordance with the statute in that behalf made and provided. The record is replete with evidence tending to sustain the charge of negligence thus laid. It appears plaintiff, in company with her little sister and father, had attended the Old Settlers' Picnic on that day and were traveling on the public road en route home about nine o'clock at night when she received her injuries. At the point of the crossing of the railroad and the public road involved here, the railroad tracks were depressed about five feet in a cut, and the public road approaching the crossing was, of course, depressed as well. Along the side of the railroad and adjacent to the public road, high weeds grew profusely and obstructed the view of those on the public road approaching the railroad crossing. The view of plaintiff's father thus being obstructed, he drove upon the railroad track immediately in front of the train, which, it is said, had omitted to sound the usual warnings of approach by means of bell or whistle. The material facts touching the right of recovery and the matter of defendant's negligence and that pertaining to the contributory negligence of plaintiff's father, who was driving the team, have all been reviewed by this court on a prior occasion, and it will be unnecessary to set them out in detail here. For the purpose of this appeal, it is sufficient to say, that there is nothing in the evidence tending to prove plaintiff guilty of negligence as a matter of law, for she was at most the guest of her father who drove upon the railroad track in front of the passing train. It appears that plaintiff looked and listened but did not observe the train before going upon the track, and defendant's negligence in failing to give the crossing signals is abundantly proven in the case.
The case of Dudley v. Wabash R. Co., 167 Mo.App. 647, 150 S.W. 737, was a suit by plaintiff's father in his own right, under the wrongful death statute, for the death of plaintiff's little sister, Eunice Dudley, which resulted from the same collision. Reference to that case is made for a more extensive statement of the facts pertaining to this one, and, indeed, many of the questions presented on this appeal are concluded by the judgment of the court there. It will be unnecessary to consume time in further review of those matters, and on this appeal consideration will be given to those questions only which were not adjudicated in that case. In the former case we held, after a thorough review of all the evidence, that both the matter of defendant's negligence and that of the contributory negligence of plaintiff's father, which was more important on the right of recovery there than here, were questions for the jury. If plaintiff's father, when suing in his own right for the death of his daughter, Eunice, was not to be denied a recovery as a matter of law on the ground of contributory negligence in driving in front of the approaching train, it is obvious the right of recovery of this plaintiff should not be denied on that score, for his negligence may not be imputed to her in the circumstances of the case, as she was a little girl in his care, or his guest in the carriage as it were, and there is nothing whatever to suggest active negligence on her part. [Stotler v. Chicago & A. R. Co., 200 Mo. 107, 144, 145, 146, 147, 98 S.W. 509.]
Though by no means conclusive, there is some evidence tending to show plaintiff's father saw the light of the train and knew of its approach before driving upon the crossing and that he said he thought he could "make it across" in safety. No one can doubt that the requirements of the statute with respect to the sounding of signals by bell and whistle are for the purpose of warning those approaching the crossing, and, therefore, if one on the public road actually sees the train and knows of its presence, the warning so required is without an office to perform. In such circumstances, no recovery is to be allowed for the mere omission to sound the crossing signals when the injured person saw the train and knew of its approach in ample time to avoid the collision, for the very good reason that the omission to sound the alarm is in no sense the inducing or proximate cause of the injury. In this view defendant requested the court to instruct the jury that if plaintiff's father actually saw the train or the headlight of the engine and knew of its approach and, notwithstanding, attempted to cross the track in front of the same and thus occasioned the collision, then plaintiff is not entitled to recover. This proposition is incorporated in different form in two separate instructions requested by defendant and refused by the court. It is argued the court erred in refusing to so charge the jury, for it is said if plaintiff's father saw and knew of the approach of the train in ample time to have avoided the collision, the failure to sound the crossing signal was remote in the chain of causation, and the negligence of the father alone is the proximate cause of plaintiff's injury, for he had charge of the team and drove upon the track immediately in front of the approaching locomotive. The argument concedes that the negligence of plaintiff's father is not to be imputed to her as a matter of law, but asserts that, as plaintiff derives her cause of action through the omission of defendant to give warning of the approach of the train, then she is not entitled to recover if the jury should find that her father saw the train and knew of its presence in time to avert the injury. It is urged that if plaintiff's father saw the train and, notwithstanding, drove upon the crossing, then his negligence is the sole cause of plaintiff's injury and no liability obtains against defendant for his negligent act. We must reject this argument as unsound in the circumstances of the case, for it omits to reckon with the separate liabilities which attend the acts of individual joint tort-feasors, and omits to reckon, too, with the obligation imposed on defendant by the statute to...
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