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

• Decision Date: 13 August 1925
• Docket Number: No. 3700.,3700.
• Parties: DURBIN et al. v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

275 S.W. 358

DURBIN et al. v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 3700.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Rehearing Denied September 16, 1925.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Robert Durbin and others, by their next friend, Mrs. Ola Durham, against the St. Louis-San Francisco Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and Ward, Reeves & Oliver, of Caruthersville, for appellant.

L. R. Jones, of Kennett, and Abington & Abington, of Poplar Bluff, for respondents.

BRADLEY, J.

Plaintiffs' mother was killed at a crossing, and this action is to recover under section 4217, R. S. 1919. The cause was filed in Dunklin county, but the venue was changed to Butler county, where trial was had to a jury, resulting in a verdict and judgment for plaintiffs in the sum of $7,500. After the usual steps defendant appealed.

The charges of negligence in the petition are: (1) Violation of the 8 mile an hour ordinance of the city of Caruthersville; (2) violation of a common-law duty in approaching and passing over the crossing at a very high rate of speed without giving any warning; and (3) failure to ring the bell or sound the whistle as required by statute. The answer is a general denial and a plea of contributory negligence. The reply is a general denial.

Error is assigned (1) on the refusal of defendant's demurrer at the close of the case; (2) on the admission of evidence; (3) on the instructions; and (4) on the failure of the court to rebuke counsel far plaintiffs for alleged prejudicial remarks during argument.

Mrs. Myrtle Whittington, plaintiffs' mother, and Mrs. Ethel Bowman, W. M. Wallace, and W. A. Barnett, on June 28, 1922, were returning from Memphis, Tenn., to Caruthersville, Mo., in a 7-passenger Hudson touring automobile without curtains, when the collision occurred, resulting in the death of Mrs. Whittington and Wallace. The collision occurred on the Tennessee street crossing in the southern part of the city of Caruthersville. At this point the railroad extends somewhat northeast and southwest, but for present purposes we may say that it runs north and south. Tennessee street runs east and west, we may say, and is the southern boundary of the city at the place of collision. The automobile in which deceased was riding approached Tennessee street from the south on a road immediately west of the railroad, and had been traveling alongside the railroad for about a quarter of a mile before the crossing was reached. The automobile belonged to Wallace and he was driving. Barnett sat in the front seat with Wallace, and to the right of Wallace. Mrs. Whittington sat on the left side, immediately behind Wallace, and Mrs. Bowman sat to the right of Mrs. Whittington and had her head in Mrs. Whittington's lap. Until the automobile was within about 75 or 100 yards of Tennessee street and this crossing, the occupants of the automobile had a clear and unobstructed view up the railroad track north for about a half mile. On the north side of Tennessee street, and 36.3 feet west of the west rail, there was a small building called a barn. About 75 or 100 yards south of Tennessee street and the crossing, there was a mudhole in the road along which the automobile was traveling. Wallace detoured west to pass around this mudhole, and, in doing so, placed the barn between the occupants of the automobile and the view up the track. While the view up the track was obstructed by the barn, Tennessee street was reached and the automobile turned east, traveling about 10 or 12 miles per hour, and the view to the north remained obstructed until the barn was passed. From the barn to the track the view up the track to the north was unobstructed. A train approaching from the north struck the automobile on this crossing and killed Mrs. Whittington and Wallace.

There was substantial evidence on the part of plaintiffs tending to show that defendant's train approached this crossing without giving any warning by bell, whistle, or otherwise, and at a rate of speed estimated at 25 or 30 miles per hour. It is conceded that it was exceeding 8 miles as fixed by the ordinance introduced in evidence. Such is plaintiff's case, so far as concerns negligence on the part of defendant. The jury having found for plaintiffs, the negligence of defendant has been, we may say, established. The contributory negligence of Mrs. Whittington is the question of substance on the demurrer. In Wallace v. St. Louis-San Francisco Ry. Co. (Mo. App.) 257 S. W. 507, we held that Wallace, the driver of the automobile mentioned in the cause before us, and who was killed in the collision, was as a matter of law guilty of negligence in driving upon this crossing. We refer to the facts as stated in the Wallace Case in supplement, so far as applicable, to the facts at bar. The trial court in the present cause instructed that Wallace was guilty of negligence.

Learned counsel for defendant summarize their argument in support of the demurrer to this effect: (1) That Mrs. Whittington's home where she had lived for some months prior to her death was only a few blocks north of this crossing, and about 75 yards east of the track, and that there were no obstructions between her home and the track; (2) that the train was a regular train that passed her house daily at 4:30 m; (3) that the train was on time the day of the collision and that Mrs. Whittington as a matter of law would be presumed to be at the time expecting the train; (4) that Mrs. Whittington traveled alongside the railroad track in approaching this crossing for a quarter of a mile knowing that she was approaching the crossing and that the train was due; (5) that she could see that they were going behind an obstruction that would shut off the driver's view and her view while they traveled about 75 yards or 100 yards; (6) that at the relative speeds most favorable to plaintiffs, to wit, 10 miles for the automobile and 30 miles for the train, when the automobile was 225 feet from the crossing, the train was only 675 feet therefrom; (7) that when the detour was commenced, the train must have been in plain view, and that the detour put the train out of view until the occupants of the automobile passed the barn which was within 36.3 feet of the west rail; (8) that Mrs. Whittington either looked and saw the train before the detour was commenced or did not look; (9) that if she looked and saw the train, she made no mention of the matter to the driver, and, if she did not look, she failed to do her duty; and (10) that in either case she was guilty of negligence as a matter of law.

We might add to the summary that plaintiffs' witness Barnett, who was in the automobile on the fatal drive, stated that, when they turned east along the south side of the barn, they drove in about the middle of the street or roadway, and that defendant offered evidence of an actual test which showed that 42 feet west of the west rail, in the middle of the roadway on Tennessee street, one sitting on the left in the front seat of an automobile of about the same length as the one in which Mrs. Whittington was riding could see up the track from the crossing a distance of 1,287 feet, and that one in the rear seat, as was Mrs. Whittington, could see up the track from the crossing a distance of 259 feet.

When considered in the light of the rule that the weight of the evidence and the credibility of the witnesses are for the jury, we cannot say that all facts predicated in the summary are conclusively established. It is not necessary for us to enter upon an analysis of the evidence for the purpose of attempting to show which of the predicated facts in the summary are not conclusively established.

Defendant did not stand on its demurrer interposed at the close of plaintiffs' case, but introduced evidence tending to establish it was not negligent and that Mrs. Whittington was guilty of contributory negligence. In this situation plaintiffs are entitled to invoke to the aid of their case any favorable evidence from the whole record, whether offered by plaintiffs or defendants. We think that the evidence of Frizzell, defendant's engineer in charge of the engine at the time of the collision, materially aided plaintiffs' case. Frizzell, after testifying as to giving signals at the different crossings from the station in Caruthersville to the crossing in question, testified on direct examination as follows:

"I was giving a signal when the automobile came in my view. I was blowing the whistle, or had started to, for some stock that was on the right Of way just across from the compress. The compress is west of the crossing on which the accident occurred. It covers a space of ground there parallel with the track. I saw some cows there on the right of way. At the time I gave the signal, I had not seen the automobile approaching. That broke the whistle up. That automobile coming out from behind the barn destroyed any further alarm, in order to avoid an accident, if possible. I started to blow a crossing whistle; that is, as an alarm to these cattle, but that automobile coming out from behind the barn disturbed me and broke the whistle up. I was on the first blast and cut it short in order to try to stop, to use my hands for some other purpose. When I saw this car come out from behind the stable, I applied the brakes and shut the throttle off and stopped as quick as I could. I was about 60 feet from the crossing at the time I saw the car come from behind the barn. That was the first notice or knowledge I had that the car was coming out there. At that time I was going between 20 or 25 miles an hour, and the car, I judge, was going about as fast as I was. The car was going at a right angle from me; he was approaching this crossing in question. I stop the engine by means of an air brake system, controlled by an engineer's valve in the cab at his convenience,...