Farris v. Thompson

• Decision Date: 03 February 1943
• Docket Number: No. 6398.,6398.
• Citation: 168 S.W.2d 439
• Parties: FARRIS v. THOMPSON.
• Court: Missouri Court of Appeals

168 S.W.2d 439

FARRIS v. THOMPSON.

No. 6398.

Springfield Court of Appeals. Missouri.

February 3, 1943.

Appeal from Circuit Court, Newton County; Emory Smith, Judge.

"Not to be published in State Reports."

Action by Mrs. R. C. Farris against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, to recover damages for the wrongful death of plaintiff's husband, Dr. R. C. Farris. Judgment for plaintiff, and defendant appeals.

Reversed.

Thos. J. Cole, of St. Louis, Leo H. Johnson, of Neosho, and McReynolds & Flanigan, of Carthage, for appellant.

H. A. Gardner, of Monett, and Frank Mattes, of Jefferson City, for respondent.

SMITH, Judge.

This is an action brought by the widow of Dr. R. C. Farris against Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a corporation, for the death of Dr. Farris. The case was first tried February 9, 1942, resulting in a failure of the jury to agree upon a verdict. The second trial started on June 9, 1942, and on June 10, 1942, the jury returned a verdict for plaintiff for $2,250 and judgment for said amount was entered. Motion for new trial was filed and overruled, and an appeal was had to this court.

The amended petition in this case alleged that Guy A. Thompson was the duly appointed, qualified and acting trustee for the Missouri Pacific Railroad Company, and was operating a passenger train between Kansas City and St. Louis and which train passed through the town of Clarksburg in Moniteau County, Missouri, and that the line of railroad runs in a general east and west direction through the town of Clarksburg, that at a point approximately 300 feet west of the depot in said town the railroad track is crossed by a north and south public street or highway, much used by the public, and is known as West Street.

A part of the amended petition is as follows:

"That a sidewalk constructed along the west side of said highway leads over and across said railroad track and that said public crossing, as well as said sidewalk, had been for many years prior to the death of deceased extensively used by the citizens in and around the town of Clarksburg, and by the public generally, as a passageway over and across said defendant's said railroad track, all of which facts were well-known, or by the exercise of ordinary care could have been known, by the agents, servants and employees of the defendant, operating its trains over said crossing at and prior to the time deceased was killed as herein alleged.

"Plaintiff states that at approximately 11 o'clock on the morning of February 18th, 1940, that Dr. Ruben Copus Farris, while walking south along said sidewalk and passing over defendant's said railroad track at said crossing and when he reached the said main line track, was struck and instantly killed by an east-bound passenger train, then and there being run and operated by the agents, servants and employees of the defendant over said crossing, and;

"Plaintiff alleges that the death of the said Dr. Ruben Copus Farris was directly caused and occasioned by the carelessness and negligence of the defendant herein, through his agents, servants, and employees operating the said train and acting within the due course and scope of their employment, at the time and place and under the circumstances then and there existing, in one or the other of the particular manners hereinafter set out:

"(1) That they ran and operated said train at a high, reckless, dangerous, hazardous and excessive rate of speed as the same approached and passed over the said public crossing, or

"(2) They saw, or, by the exercise of ordinary care could have seen, the deceased in a position of imminent peril of being struck and killed by the aforesaid locomotive engine and passenger train and oblivious thereto, in time thereafter by the exercise of ordinary care and with the means and appliances at hand and with safety to all members of the train crew, passengers and freight, at the time and place, to have timely warned by alarm blasts of the whistle, plaintiff's deceased husband of the proximity of the danger thereof and thereby to have prevented the plaintiff's husband from being killed, but that they negligently failed so to do.

"Plaintiff further states that she does not definitely know which of the aforesaid acts of negligence of the defendant directly caused the death of her husband, but that either the one or the other, but not both, is true, and therefore plaintiff is entitled to recover.

"Plaintiff states that the said Ruben Copus Farris was at the time of his death approximately 77 years of age, left this plaintiff, Mrs. R. C. Farris, his widow, who was dependent upon her said husband for support and maintenance, and that she now prosecutes this suit as the widow of said Ruben Copus Farris, and that by reason of his death she has lost all such support and maintenance, and has been damaged and is entitled to recover from the defendant the sum of $10,000.00, for which amount, together with all costs of this suit, she prays judgment."

The answer to the amended petition admits that Guy A. Thompson is the trustee of the Railroad Corporation, and in charge of all the lines of railroad of said company including the one mentioned in plaintiff's petition. We quote the remainder of the answer as follows:

"Further answering, this defendant as such trustee states that the engine which struck and killed Ruben Copus Farris was equipped with a bell and steam whistle, and that said bell was being rung and the said whistle was being blown as it approached the crossing at which said Ruben Copus Farris was struck and killed, and that said Ruben Copus Farris had an unobstructed view of said approaching engine and train from a position of safety before proceeding to cross the tracks upon which said train was approaching, and that the death of the said Ruben Copus Farris was caused and contributed to by his own negligence in stepping into and remaining in the path of the defendant's engine and train when he heard or saw, or by the exercise of ordinary care for his own safety he could have seen or heard defendant's approaching train in time to have avoided being struck and killed.

"Further answering, this defendant, as such trustee, states that the engine and train which struck and killed Ruben Copus Farris was equipped with standard equipment brakes in good repair and working order, but that the operators of said engine and train did not discover, and by the exercise of ordinary care, could not have discovered, Ruben Copus Farris in a position of imminent peril in sufficient time to have avoided striking him with the means and devices available and at their disposal, and that the negligence of said Ruben Copus Farris in stepping into the path of defendant's engine and train and into a position of imminent peril, although by the exercise of ordinary care and diligence for his own safety on his part, he saw or could have seen and heard or could have heard the train's approach, was the sole cause of his being struck and killed.

"Wherefore, having fully answered said petition of plaintiff, this defendant prays that he may be discharged therefrom with his costs."

The defendant filed a reply to the answer denying each and every allegation of new matter therein contained, and denying specifically that the deceased, Dr. Farris, was guilty of negligence which contributed to his death.

As said above, after judgment an appeal was had to this court, and the case is presented to us under three assignments of error. The first of these is that the court erred in refusing the demurrers requested at the close of plaintiff's evidence and again at the close of all the evidence.

This requires a consideration of the facts in the case, and the law applicable to such facts.

The first witness for the plaintiff was Frank Winebrenner, who testified that he had lived in and around Clarksburg all his life; that he worked at the Farmer's Elevator. The railroad tracks run east and west through the town; it divides the town pretty well into a north and south side, both schools are on the south side and the church and business block on the north side; there are three railroad tracks through the town, a central main track upon which the train was running, a south track sided to the elevator, where this witness worked, and a north track sided to the stockyards. There is a road between the tracks and the business block and this is known as State Street and runs parallel with the railroad track. There is a street running north and south crossing the railroad tracks and known as West Street. Along the west side of this street is a concrete or asphalt walk, which crosses the railroad tracks, and it was upon this walk that Dr. Farris was supposed to be traveling south. The depot was about 300 feet to the east of this crossing upon which Dr. Farris was killed on February 18 1940. It was snowing at the time he was killed and the wind was blowing from the west, the general direction from which the train was coming. This witness said he lived on State Street two blocks (about 1,000 feet) from the street upon which Dr. Farris was killed. He drove in his car from his home up town towards his place of work and the train passed him about the center of the first block, about 200 feet from his home, up towards West Street, and that he did not hear the whistle blow or the bell ring. The windows of his car were all up but one, it had a piece of glass broken out on the left hand side, and the train was passing on his right hand side, somewhere near seventy-five or eighty feet south of him. He testified that there are two distinct roads crossing the railroad; West Street road, upon which Dr. Farris was walking south, and another road known as State Highway M. The elevator building at which he was working separates these two roads. There was a wigwag signal three or four feet from the main line and in the space between the State Highway M and...