Flint v. Chicago, B. & Q. R. Co.

• Citation: 207 S.W.2d 474,357 Mo. 215
• Decision Date: 08 December 1947
• Docket Number: 40282
• Parties: J. W. Flint v. Chicago, Burlington & Quincy Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

207 S.W.2d 474

357 Mo. 215

J. W. Flint v. Chicago, Burlington & Quincy Railroad Company, a Corporation, Appellant

No. 40282

Supreme Court of Missouri

December 8, 1947

Rehearing Denied January 12, 1948.

Appeal from Randolph Circuit Court; Hon. Aubrey R. Hammett Judge.

Reversed and remanded.

J. A Lydick and Hunter, Chamier & Chamier for appellant.

(1) The crossing in question was not a public crossing. It was a private crossing in the country, formed by a lane running from a county road through a field, and then across the tracks to cultivated fields. The statute requiring the giving of signals at public crossings, does not apply to private crossings. Degonia v. Ry. Co., 224 Mo. 564, 123 S.W 807; Burger v. Mo. Pac., 112 Mo. 238, 20 S.W. 439; Maxy v. Mo. Pac., 113 Mo. 1, 20 S.W. 654; Alexander v. Mo. Pac., 178 Mo.App. 184, 165 S.W 1156; Cornett v. Railroad Co., 184 Mo.App. 463, 171 S.W. 15; Bryant v. Ry. Co., 181 Mo.App. 189, 168 S.W. 228; Fowler v. M., K. & T.R. Co., 229 Mo.App. 561, 84 S.W.2d 194. (2) A railroad is under a common law duty to exercise ordinary care -- that is, to give a crossing signal commensurate with the danger of the approach of a train to a private crossing: If weeds, grass, or other objects obstruct the view of the traveler, and make the crossing more than ordinarily dangerous and hazardous. Wright v. St. L. & S.F.R. Co., 327 Mo. 557, 37 S.W.2d 591; Boland v. Railroad Co., 284 S.W. 141; Fowler v. M., K. & T. Ry. Co., 229 Mo.App. 561, 84 S.W.2d 194; State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W.2d 46; 52 C.J. 229; 44 Am. Jur. 760. (3) Or if at the private crossing people frequently travel or pass over it in such numbers that their presence should be anticipated, or the company is aware of such frequent use. Herrell v. St. Louis-S. F. Ry. Co., 322 Mo. 551, 18 S.W.2d 481; Ayers v. Wabash R. Co., 190 Mo. 228, 88 S.W. 608; Kerr v. Bush, 198 Mo.App. 607, 200 S.W. 672; 52 C.J. 230; 44 Am. Jur. 760; Favre v. L. & N.R. Co., 180 Miss. 843, 178 So. 327; Boland v. St. Louis-S.F. Ry. Co., 284 S.W. 141. (4) This case does not fall within this common law rule; because the deceased's view was not so obstructed, nor was there such user, nor proof of defendant's knowledge of such obstructions or user, so as to place on defendant such common law duty. (Cases cited under (2) and (3).) (5) The deceased was a boy about 14 years old, who was riding as a guest in the truck when the collision in question occurred. It was his duty to exercise such degree of care, as is ordinarily exercised by children of the same age, capacity, discretion, knowledge, and experience, under like or similar circumstances. McGee v. Wabash R. Co., 214 Mo. 530, 114 S.W. 33; Walker v. Wabash R. Co., 193 Mo. 453, 92 S.W. 83; Payne v. Chicago & A.R. Co., 136 Mo. 562, 38 S.W. 308; State ex rel. Kansas City L. & P. Co. v. Trimble, 315 Mo. 32, 285 S.W. 455; Turner v. City of Moberly, 224 Mo.App. 683, 26 S.W.2d 997; Van Alst v. Kansas City, 186 S.W.2d 762; Bussey v. Don, 259 S.W. 971; 2 Blashfield, Cyclopedia of Automobile Law and Practice, sec. 1522; 38 Am. Jur. 885. (6) The occupant of a vehicle, riding as a guest, is obligated to exercise such care, as an ordinarily prudent person riding with another, would exercise for his own safety under the same or similar circumstances; and if he fails to exercise such care, and such failure concurs with the actionable negligence of another, and contributes to his injury as a proximate cause, he is guilty of contributory negligence. Nahorski v. St. Louis Electric Term. Co., 310 Mo. 227, 274 S.W. 1025; Lawler v. Montgomery, 217 S.W. 856; Burton v. Pryor, 198 S.W. 1117; 45 C.J. 1016. (7) It is the guest's duty to exercise ordinary care, including a reasonable use of his faculities of sight, hearing, and intelligence, to observe and appreciate danger of threatened danger of injuries; and if he fails to do so, and such failure directly contributes to the injuries complained of, as a proximate cause, he is guilty of contributory negligence. Lord v. Delano, 188 S.W. 93; Holden v. Railroad Co., 177 Mo. 456, 76 S.W. 973; Burton v. Pryor, 198 S.W. 1117; Fechley v. Springfield Tract. Co., 119 Mo.App. 358, 96 S.W. 421; Nahorski v. St. Louis Electric Term. R. Co., 310 Mo. 227, 274 S.W. 1025; Chapman v. Mo. Pac. R. Co., 217 Mo.App. 312, 269 S.W. 688; 45 C.J. 1017. (8) The deceased looked to the east (the direction from which the train was approaching), and advised the driver that there was no train coming, that the way was clear. The deceased, thereby participated in the operation of the truck, induced, authorized, and sanctioned the driving of it upon the crossing, and assumed to give directions, and took upon himself a duty not imposed by law. Therefore, the general rule as to a guest does not apply in this case. Landrum v. St. Louis, I.M. & S. Ry. Co., 178 S.W. 273; Nahorski v. St. Louis Electric Term. R. Co., 310 Mo. 227, 274 S.W. 1025. (9) Having assumed to direct the driver in driving the truck, the deceased was charged with exercising the highest degree of care, and that duty continued upon him until the truck passed over the crossing. Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185; Borrson v. Mo., K. & T.R. Co., 351 Mo. 229, 172 S.W.2d 835; Jurgens v. Thompson, 350 Mo. 914, 169 S.W.2d 353; Dowler v. Kurn, 119 S.W.2d 852; State ex rel. K.C. Southern R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915. (10) The driver of the truck was required to use the highest degree of care, and his failure to do so makes him guilty of contributory negligence as a matter of law. Sec. 8383, R.S. 1939; State ex rel. K.C. Southern R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Dowler v. Kurn, 119 S.W.2d 852; Rischeck v. Lowden, 347 Mo. 426, 147 S.W.2d 650; Willig v. C., B. & Q.R. Co., 345 Mo. 705, 137 S.W.2d 430; Henderson v. St. L. & S.F. Ry. Co., 314 Mo. 414, 284 S.W. 788. (11) The negligence of the driver was imputed to deceased, and bars recovery by plaintiff; because deceased actively participated in, gave suggestions and directions concerning, had and asserted control over the management and operation of the truck; at the suggestion of the driver offered to and did, for him look for the train; and deceased expressly sanctioned, authorized and influenced the conduct of the driver and was responsible for the driving of the truck on the crossing. Landrum v. St. Louis, I.M. & S. Ry. Co., 178 S.W. 273; Trower v. M.-K.-T.R. Co., 353 Mo. 757, 14 S.W.2d 428; Lynch v. M.-K.-T.R. Co., 333 Mo. 89, 61 S.W.2d 918; Herrell v. St. Louis-S. F.R. Co., 324 Mo. 38, 23 S.W.2d 102; Smith v. St. Louis-S. F.R. Co., 321 Mo. 105, 9 S.W.2d 939. (12) The court erred in admitting in evidence, over the objections and exceptions of appellant, the depositions taken by plaintiff, of A. W. Pennock and J. A. Brooks, fireman and engineer respectively on appellant's train, both of whom were present in court, not parties to the suit, and not called as witnesses. A deposition cannot be read in evidence when the deponent is present in court except (1) to impeach the testimony of such witness, or (2) as an admission against interest. Winegar v. Chicago, B. & Q.R. Co., 163 S.W.2d 357; Donet v. Prudential Ins. Co. of Am., 23 S.W.2d 1104; Veset v. S.S. Kresge Co., 213 S.W. 165; Barber Asphalt Paving Co. v. Ullman, 137 Mo. 543, 38 S.W. 458; Schmitz v. St. Louis, I.M. & S. Ry. Co., 119 Mo. 256, 24 S.W. 472; Sec. 1944, R.S. 1939; 26 C.J.S. 930, sec. 92. (13) The statements contained in the depositions, could not be held as binding upon the appellant as admissions against interest, because the depositions were taken at the instance of plaintiff, long after the accident. They were not in regard to a pending matter, were not within the scope of the authority of such employees, and were taken by plaintiff and could not be considered admissions. Winegar v. Chicago, B. & Q.R. Co., 163 S.W.2d 357; Murray v. DeLuxe Motor Stages of Ill., 133 S.W.2d 1074; St. Charles Sav. Bank v. Denker, 275 Mo. 607, 205 S.W. 208; Henry v. First Natl. Bank of K.C., 232 Mo.App. 1071, 115 S.W.2d 121; Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W.2d 947; Redmon v. Metropolitan St. Ry. Co., 185 Mo. 1, 84 S.W. 26; Meyer v. Dubinsky Realty Co., 133 S.W.2d 1106; 31 C.J.S. 1113, sec. 343. (14) The depositions were not competent for impeachment purposes, because neither of such deponents had testified. Cases under (12). (15) To make a prima facie case under the humanitarian doctrine, the burden was on the plaintiff to show that the deceased was in a position of imminent peril; that the defendant had notice thereof; that the defendant, after receiving such notice, could by stopping the train or slackening its speed have averted the collision, with the means at hand without injury to its train, passengers, or employees; that it failed to exercise ordinary care in so doing; and that by reason thereof, the deceased was killed. This, the plaintiff failed to do, therefore, such motion should have been sustained. Hendrick v. Kurn, 352 Mo. 848, 179 S.W.2d 717; Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798; Banks v. Morris & Co., 302 Mo. 254, 257 S.W.2d 482; Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Swain v. Anders, 235 Mo.App. 125, 140 S.W.2d 730; Bauer v. Wood, 236 Mo.App. 266, 154 S.W.2d 356. (16) There was no competent evidence as to the location of the train when the truck entered the danger zone. (17) The enginemen were not under any duty to stop or slacken the speed of the train, until the truck entered the danger zone. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Trower v. M.-K.-T.R. Co., 353 Mo. 757, 184 S.W.2d 428; Neill v. Alton R. Co., 113 S.W.2d 1073. (18) The truck entered the danger zone: either when it...