Garbee v. St. Louis-San Francisco Railway Company

• Decision Date: 07 January 1927
• Parties: PEARLE P. GARBEE, ADMR., RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT. *
• Court: Missouri Court of Appeals

290 S.W. 655

220 Mo.App. 1245

PEARLE P. GARBEE, ADMR., RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT. *

Court of Appeals of Missouri, Springfield

January 7, 1927

Appeal from the Circuit Court of Laclede County.--Hon. W. E. Barton Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

E. T Miller, Frank H. Farris and Mann & Mann for appellant.

(1) The testimony failed to show that the road which intersects defendant's right of way at the point of the accident was a traveled public road within the meaning of the statute (section 9943) requiring the defendant to give the statutory signals of the approach of its train to said crossing. R. S 1919, secs. 10625-10626. Plaintiff's Exhibit A, which was the alleged order of the county court of Christian county establishing said road, was made without any jurisdiction of the court to make it, and the said judgment and order is void in that it fails to recite the giving of the notice which alone could confer jurisdiction upon the court to make such order, and without which the order is void. R. S. 1919, sec. 10626; Maxey v. Railway, 113 Mo. 1; Hodges v. Railway, 71 Mo. 50; Bauer v. Railway, 69 Mo. 219; State ex rel. v. Railway, 19 Mo.App. 104; Parish v. Railroad, 63 Mo. 284. (2) The plaintiff sues as the administrator of Lewis W. Hendricks, deceased. There is no allegation in the petition that the deceased was a minor. The petition alleged that the deceased had a father and mother. It does not allege that he was a minor of tender years, and no other fact or circumstance is alleged in the petition that will preclude the inference that he might have left a widow or children, and in this particular the petition is fatally defective. Case v. Cordell, 103 Mo.App. 477-479. And the questions may be raised for the first time in this court. Elliott v. Water, L. & P. Co., 245 S.W. 568; Barker v. Railway, 91 Mo. 86. The petition is fatally defective for the further reason because it fails to allege that the deceased was survived by anyone competent to take under him under the laws of descent, and no judgment for damages in favor of his administrator in an action brought under section 4217, formerly section 5425, Revised Statutes 1919, can stand. Kirk v. Wabash, 265 Mo. 341; Troll v. Gas Co., 182 Mo.App. 600; Smelser v. Railway, 262 Mo. 25; Colvin v. Railroad, 200 S.W. 715; Titus v. Delano, 210 S.W. 44; Betz v. Railway, 284 S.W. 455-457. In any event, without regard to the adequacy or inadequacy of the allegations of the petition, and without regard to the evidence whether or not plaintiff's decedent left any next of kin surviving him was an issuable fact, and plaintiff's instruction P. G. 1 authorized a verdict by the jury without any finding on the point that plaintiff's decedent left surviving him anyone who would take from him under the laws of descent, and plaintiff's instruction No. 1 is erroneous for that reason. All that said instruction No. 1 required of the jury was to find that the plaintiff's decedent left neither father nor mother, brother or sister, natural born or adopted, surviving him. Titus v. Delano, 210 S.W. 44. (3) There is no presumption of law that the father and mother of plaintiff's decedent did not survive him. Plaintiff, in his petition, alleges that all three were killed at the same time. The burden of establishing that fact was upon the plaintiff, and he introduced no evidence upon that question. 17 C. J., page 1179, sec. 32; Casualty Co. v. Kacer, 169 Mo. 301, 311, and cases cited. (4) Defendant's peremptory instruction should have been given, because, if, as we admit for the sake of argument that the crossing in question was a traveled public road, there was no substantial evidence of the failure of defendant's trainmen to give the statutory signals with the whistle and bell on the engine. Only one of plaintiff's witnesses testifies to any failure to give the signals. That is William Blubaum, who testifies to hearing no signal. This negative testimony that he did not hear the signal should, as a matter of law, be considered as against the great mass of evidence introduced by appellant that the proper signals were given. Armstrong v. Railroad, 195 Mo.App. 86-87; McNeil v. Railway, 182 S.W. 762; Williamson v. Railway, 139 Mo.App. 481-489-490; Quimby v. Traction Co., 180 Mo.App. 296; Sanders v. Railroad, 147 Mo. 424; Bennett v. Railroad, 122 Mo.App. 709; Shaw v. Railroad, 104 Mo. 657; Rashall v. Railroad, 249 Mo. 509, 522. This witness Blubaum, who testified that he heard no whistle or bell, testifies first that he was "seventy-five rods from the crossing when the train passed me." Then he says, "seventy-five yards west of the crossing the train passed me. I didn't hear the whistle blow nor the bell ringing. There wasn't no whistle." On cross-examination, he says that on his way from church he stopped at Mr. Amsler's house; that Amsler lived about a mile from this crossing; that he left this house and come a little better than a quarter when he heard the train pass; that he had gone about a quarter of a mile and thought he heard an automobile behind him, and it turned out to be a passenger train. "Amsler's house is about a mile from the crossing. I had gone about a quarter of a mile when the train passed me." Several other witnesses testify to Amsler's house being a mile from the crossing. The physical facts place this witness three-quarters of a mile from the crossing when the train passed him and half a mile from where it was the duty of the train to whistle, on plaintiff's theory. Under these circumstances his evidence furnishes no substantial proof and should be ignored by the court. Roseman v. Railway, 251 S.W. 104, 105; Hook v. Mo. Pac., 162 Mo. 580; Nugent v. Mill Co., 131 Mo. 253; Payne v. C. & A., 136 Mo. 583; Petty v. Railroad, 179 Mo. 677; Champayne v. Hamey, 189 Mo. 726; Sexton v. Railway, 245 Mo. 272; Dumphy v. Stock Yards, 118 Mo.App. 522; Davidson v. Frisco, 164 Mo.App. 713. The giving of plaintiff's instruction number P. G. 2, submitting the case to the jury under the last-chance doctrine, was erroneous. There is no evidence upon which to submit this case to the jury upon that theory. Stark v. Lusk, 194 Mo.App. 250; Whitesides v. Railroad, 186 Mo.App. 608; King v. Wabash, 211 Mo. 1; Kreis v. Railroad, 148 Mo. 328; Van Bach v. Railroad, 171 Mo. 338; Tanner v. Railroad, 161 Mo. 497; Boyd v. Railroad, 105 Mo. 380; Lennon v. Railroad, 198 Mo. 514. Plaintiff cannot recover under the last-chance doctrine in any case where the evidence shows that it was merely possible for the servants of defendant to have averted the injury. Browning v. Railroad, 106 Mo.App. 729. The specific act of negligence in the petition charged against defendant's servants on its engine in failing to avert the collision is that they saw the deceased, or by the exercise of reasonable care and diligence on their part could have seen the deceased, in a place of great peril and danger from the approach of said train, in time to have stopped said train or so greatly reduced the speed thereof, without danger either to themselves or to the passengers on said train, as to have given deceased time to have passed out of the zone of danger and peril; and the collision with the car in which the deceased was traveling and the injury could therefore have been avoided. There is no allegation in the petition, or claim asserted, that the engineer could have avoided the injury by sounding the whistle and giving deceased opportunity to get out of or keep out of danger. The Supreme Court of Missouri has always adhered to the doctrine, in the application of the last-chance doctrine to crossing cases, that not only must there be evidence showing sufficient time elapsed within which the accident could have been avoided, by the means charged in the petition taken to avert the collision, but the Supreme Court has always gone further and held that no jury question is presented unless there is evidence from which a jury could find with reasonable certainty that the train could have been stopped, or could have been slowed down, the time and all the circumstances considered, so as to have averted the accident, and it has further always held that no case is made for the jury if these facts are left in the realm of speculation. Beal v. Railroad, 256 S.W. 733, 735; Beacker v. Railroad, 240 Mo. 507, 518, 519; Hamilton v. Railroad, 250 Mo. 714, 722; Degonia v. Railroad, 224 Mo. 564, 595; Markowitz v. Railroad, 186 Mo. 350, 359; McGee v. Railroad, 214 Mo. 530; Sullivan v. Railroad, 271 S.W. 983. "Why speculate as to one or two seconds in time? . . . Engineers are human beings and we cannot exact of them to act instantly and in the most intelligent way in cases of emergency." Underwood v. Railway, 182 Mo.App. 252, 273; McGee v. Railroad, 214 Mo. 530, 543; Degonia v. Railroad, 224 Mo. 596; Burge v. Railway, 244 Mo. 101. Plaintiff was not entitled to have the issue of last chance submitted to the jury, because the allegations in his petition in that respect are: "They (referring to the servants of defendant) saw the deceased, or by the exercise of reasonable care and diligence upon their part could have seen the deceased, in a place of great peril and danger from the approach of said train, in time . . .," etc. There is no allegation that the deceased or the driver of the automobile was oblivious of the approach of the train or oblivious of their peril. Obliviousness to peril must be pleaded and proved in order to invoke the last clear chance doctrine. Knapp v. Dunham, 195 S.W. 1062; Kamoss v. Railway, 202 S.W. 434; Haynes v. Railway, 203 S.W. 631.

L. Claud Mayfield, Hamlin, Hamlin & Hamlin and C. W. Hamlin for respondent.

(1) Defendant tried this case below on the theory that the present plaintiff...