Gayle v. Thompson

• Decision Date: 13 January 1943
• Docket Number: No. 6367.,6367.
• Citation: 167 S.W.2d 954
• Parties: GAYLE et ux. v. THOMPSON.
• Court: Missouri Court of Appeals

167 S.W.2d 954

GAYLE et ux. v. THOMPSON.

No. 6367.

Springfield Court of Appeals. Missouri.

January 13, 1943.

Rehearing Denied February 2, 1943.

Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.

"Not to be published in State Reports."

Action by F. E. Gayle and another as surviving parents of Robert Gayle, deceased, against Guy A. Thompson, as trustee in charge of the Missouri-Pacific Railroad Company, a railroad corporation, for wrongful death. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Thomas J. Cole, of St. Louis, and Spradling & Spradling, of Cape Girardeau, for appellant.

Phillips & Phillips and Tedrick & Tedrick, all of Poplar Bluff, for respondents.

SMITH, Judge.

This is an action for damages for the wrongful death of Robert Gayle, a minor, which occurred at Neelyville, Missouri, on the 2nd day of November, 1940. The suit was instituted by the parents of the deceased in the Circuit Court of Butler County on the 27th day of February, 1941.

Defendant was charged in the petition with the following acts of negligence: (1) failure and neglect to sound the whistle and ring the bell; (2) the running of said train through Neelyville at a dangerous and reckless rate of speed; (3) the operating of said train through Neelyville without having a headlight on the engine; (4) the running of said train through Neelyville at a greater speed than that provided by ordinance, that is to say 10 miles per hour; (5) the operation of said train at a speed in which the trainmen were unable to control it; and (6) the failure to maintain a watchman, gate, swinging arm, warning light, or other adequate warning. The answer of the defendant was, (1) a general denial; (2) a plea of contributory negligence; (3) the knowledge of deceased of the crossing, speed of the trains, and the fact that they passed each other at Neelyville frequently; and (4) that the death of the deceased was caused by his sole negligence.

The replication was a general denial.

The cause was submitted to the jury on three grounds of negligence, as follows: (1) high, reckless and dangerous rate of speed; (2) obstructions, that is to say, the occupying of the passing track with train No. 8, which prevented deceased from seeing train No. 25 traveling south in the opposite direction; and (3) the failure to sound the whistle and bell.

The cause was tried in Butler County on the 2nd and 3rd days of February, 1942, and the trial thereof resulted in a verdict for plaintiffs in the sum of $2,000, after which the cause was appealed to this court.

The case is presented to us under four assignments of error, which we shall consider in the order presented. The first two of these assignments complain of error in the court's refusal to give demurrers to the evidence offered at the close of plaintiff's case and again at the close of all the evidence in the case. This, of course, requires a consideration of the facts as shown by the evidence, and in passing on a demurrer to the evidence, plaintiff's evidence and all reasonable deductions therefrom are taken as true, and defendant's evidence to the contrary is disregarded. Fitzpatrick v. K. C. Southern Ry. Co., 347 Mo. 57, 146 S.W.2d 560, 566.

The evidence offered by the plaintiff shows that this accident occurred at Neelyville on November 2, 1940, between 6:30 and 7:00 p. m. and that it was dark at the time. The deceased was 19 years old and was at home on a week-end vacation from school at Cape Girardeau Teachers College. He had driven his father's car from his home about a quarter of a mile west of Neelyville and had driven across the railroad tracks on Hart Street crossing to a building south of Hart Street on the east side of the railroad. He turned around and started back towards his home and traveled north to the crossing.

While he was south of the crossing on the east side of the railroad tracks, defendant's northbound passenger train approached the Hart crossing from the south at a rate of speed of ten to fifteen miles per hour. The Gayle boy stopped his car facing west at Hart Street crossing for this northbound train to pass. When this train had passed over the Hart Street crossing and the south end of the train was about even with the depot, which was 215 feet north of the street crossing, the boy started his car in order to cross the railroad tracks. He was driving very slowly, some of the witnesses said about four miles per hour. He crossed the track upon which the northbound train had just passed from in front of him, and went on west to the main railroad track and was crossing it, when a passenger train going south struck his car and killed him. The testimony is, that this southbound train was traveling about 70 miles per hour through the town of Neelyville, and that this road crossing the track was much used by the public. Neelyville was divided by the tracks with some of its business houses and homes on the east side and some on the west side of the track and that Hart Street or road was greatly traveled. The engineer on the southbound train said he was familiar with that crossing, and said the train was traveling "somewhere between 60, 65 or 70 miles per hour." He said that he dimmed the headlights when he met the northbound train but later turned them on bright. Several witnesses testified there were no lights at all on the front of the engine, and others said they did not see or notice any lights. Several other witnesses said there was no bell rung or whistle sounded as the southbound train approached the crossing; others said they did not notice any whistle or bell. There were witnesses who said the lights were shining brightly and that the whistle was sounded and the bell was rung. We think and hold that this testimony made it a question of fact for the jury as to whether proper warnings were given, and that the trial court did not err in overruling the demurrers, unless they should have been sustained on the question of contributory negligence, which we shall discuss further. Busker v. New York Cent. R. Co. Mo.App., 149 S.W. 2d 449, loc.cit. 452, and cases there cited.

Was the deceased guilty of contributory negligence as a matter of law? The evidence shows that the northbound train had passed the crossing and that the rear end was about even with the station when the boy started across. The evidence shows that he was about fifteen feet from the crossing track when he started, and that he traveled that fifteen feet and across the siding track, and across the space between the side track and the main track and that he was crossing the main track when he was struck. Some said he was traveling about four miles per hour. There is no evidence that he did not look or listen for another train. There was evidence that the bell did not ring and that the whistle was not sounded, or that the headlights were not shining and that it was dark and that the lights were not gleaming on the tracks in front of him. There was evidence that the boy was familiar with the tracks and the time for the regular running of the train and that the southbound train was running fifteen minutes late. Since some of this evidence shows that the lights were not shining and gleaming on the rails, and that the bell was not ringing, nor the whistle sounding, would it have been negligence on the part of the boy to assume that the train had already passed south? If it had run on time and going at 70 miles per hour, the train would have been at least 18 miles south of the crossing at the time the boy reached the crossing. Under these circumstances and inferences drawn from the evidence offered in behalf of the plaintiffs, could the court declare as a matter of law that the boy was guilty of contributory negligence?

The appellant in this case depends largely on the case of Henderson v. St. L. & San Francisco Ry. Co., 248 S.W. 987, an opinion by this court, later passed on by the Supreme Court, 284 S.W. 788, 792. The facts in this case are similar in some respects, but are largely...