Grace v. Smith, 44583
| Decision Date | 11 April 1955 |
| Docket Number | No. 44583,44583 |
| Citation | 365 Mo. 147,277 S.W.2d 503 |
| Parties | Leo GRACE, Administrator of the Estate of Oda Grace, Deceased, Respondent, v. L. A. SMITH, C. T. Schmidt and the Wabash Railroad Company, a Corporation, Defendants, Wabash Railroad Company, a Corporation, Appellant. |
| Court | Missouri Supreme Court |
Boyle G. Clark, Robert C. Smith, Jr., Raymond C. Lewis, Jr., Columbia, for appellant. J. H. Miller, St. Louis, Missouri, Clark & Becker, Columbia, of counsel.
Ralph L. Alexander, R. E. Ausmus, Columbia, for respondent. Alexander, Harris & Welliver, Columbia, of counsel.
Plaintiff, administrator of the estate of Oda Grace, deceased, sued defendants, Wabash Railroad Company, a corporation, L. A. Smith, its engineer, and C. T. Schmidt, its fireman, for the wrongful death of Mrs. Grace, when a car in which she was riding was struck by a Wabash train at a public crossing in the City of Sturgeon, Missouri. The jury discharged Smith and Schmidt but found a verdict against the Wabash in the amount of $5,000, and judgment was so entered.
The Wabash appealed to the Kansas City Court of Appeals, which affirmed the judgment of the trial court. See Grace v. Smith, 270 S.W.2d 79. Thereafter, upon application of said defendant, the cause was transferred to this court under the provisions of Art. V, Sec. 10, of the Constitution of Missouri, V.A.M.S. In its brief filed in the Court of Appeals and in a supplemental brief filed here, defendant asserts error: (1) in the overruling of its motion for judgment notwithstanding the verdict upon grounds, (a) defendant cannot be held liable for a tort committed by its agent when the agent was exonerated of the tort and especially is this true, appellant says, because the case was not pleaded, tried or submitted on such a theory, (b) defendant was under no duty to maintain a light in a wigwag signalling device installed at the crossing upon which plaintiff's intestate was killed or to keep an electric light bulb therein burning, (c) plaintiff's intestate was guilty of contributory negligence as a matter of law, and (d) the sole cause of plaintiff's intestate's death was the negligence of the driver of the automobile in which she was riding when struck by defendant's train; and (2) error in the giving and refusal of certain instructions.
Substantial portions of the opinion of the Kansas City Court of Appeals will be used without quotation marks.
After alleging various facts, with which we are not here especially concerned, plaintiff charged:
'That the said collision and the fatal injury and death of plaintiff's intestate were directly and proximately caused and occasioned by the carelessness and negligence of the defendants, L. A. Smith and C. T. Schmidt and Wabash Railroad Company, its agents, servants and employees in the following particulars, to-wit:
'(A) That the defendants carelessly and negligently operated the said engine and train of cars at a rate of speed which, under the circumstances, was high, dangerous and excessive, to-wit: 75 miles per hour.
'(e) That the defendants failed to have and provide a watchman at said crossing and failed to have and provide a mechanical device thereat that would give sufficient warning of the approach of said engine and train of cars.
* * *
* * *
'(I) That the defendants carelessly and negligently attempted to cross said Ogden Street when said defendants knew or should have known in the exercise of the ordinary degree of care that the signal light on said Ogden Street crossing was not functioning.'
Defendant maintains a line of railroad through the City of Sturgeon. It runs in an east-west direction and crosses Ogden Street, the main street of Sturgeon, near the depot. It is a north-south street. There are three sets of tracks at this crossing, the furthest south is the house track, the set next, to the north, is the passing track, and the set north of that is the main line. The distance from the southernmost point of the south rail of the house track to the northernmost point of the north rail of the main line is 32 feet. There was a conventional crossarm railroad sign on the south side of the tracks, along the east side of Ogden Street. On the north side of the crossing, on the west side of the street, was a wigwag signal device, consisting of a metal disk from 12 to 15 inches in diameter, with a black cross painted on it, and with a red light bulb in the center of the disk. This device was attached to a post so that the disk faces traffic on the street and, when a train approaches, it lights up and swings in an are of about one yard. On top of the post is a bell which rings at the same time that the wigwag operates. This device had been in use there for a long time prior to the date of the accident.
The evidence was to the effect that Mrs. Grace and her husband, aged respectively 72 and 70 years, had for many years lived on a farm about two miles south of Sturgeon; that they did their shopping and banking in Sturgeon, where they also attended church; that they frequently visited their daughter, who lived north of Sturgeon; that they frequently drove to town and to their daughter's home, over this crossing.
Mr. Carter, a lawyer who lived at Sturgeon, was driving south along Ogden Street, to his home, at about 7:10 p. m., on October 9, 1952. It was then dark. He testified that as he approached this crossing he heard a train approaching from the west and observed the wigwag signal in operation; that he stopped his automobile about 60 feet north of the crossing and observed an automobile approaching from the south; that he turned off his lights; that the automobile did not stop or slow down, but approached at a speed of 20 miles per hour; that the train was whistling and its bell was ringing; that the wigwag signal was in operation, the bell ringing; that he did not think the light was burning on the wigwag; that when the automobile entered upon the main line, it was struck by the train; that the train was travelling at a speed of 75 or 80 miles per hour; that when the bodies of Mr. and Mrs. Grace were found Mr. Grace was dead. Mrs. Grace died within a few minutes thereafter. Mr. Carter stated that at the time the accident occurred there were two boxcars parked on the house track, west of the crossing; that the track curves to the northwest from the crossing; that on account of the curve he did not think that one approaching from the south, in an automobile, could have seen a train approaching from the west, even in daytime; that such a person would not have been able to see the headlight of an approaching train but might have seen rays of light therefrom; that the boxcars would block the view; and that he first saw the oscillating wigwag and heard the bell when he was about 250 feet north of the crossing.
Mr. Seitz, signal maintenance man for the Wabash, stated that he was called to Sturgeon at about 10:00 p. m. that night to repair the light on the wigwag signal; that the wire was broken and the light was out; that three days before the light was in operation when he inspected it; and that it is possible for a light to operate at one time and fail to operate at another time, by reason of a broken wire.
Mr. Sexton stated that one night some ten days before the accident he observed a train pass over this crossing; that the light of the wigwag was not in operation; that the following day he asked the station agent of the Wabash if he had noticed this fact; and that the Wabash maintenance man arrived during this conversation.
Mr. Estepp stated that either on the morning of the accident or the day before he observed that the light on the wigwag was not in operation.
Mr. Jennings stated that after the accident, on the night of October 9, 1952, he observed a freight train pass through Sturgeon; that the light on the wigwag was not in operation; that about a week or ten days before the accident occurred he observed a train pass over the crossing; that the light on the wigwag was not in operation.
Mr. Palmer observed that the light was not in operation on the night of the accident, an hour or so after the accident occurred. Mr. Roberts, while the train that caused the casualty was still on the track, noticed that the light was not working.
Mr. Smith, the engineer operating the train at the time the casualty occurred, stated that the train was scheduled to leave Moberly at 6:48 p. m. and arrive at Sturgeon at 7:00 p. m.; that the train actually left at 7:00 and arrived at 7:05 or 7:06; that the diesel motored engine was equipped with whistle, bell, headlight and Mar's light, the latter oscillating and throwing its beams to the front and to the side; that the speed at Sturgeon was 78 miles per hour; that there are no slow orders for Sturgeon; that he still travels through Sturgeon at 78 miles per hour; that the maximum speed permitted is 78 miles; that when he observed the Grace automobile the engine was probably 75 feet from the crossing; and that he applied emergency brakes before the collision occurred.
Mr. Schmidt, the fireman, stated that the distance from Moberly to Sturgeon is 12 to 14 miles.
Plaintiff's case was submitted under two verdict-directing instructions, P-1 and P-5. Instruction P-1 was directed solely to liability of the Wabash Railroad Company. After hypothesizing facts not here in dispute, it further declared: '* * *, and if you further find and believe from the evidence, that, at the time and place in question, the defendant, Wabash Railroad Company, its agents, servants, employees operated said train at a high, dangerous and excessive rate of speed under the circumstances then and there existing; and if...
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