Graves v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 13 March 1950 |
| Docket Number | No. 1,No. 41469,41469,1 |
| Court | Missouri Supreme Court |
| Parties | GRAVES v. ATCHISON, T. & S. F. RY. CO. et al |
John H. Lathrop, Sam D. Parker, Donald H. Sharp, Kansas City, Waldo Edwards, Paul D. Hess, Jr., Macon, for appellants.
Robert N. Jones, St. Louis, for respondent.
VAN OSDOL, Commissioner.
Action for $10,000 for the death of America V. Graves, which occurred October 19, 1947, at Carpenter Crossing, about three and three-fourths miles west of La Plata, when the 1926 Model T Ford automobile in which she was riding as a guest of her son, Everett Graves, was struck by defendant Railway Company's westbound passenger train of eight coaches drawn by an oil-burning steam engine.
Plaintiff's case was submitted to the jury under the penalty section, Section 3652, R.S.1939, Mo.R.S.A. Sec. 3652, of the Wrongful Death Act on alleged statutory and common-law negligence in failing to sound warning signals; and on alleged negligence in moving the train over a public crossing at a high, excessive and dangerous rate of speed. The jury returned a verdict for defendants, Railway Company and its engineer, but the trial court sustained plaintiff's motion for a new trial, specifying assignments 1, 16 and 17 of the motion for a new trial as grounds for sustaining the motion. Defendants have appealed.
The assignment 1 of the motion for a new trial, specified by the trial court as a ground for granting the new trial, is as follows,
The specified assignments 16 and 17 relate to asserted errors in giving instructions.
The trial court's sustention of the motion for a new trial on the ground the verdict was against the weight of the evidence was discretionary. However, such discretion should not be exercised in an arbitrary or unreasonable manner; and, in determining whether the trial court properly exercised its discretion in awarding a new trial on such ground, we will examine the record to ascertain if there was sufficient substantial evidence to justify the submission of plaintiff's case to the jury; or to sustain a verdict for plaintiff, the party to whom the new trial was granted. Happy v. Walz, 358 Mo. 56, 213 S.W.2d 410; Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Section 115, Civil Code of Missouri, Laws of Missouri 1943, p. 388, Mo.R.S.A. Sec. 847.115; Supreme Court Rule 3.22. If a plaintiff has not made out a submissible case, errors in instructions are immaterial upon appeal. Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365; Bootee v. Kansas City Public Service Co., 353 Mo. 716, 183 S.W.2d 892.
At Carpenter Crossing, Railway Company's double-track line runs in a nearly east-west direction. A public highway, Carpenter Road, crosses defendant's line at approximately a right angle. There is a 'fill' or embankment to the eastward along the south of and on the right-of-way. The embankment begins about 80 feet east of the crossing and extends eastwardly about a quarter of a mile in and along the south side of the right-of-way to a point where, at a private crossing, there is a small gap or opening in the embankment, and then the embankment continues on eastwardly. From the west end of the embankment to the east side of the crossing the right-of-way is 'level, or a little bit lower than the track.' On the south, the highway, from a point 200 feet back from the crossing, inclines at a grade of about 10% until it comes to a 'pretty steep' incline up a graveled surface of 11 or 12 feet extending to the south rail of the south (eastbound) track. When 'you come up to the crossing going North, you have to come up a pretty steep incline to get up on the track, and of course when you are looking East you can't see a train until you get pretty near up onto the tracks * * * you can't see till you get right up to the track, I will say in about a feet of the eastbound track.' Railway Company's tracks are 4 feet 8 1/2 inches gauge, 14 feet apart, center line to center line. Thus, it seems, the distance from the southerly extent of the graveled surface to the southerly rail of the north (westbound) track is about 28 feet.
A crossarm 'Railroad Crossing' sign (black 9-inch letters with 1 1/4-inch sweep on a white background) sits north of the north track and east of the traveled portion of the highway. The center of the crossarm is 7 feet from the ground. The sign is visible to a highway traveler approaching from the south at all points within at least 350 feet of the crossing. Crossing wings, and steel rails on either side of the roadway are to be seen at least from and throughout such distance. Glancing obliquely to the right, such traveler can see the crossarms and upper portions of telegraph poles above the embankment and aligned throughout a distance of several hundred feet to the eastward. [Photographs introduced into evidence disclose that, from a point in Carpenter Road 50 feet south of the crossing, one has a view of the railroad tracks east of the crossing for a distance of at least 200 feet; and that, from a point in the center of the highway 25 feet south of the center of the north (westbound) track, a traveler can see the track as far as 4600 feet east of the crossing, although there is a curve beginning at a point 3900 feet east of the crossing.] The railroad tracks are straight east of the crossing for nearly three fourths of a mile (3900 feet); and trains approach from the eastward on the north (westbound) track, moving up a slight grade which continues to a point about 1100 feet west of the crossing.
At about twenty minutes to five o'clock the afternoon of October 19, 1947, the sky was clear; the sun was low in the west; and, we infer, a three-mile-per-hour wind was blowing west-southwest. Plaintiff's decedent was a passenger in the automobile belonging to her son Everett. She and Everett had been visiting the home of another son, plaintiff Noah Graves, who resides on the east side of Carpenter Road, a fraction over one-half mile south of Carpenter Crossing. Everett, driving, started from Noah's home and went north up Carpenter Road. The automobile passed onto Carpenter Crossing, and was struck by Railway Company's train which, according to the testimony of defendant engineer and the fireman, was moving 75 or 80 miles an hour. The train was a 'second section,' and had left Shopton late. The defendant engineer had not seen the automobile. The fireman 'did see up the track just in time to see the car * * * apparently I didn't see anything at first, then this car drove right in view of me * * * the first it came into view of me it was just about on the Eastbound track.' No other witness testified of having seen the automobile approach or pass onto the crossing and in front of the train. At the 'same time' the car was struck, the engineer 'applied the emergency.' Both of the occupants of the automobile were killed, and the demolished vehicle was carried westwardly 4710 feet. About that time there was an on-coming freight train, and its crew assisted in removing the bodies and the wreckage of the automobile from beneath the pilot of the engine.
At the time of the collision, a passenger seated in the first or second coach of the train was playing cards with a friend. The passenger testified he knew the engine had a whistle; he didn't know about the bell. He had ridden on the train from Chicago and had heard the whistle blow several times along the line. 'I wasn't paying particluar attention, but I heard it blow several times coming along.' The last time he had heard the whistle was about thirty minutes before the train reached La Plata. 'That is when we remarked about the eeriness of the whistle.' Having been asked if he knew whether a whistle was sounded or not, the witness said, He did not hear any whistle or bell. 'As near as I can say, I don't believe there was' any eerie sound just before the fatal occurrence. Upon being asked if, at the time of the occurrence, he thought 'about whether any whistle was sounded,' the witness answered,
Plaintiff Noah Graves, who, as stated, lives a little over a half-mile south of the crossing, can more plainly hear the whistles of Railway Company's trains when he is at his home than when he is up at the track. 'I don't know why that is.' He remembered hearing only one train 'that went by' and that was 'shortly' after his mother and brother left. He heard no train whistle. He does not listen He did not know if the train he heard was the one involved, but he did not hear any other at the approximate time.
Both the defendant engineer and the fireman testified the whistle had been sounded from the time the train had reached the signal post, 1996 feet east of the crossing, and the whistling was continued until the train reached the crossing. The engineer further testified the bell of the engine was continuously ringing.
Other evidence will be mentioned in the course of the opinion.
On the issues of alleged negligence in failing to sound warning signals, defendants-appellants contend plaintiff failed to adduce any substantial evidence the bell or the whistle was not sounded, and there was positive evidence introduced by defendants that the bell and the whistle were sounded when the train was approaching the crossing. Defendants-appellants urge that, to constitute substantial evidence that a warning signal was not sounded, testimony must come from a witness in close proximity to the track, conscious of its presence and so situated as to be able to hear. The cases of Willsie v. Thompson, 359 Mo. ----, 223 S.W.2d 458; Knorp v. Thompson, 357 Mo. 1062, 212 S.W.2d 584, 5 A.L.R.2d 103; and Connole...
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