Guthrie v. Missouri Pac. R. Co.

• Decision Date: 08 December 1925
• Docket Number: No. 19118.,19118.
• Citation: 279 S.W. 210
• Parties: GUTHRIE v. MISSOURIS PAC. R. CO.
• Court: Missouri Court of Appeals

279 S.W. 210

GUTHRIE v. MISSOURIS PAC. R. CO.

No. 19118.

St. Louis Court of Appeals. Missouri.

December 8, 1925.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

"Not to be officially published."

Action by Byron Guthrie against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James F. Green, of St. Louis, and W. C. Russell, of Charleston, for appellant.

H. C. Blanton and M. E. Montgomery, both of Sikeston, for respondent.

DAUES, P. J.

This is an action to recover damages for the destruction of an automobile by defendant railroad company at a public crossing near Sikeston, Scott county, Mo. At the time the accident occurred, plaintiff's automobile was being driven by one Henry Bolden, a brother-in-law of plaintiff. There was a verdict and judgment in favor of plaintiff for the sum of $500, from which defendant appeals.

Plaintiff's petition alleges that the damage to his car was caused through the negligence of defendant in operating the train, the failure of defendant to ring a bell or sound a whistle as required by law, and pleads that the railroad crossing, at which the car was struck, was defective and out of repair. The petition also relies upon the humanitarian doctrine. This latter assignment of negligence was abandoned.

The answer pleads contributory negligence on the part of Bolden, the driver of the automobile, and also pleads the agency between Guthrie, the plaintiff, and the driver, Bolden.

The reply is a general denial.

Three assignments of error are brought here. They may be grouped, since each reaches the point that under the law and the evidence plaintiff had no case to go to the jury, and that the verdict should have been directed for defendant, on the instructions offered by defendant in the nature of demurrers to the evidence at the close of plaintiff's case, and again at the close of the whole case. The reason advanced therefor in respondent's brief is that the accident was shown by the evidence to be due solely to the automobile driver's negligence. Differently stated, it is said that the proof clearly shows that the proximate cause of the accident was the negligence of the driver of the automobile, and, axiomatically, that the negligence of defendant in maintaining a bad crossing, and in failing to sound a bell or blow a whistle at the crossing, were not the proximate cause of the injury.

Plaintiff's witnesses testified, strongly, that the crossing in question was defective; that the track between the rails was hollow and worn out; that there was a depression from four to eight inches from the roadway to the rails, both outside the rails and between same; that the boards were worn out; that the approach to the crossing used by the public was rough and steep, and that the approach could be used only with difficulty; and there is proof that this condition had existed for a long period of time. There is also evidence to the effect that automobile engines sometimes were "killed" in trying to go over this crossing.

An eyewitness, Charles Burns, testified for plaintiff that he saw the automobile attempting to make the crossing, but that the road was so rough that the front wheels of the car "got clear off, and the hind wheels got between the ball of the south rail and that hole, and it looked like it come to steady. It was stopped for a second or two." Many witnesses testified that the engine crew of defendant's train failed to either ring a bell or blow a whistle, as required by statute.

It is not contended by counsel for defendant that there was not sufficient evidence as to these assignments of negligence. As to the matter of agency, it is shown that the automobile was owned by plaintiff, having been bought by him three or four days before the accident. On the day the accident occurred, plaintiff drove the car to the town of Sikeston to board a train going north. He asked Bolden to drive him to the depot, which he did. On departing, he told Bolden to take the car back to the garage of one Adam Rouse, who lived in the east side of Sikeston. Plaintiff says he did not give anybody permission to use his car, nor did he specifically forbid it. He did not leave the key to the car with Bolden, but directed that the car be left in the Rouse garage. After plaintiff had taken the train, Bolden, as directed, returned the car to the garage. Afterwards he took the car, in order to convey his sister-in-law, who was also plaintiff's sister-in-law, and four small children—two of his own and two of the sister-inlaw—to a place about one mile east of Sikeston, and it was while upon this journey that the automobile was struck by the train. Plaintiff testified positively, as shown by respondent's additional abstract, that the car was not being driven on...