Hieber v. Thompson

• Decision Date: 06 October 1952
• Docket Number: No. 21684,21684
• Citation: 252 S.W.2d 116
• Parties: HIEBER v. THOMPSON.
• Court: Missouri Court of Appeals

Page 116

252 S.W.2d 116

HIEBER v. THOMPSON.

No. 21684.

Kansas City Court of Appeals, Missouri.

Oct. 6, 1952.

Richard H. Beeson, David P. Dabbs, Dean F. Arnold, Kansas City, for appellant.

C. R. Leslie, Arthur C. Popham, Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for respondent.

DEW, Judge.

The repondent, referred to hereinafter as the plaintiff, brought this action to recover damages alleged to have been sustained in a collision at a railroad crossing in Nevada, Missouri, between an automobile in which she was a guest and a locomotive owned and operated by the defendant. The verdict and judgment were in the plaintiff's favor in the amount of $7500, from which defendant has appealed.

Several assignments of primary negligence were pleaded in the petition, together with a plea on the humanitarian theory, but the cause was submitted on primary negligence only, consisting of failure to warn, excessive speed and failure to maintain a lookout. The answer was in the nature of a general denial of the controverted facts and a defense that if plaintiff sustained any injuries at the time in question, 'the negligence of plaintiff's son in driving said automobile, and of the plaintiff's own negligence directly contributing, caused or directly contributed to cause said injuries.'

Plaintiff adduced evidence to the effect that she, a widow 65 years of age, was, on June 4, 1949, at 5:30 p.m. riding as a guest in a Hudson automobile with her son Elroy, who owned and was operating the car. Plaintiff had nothing to do with the driving, operation or control of the car in which she was riding. The weather was fair. They were going westward on Hickory Street in Nevada, Missouri, at a point where usually the traffic is very heavy at that hour of the day. The car was approaching a railroad crossing, consisting of several tracks which ran north and south at grade over and across Hickory Street and which were used by the defendant trustee for the railroad. Plaintiff claims that the crossing was unusually dangerous and hazardous. A flagman was provided at the crossing between the hours of 8:00 a.m. and 5:00 p.m. None was present at the time in question. Plaintiff and her son were familiar with the railroad crossing. As they approached within 50 feet of the crossing, plaintiff looked and saw no moving trains, but saw a locomotive about 100 feet south of Hickory Street, apparently standing still on one of the several tracks. The automobile was then traveling 15 to 20 miles an hour and when within 50 feet of the crossing, was slowed to 5 or 6 miles an hour, later increasing its speed. No bells were sounded nor were there any wigwags, gates, or warnings of any kind of the approach of the locomotive. One of the written operating rules of the defendant was that '* * * The engine bell must be rung when an engine is about to move and while approaching and passing public crossings at grade * * *'. Nearing the crossing 'quite a ways back', plaintiff asked her son if he thought he could make it and he answered: 'I think we can make it.' Plaintiff added: 'It looks like you could make it, you know'. The son looked to the right and left and saw no moving trains, but saw the locomotive standing on the track about 75 feet south. The automobile was missing in one cylinder and making noise. When within about 8 or 10 feet of the track the son heard the 'chug' of the locomotive moving toward him and about 10 or 12 feet from him, and, fearing he could not stop in time, he 'gunned' his motor and shifted into second gear. His car did not respond to acceleration. While crossing the track the automobile was struck by defendant's locomotive, a switch engine drawing several freight cars, coming from the south, and the automobile was pushed northward down the track 70 to 75 feet, seriously injuring the plaintiff.

According to defendant's evidence, the automobile approached the crossing at about 15 to 20 miles an hour and when within 20 to 30 feet from the track, slowed down to 6 or 7 miles an hour as if to stop, and then its motor was suddenly speeded up until the point of collision. Defendant's witnesses testified that the bell on the locomotive, operated by air, was started before the engine began to move toward the crossing, and was not turned off until after the collision. They said the locomotive had started from a momentary stop with its front about 60 feet south of Hickory Street, and it was going 5 to 8 miles an hour when the collision occurred, having gradually increased its speed from its start. The engineer had seen the automobile when the latter was 70 to 75 feet east of the track and it was slowing down. The locomotive was then within 10 feet of the street. The engineer looked back for signals from a switchman on a freight car attached and then heard the collision. When the locomotive entered Hickory Street the automobile was about 30 feet east of the track.

Defendant's first point is that the court erred in overruling his motion for a directed verdict offered at the close of plaintiff's evidence. This error, if any, was waived by the fact that defendant thereafter offered his own evidence on the issues involved. Porter v. Equitable Life Assurance Society, Mo.App., 71 S.W.2d 766, 772.

The second point is that the court erred in overruling defendant's motion for a directed verdict at the close of all the evidence (1) because there was no proof of negligence of the defendant which was the proximate cause of the collision and plaintiff's injuries, and (2) plaintiff was guilty of contributory negligence as a matter of law, which was the proximate cause of the injuries, because she acquiesced in, concurred with, and consented to the negligent act of her son, the driver and owner of the car, 'to beat the train over the crossing'.

Defendant admits in his brief that according to the evidence the locomotive started from a standing position about 75 to 100 feet south of the crossing. He asserts that there was no evidence that the crossing was unusually dangerous nor that it was his duty to maintain the warnings demanded by the plaintiff. He contends that the failure to sound the bell or to give any other warning could not be the proximate cause of the collision since both the plaintiff and her son saw the engine at that point. Both of them testified that they had no knowledge that the standing locomotive would start moving without warning by bell or otherwise, and the son testified that he was within 8 or 10 feet from the track before he heard the noise of the approaching locomotive about 10 or 12 feet from him, and, fearing that he could not then stop his car in time, he tried to 'gun' his motor, which did not respond sufficiently because of a missing piston. The locomotive, he said, was going about twice as fast as he was driving his car. We think, under the evidence, that it was a question of fact for the jury whether the bell or other warning was given, and if not, whether such failure was negligence, and proximately caused or contributed to cause the collision.

As to the speed of the locomotive there was evidence that it attained a speed from its starting point 75 to 100 feet south of the street of 12 to 14 miles an hour before the collision. There was other evidence that it attained a speed of 5 to 8 miles an hour. Whether such speed over the street crossing without warning or signals was negligence, and whether the same was a proximate cause, or a contributing cause of the collision were questions for the jury.

On the matter of failure to maintain a lookout ahead and laterally, there was evidence that when the engineer saw a car approaching the crossing about 75 feet east, and it appared to be slowing up for a stop, he turned his head to the south or rear of his engine for signals from the switchman on one of the freight cars he was pulling, and paid no more attention to the approaching automobile. He traveled about 25 feet while looking back. He testified that he looked forward again at the moment of the impact. Thus there was substantial evidence of a failure to maintain a lookout and whether such failure was negligence and a proximate cause of the collision were also matters for the jury's determination.

Defendant further contends that plaintiff was guilty of contributory negligence as a matter of law. It is argued that she acquiesced in, concurred in, and consented to her son's negligent attempt to 'beat the train over the crossing'. An invited guest in an automobile must exercise ordinary care for his own safety. Nahorski v. St. Louis Elec. Term. Ry. Co., 310 Mo. 227, 274 S.W. 1025, 1027. He must protest, if given a reasonable opportunity, when the course of operation of the car is plainly negligent or violative of the law. Blashfield Cyclopedia of Automobile Law and Practice, Vol. 4, Part 1, pp. 563, 565. Considering the plaintiff's evidence in the light most favorable to her on this issue, we cannot say that under the law she stands guilty of contributory negligence, because there was proof that when she made the remarks charged to her the automobile was 'quite a ways back' from the crossing, and after she had looked and had seen no moving trains, and had seen the locomotive in question at a standstill 100 feet south of the street, with no bells ringing nor any sign or other warning that the locomotive was about to start toward and across the street, she remarked, as had her son, that it looked like they 'could make it'. She said she did not think the engine would start up without ringing the bell. Under such evidence her contributory negligence, if any, became a matter for the jury. Gorman v. Franklin, Mo.Sup., 117 S.W.2d 289; Doyel v. Thompson, 357 Mo. 963, 968, 211 S.W.2d 704; Jackson v. Southwest Missouri R. Co., Mo.Sup., 189 S.W. 381. The court properly overruled defendant's motion for a direction verdict at the close of all the evidence.

Defendant next urges error by ...