Kerr v. Bush

• Decision Date: 06 February 1918
• Citation: 200 S.W. 672,198 Mo.App. 607
• Parties: SUSIE KERR, Respondent, v. B. F. BUSH, Receiver of the ST. LOUIS IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

200 S.W. 672

198 Mo.App. 607

SUSIE KERR, Respondent, v. B. F. BUSH, Receiver of the ST. LOUIS IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Springfield

February 6, 1918

Appeal from Stone County Circuit Court.--Hon. Fred Stewart, Judge.

REVERSED AND REMANDED.

Case reversed and remanded.

Barbour & McDavid, Rufe Scott and James F. Green for appellant.

G. W Thornberry and Hamlin, Collins & Hamlin for respondent.

STURGIS P. J. Farrington and Bradley, JJ., concur.

OPINION

STURGIS, P. J

The plaintiff, as widow of William Kerr, deceased, sues for damages under the wrongful death statute for the death of her husband caused by the alleged negligence of the defendant in operating as receiver the St. Louis, Iron Mountain &amp Southern Railroad. The deceased met his death on the night of March 1, 1916, at or near a public road crossing some three miles east of Galena, Stone County, Missouri, where his body was found about nine o'clock p. m. The railroad runs north and south through the town of Galena and just south of the town turns east, crosses James River, and runs east and then southeast to the town of Reeds Spring. The deceased was a farmer and lived adjoining the defendant's right of way on the south something more than a quarter of a mile east of the crossing where he met his death and was at the time going from Galena to his home. The public road from Galena to Reeds Spring also passes deceased's home and follows the same general direction of the railroad, and, crossing it at right angles from the north side to the south side at Scobee Crossing, continues east past deceased's residence which is between the wagon road and the railroad and close to each.

The petition alleges that the deceased was returning home from Galena on the night of March first and in doing so was traveling the public road to the Scobee Crossing and while attempting to cross the railroad at such crossing was struck and killed by defendant's work train running west toward Galena. The sole ground of negligence alleged was that this train was run at a high and dangerous rate of speed across the public road without giving any statutory warning of ringing the bell or sounding the whistle. It is distinctly alleged that deceased was at all times traveling on the public highway and was crossing the railroad in so doing when he was struck and killed.

The answer is a general denial and pleads contributory negligence in that the deceased carelessly and without looking or listening went upon the railroad track in front of an approaching train and was thereby struck and killed. The reply denies the contributory negligence and says that the night was dark and the engine of defendant's train was running without a headlight or any light and was pushing a freight car in front of the engine; that no signal or warning was given and that owing to the conditions the deceased had no warning of the train's approach.

The defendant's theory, developed at the trial, is that the deceased approached this crossing traveling down the railroad track going home and that he was struck and killed while on or trying to cross the cattle guard at the side of the public road; or at least the evidence makes this as probable as the plaintiff's theory. The last time William Kerr was seen alive was at Galena, apparently starting home about five o'clock in the evening by going east on the public road. This road, however, after crossing James River just east of town on a bridge further north than the railroad bridge, there divides, one road going north and east over the hills and returning to the railroad, the other going south and passing under the railroad river bridge and thence east on the south side of the railroad. There was a path leaving this southern branch near the railroad bridge by which pedestrians frequently went onto the railroad track and thence east along such track. No one knows which of the three roads (the north public road, the middle railroad or the south public road) the deceased traveled toward the fatal crossing, though the case proceeded upon the general assumption that it was either the north public road or the railroad. There was evidence that deceased had used both routes more or less frequently. This, however, is not very material, as all these roads, the two wagon roads and the railroad, again converge at what is called the Covey Crossing, a half mile or more west of and before reaching the Scobee Crossing where deceased was killed. From the Covey Crossing to the Scobee Crossing the public road and the railroad are nearly parallel and close together. The material point is to know whether the deceased traveled from the Covey Crossing to the Scobee Crossing along the public road or the railroad track, for that determines whether when killed he was crossing the railroad on the public road or was crossing the public road on the railroad.

That deceased was struck and killed at the crossing (however he approached it) as the jury found, we think amply supported by substantial evidence. His body was found by traveler on the railroad an hour or less after the train in question passed over this crossing. The trainmen, however, knew nothing of the accident. The deceased's body was found sixty feet or more west of the west cattle guard lying between the rails but the evidence all showed that it was dragged at least from such cattle guard. There is substantial evidence that there was blood and brains near the north rail at a point at least two or three feet east of the east side of this cattle guard and therefore in the public highway, though some ten feet from the traveled wagon track. As the train was going west some fifteen to twenty miles per hour when it struck deceased, he could hardly, when struck, have been further west than the first blood spots and was likely struck and knocked some distance by the first impact and left these traces when he next touched the rail and ties. This is further shown by his cap being found just east of the cattle guard and in the highway at or near the same place as the blood and brains. Some lemons which the deceased carried were found under the cattle guard. If the deceased approached along the highway it is not unnatural in view of its muddy condition that he walked along the side of the traveled track rather than in it. This point is therefore settled by the jury's verdict.

It is also settled in the same way that defendant was negligent in failing to give any warning by bell or whistle in approaching this crossing. Several witnesses who were in a position to observe and know so testify and the evidence on this point cannot be called weak. This failure to give the statutory signal by bell or whistle in approaching a public road is negligence per se; and, with the finding that deceased was killed and plaintiff's damage was sustained at such crossing, the burden is cast on defendant to show that such negligence was not the cause of such injury. [Sec. 3140, R. S. 1909.] The rule is stated in McNulty v. Railroad, 203 Mo. 475, 477, 101 S.W. 1082, that: "The effect of the statute, section 1102, Revised Statutes 1899, adopted in 1881, has been to change the law in this respect, so as to make a prima-facie case by proof of the failure to ring the bell accompanied by an injury at the crossing. There need be no proof that the failure caused the injury. The law supplies that proof, and casts the burden upon the defendant to show that the failure to ring the bell was not the cause of the injury." It is the general rule in negligence cases that the plaintiff must show a causal connection between the negligent act and the injury or damage; but such is not the law by reason of our statute in a case of negligence for failure to give statutory signals at road crossings. "Such would also be the rule as to failure to give the statutory signals, were it not that the effect of the statute (Section 3140, R. S. 1909) has been to change the law in this respect, so as to make a prima-facie case by proof of the failure to give the signals, accompanied by an injury at the crossing. There need be no proof that the failure to give the signals caused the injury. The law supplies that proof and casts the burden upon the defendant to show that the failure to ring the bell was not the cause of the injury." [Byars v. Railroad, 161 Mo.App. 692, 707, 141 S.W. 926; 2 Thompson on Negligence, sec. 1587; Huckshold v. Railroad, 90 Mo. 548, 2 S.W. 794.] In McGee v. Railroad, 214 Mo. 530, 544, 114 S.W. 33, the court quoted the statute and said: "Under that statute, plaintiffs were relieved from proof that the failure to ring the bell or sound the whistle was the proximate cause of the injury. The statute supplies the causal connection. In other words, given proof of a failure to comply with the law and that injury ensued at the crossing (as here), then the statute raises a presumption that the injury was the result of disobeying the statute--that they bore the relation of cause and effect--and the burden is cast upon the defendant to show that the failure to give the statutory signals did not cause the injury."

The above rule, however, does not relieve the plaintiff of the consequences of contributory negligence as a defense ( Whitesides v. Railroad, 186 Mo.App. 608, 617, 172 S.W. 467); and the defendant discharges the burden cast upon him by the statute if it shows that the deceased was guilty of negligence contributing to and mingling with defendant's negligence in causing the injury. The evidence is that the railroad track at this point was straight and unobstructed; and that under normal conditions a train could be readily seen and heard for such a distance as to make the fact that deceased, with sight and hearing unimpaired,...