Malone v. St. Louis-San Francisco Ry. Co.

• Decision Date: 01 June 1926
• Docket Number: No. 19431.,19431.
• Citation: 285 S.W. 123
• Parties: MALONE v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

285 S.W. 123

MALONE v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 19431.

St. Louis Court of Appeals. Missouri.

June 1, 1926.

Rehearing Denied June 24, 1926.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

Action by May Malone against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. T. Miller and A. P. Stewart, both of St. Louis, for appellant.

Douglass, Inman & Horsefield, of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries sustained by plaintiff on December 21, 1923, when an automobile in which plaintiff was riding was struck by one of defendant's passenger trains at a crossing in St. Louis county, Mo. There was a verdict and judgment in favor of plaintiff for $2,500, from which defendant appeals.

The case was submitted on the allegation of negligence that defendant failed to give the statutory signal at the railroad crossing, and, though the petition prayed for damages for personal injuries sustained by plaintiff as well as for damages to the automobile, the instructions limited the damages to the personal injuries.

The answer is a general denial, with pleas of contributory negligence on the part of plaintiff and the driver of the automobile. The reply is a general denial.

The chief assignment of error goes to the action of the lower court in refusing a demurrer to the evidence at the close of the whole case, and the argument is made that both plaintiff and her brother, the driver of the automobile, saw and had notice of the approaching train before the collision, and that accordingly a failure, if any, to give the statutory signal was not the proximate cause of the injury, and that plaintiff is barred from recovery by the negligence of her driver, Which is imputable to her. So, with the controversy about these facts in mind, we will attempt to briefly state the evidence as disclosed by the record.

Plaintiff and her brother, Lyman E. Malone, on the day of the accident, were riding in an automobile which belonged to plaintiff, and which was then being driven by her brother. They were driving in a westerly direction over Manchester road in St. Louis county, near the town of Allenton at a point where defendant's tracks cross Manchester road just west of said village. There were two "other passengers in the automobile at the time of the accident. Plaintiff was riding in the back seat, and her brother, the driver, was in the front seat when they came to the railroad crossing. Both plaintiff and her brother testified that the automobile was stopped about 8 or 10 feet from the tracks, and plaintiff from the rear seat and the driver from the front seat looked in both directions and listened for an approaching train. It was their testimony that they neither heard nor saw the train approaching. It was about 9 o'clock in the morning and all the witnesses agreed that it was an extremely foggy morning. There is evidence that the train at this point, because of the density of the fog, could not be seen more than 150 to 200 feet away. After the car was stopped and the occupants heard and saw no train, the driver then moved up slowly, placing the car in second speed to cross the tracks. He did this after he and plaintiff concluded that the track was clear so far as they could see and hear. After the car had reached to within one to five feet of the track the driver saw a train "poke its nose through the fog." He immediately exclaimed: "My God! Get out of the car." All left the car in safety excepting the plaintiff, who, it seems, got as far as the running board when the train struck the automobile and thereby injured her. The driver testified that when he saw the train emerge through the fog, same was about 150 feet away from him, and that this was as far as one could see the train at that place under those weather conditions.

Plaintiff, testifying in her own behalf, frankly admitted that she could not tell the distance in feet or yards, but when invited to make a guess at the distance said she thought it was not more than 150 yards, but she made it plain that she was not competent to judge distances in yard measurements. Both agreed, however, that as soon as they saw the train, which was as soon as it could be seen, emerging from the fog, it was but an instant until they were struck. The driver testified that he attempted to stop the car When he first saw the train piercing the fog, and that he attempted to stop the car for the reason that, for a moment, he thought the train was on another track, but that when he realized it was on the track that the automobile was on, he discovered it was too late to start the car again and he then ordered all to spring for their lives. He testified that he did not know whether the engine was killed in making the shift. Plaintiff and the driver both testified positively that no signal was given, either by bell or whistle, of the approaching train, until within a few feet of the crash; that is to say, about 50 or 75 feet away.

Defendant's evidence strongly contradicts the evidence adduced by plaintiff. Witnesses testified as to the ringing of the bell and as to the admission on the part of the driver after the accident that he had killed his engine on the track. However, in determining the question on the sufficiency of the proof to make a case for the jury, the proponent of a demurrer may not look to his own proof to destroy the prima fade case of plaintiff. Plaintiff, however, may resort to the defendant's proof as an aid to plaintiff's case, so we are not concerned here with the defendant's evidence on the side of an argument in favor of the demurrer. Plaintiff by her own testimony, and by the testimony of the driver of the car, plainly made out a prima facie case which brought the case to the jury for solution on the facts. Plaintiff and her brother both testified that because of weather conditions they exercised the precaution to stop their car within 8 or 10 feet of the track. Not alone the driver, but the plaintiff as well, looked both ways; they listened for an approaching train; they saw none, and they did not hear either whistle or bell or other noise indicating that a train was approaching. They then started the car towards the track, continuing to look and listen for a train; they still saw none and heard no whistle. Other witnesses testified that there were no signals given. Once being in the tracks, they saw the engine burst through the fog at a distance of about 150 feet away. They momentarily concluded to stop, then, fully realizing the danger, attempted to leave the car to seek safety, and plaintiff was injured. This made a case for the jury.

The doctrine of the case of Peterson v. United Rys. Co., 270 Mo. 67, 192 S. W. 938, and similar cases does not apply under the facts of this case. The mere fact that plaintiff and the driver finally saw the train 150 feet from the crossing coming through the fog, the train at that time, according to the trainmen, was then running between 20 and 35 miles an hour, and it being admitted that you could not see an object ahead more than 200 feet away, certainly does not show that the failure to give the statutory signals was not the proximate cause of the collision. Hornstein v. United Rys. Co. 195 Mo. 440, 92 S. W. 884, 4 L. R. A. (N. S.) 729, 113 Am. St. Rep. 693, 6 Ann. Cas. 699; Weltch v. Railroad, 190 Mo. App. 213, 176 S. W. 261; Detchemendy v. Wells (Mo. App.) 253 S. W. 150; McNulty v. Railroad, 203 Mo. 475, 101 S. W. 1082.

The evidence tends to show that the train could not be seen more than 150 feet away on account of the fog. The crossing, then, will be treated as an obstructed one. Plaintiff had a right to rely upon the statutory signals being given, and, when she and the driver listened for them and heard none, her attempt then to cross would not make her conduct such as to adjudge her guilty of contributory negligence as a matter of law. McKerall v. Railroad (Mo. App.) 257 S. W. 166; Rogues v. Butler Co. R. Co. (Mo. App.) 264 S. W. 474.

Defendant criticizes plaintiff's instruction No. I. This instruction is as follows:

"The court instructs the jury that, if you find from the evidence in this case that the crossing over the defendant's tracks at the place mentioned in the evidence was a place where a traveled public road crossed the defendant's tracks, then when one of the defendant's trains was approaching said crossing the law of this state requires either that the bell be rung at said crossing and...