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

• Citation: 234 S.W.2d 524,361 Mo. 234
• Decision Date: 13 November 1950
• Docket Number: LOUIS-SAN,No. 42102,42102
• Parties: MARSHALL v. ST.FRANCISCO RY. CO.
• Court: United States State Supreme Court of Missouri

Page 524

234 S.W.2d 524

361 Mo. 234

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

No. 42102.

Supreme Court of Missouri, en Banc.

Nov. 13, 1950.

Rehearing Denied Dec. 11, 1950.

C. A. Calvird, Clinton, David Trusty, Sam Mandell, Kansas City, for appellant. Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel.

E. G. Nahler, St. Louis, Thos. E. Deacy, Kansas City, Haysler Poague, Clinton, Ray L. Shubert, Harrisonville, Milligan, Kimberly & Deacy, Kansas Ctiy, Poague, Poague & Brock, Clinton, for respondent.

DALTON, Judge.

Action for $25,000 damages for personal injuries and property damage sustained when plaintiff's automobile, which he was operating, collided with one of defendant's trains at a grade crossing on U. S. Highway No. 50-S, near Burrton, Kansas, on May 18, 1946. The cause was submitted to the jury under the last clear chance doctrine of Kansas and a verdict was returned for plaintiff for $5,000. Thereafter the trial court sustained defendant's motion for a new trial and its motion for judgment notwithstanding the verdict, and entered a judgment for defendant in accordance with defendant's prior motion for a directed verdict. Plaintiff appealed to the Kansas City Court of Appeals and that court affirmed the judgment, holding that plaintiff had failed to make a submissible case. 229 S.W.2d 724. The cause was transferred here upon the order of this court and we must review the record as though the appeal had properly come to this court in the first instance. Sec. 10, Art. V, Const. of Mo. 1945, Mo.R.S.A.

The pleadings, issues and evidence are well covered in the statement of facts set out in the opinion of the Court of Appeals, which statement is adopted by reference and need not be repeated here. Some of the evidence will be reviewed in the course of this opinion and, where necessary, other facts shown by the record will be stated Briefly the evidence shows that defendant's railroad extends north and south and U. S. Highway No. 50-S, a paved highway, extends east and west. The highway is straight and level for some distance east of the crossing. The crossing was marked by a state highway crossing marker some 300 feet east of the crossing and by the ordinary cross-arm railroad crossing sign some 99 feet east of the crossing. Thirty feet north of the pavement and begining at a point 104 feet east of defendant's main line track, a heavey shelter belt of trees extended for some 100 feet east and west, parallel to the highway. There was a switch track on each side of defendant's main line, but defendant's train was moving south on the main line at about 15 miles per hour. Plaintiff's evidence tended to show that no signals by bell or whistle were given, and that the speed of the train was not changed prior to the collision. Plaintiff approached the crossing from the east, driving his automobile west on the north side of the highway at 40-45 miles per hour. The pavement was 'damp and slick.' It was daylight, about 6:30 p. m., but plaintiff did not see the crossing signs, nor hear any noise or signals of the approaching train and he did not see the train until the front end of the locomotive appeared from behind the shelter belt of trees on his right as the train approached the crossing from the north. Plaintiff testified that when he first saw the train it was about 175 feet north of the crossing and that his automobile was about 175-200 feet east of defendant's main line track. He instantly applied his brakes and tried to stop, but lost control of his automobile and was not able to regain control, however the speed of his automobile was reduced to 15 miles per hour before the collision. Defendant's engine and plaintiff's automobile reached the crossing at approximately the same time and 'hit just about nose to nose.' The automobile was wrecked and plaintiff and two guests were injured, a third guest was killed.

After reviewing the evidence in some detail the Court of Appeals held that there was no substantial evidence of facts from which the jury could determine whether the plaintiff was in fact 'helpless' or 'unable' with the means at hand, and by the exercise of reasonable care, to extricate himself from the danger or to avoid the collision, or had, in fact, 'lost control'; and that 'the plaintiff failed to make a submissible case for lack of proof that his own negligence had ceased and that he was unable 'to avert the collision by due care and the means at hand.' 229 S.W.2d 724, 729, 730.

Error is assigned on the action of the trial court in entering judgment for defendant and in holding that plaintiff failed to make a submissible case under the last clear chance doctrine of Kansas. Appellant insists that the trial court 'erred in holding that plaintiff was guilty of contributory negligence, as a matter of law, which continued up to the time of the collision and which barred any recovery under the last clear chance doctrine of the State of Kansas.' Appellant further insists that 'plaintiff's evidence showed he was in inescapable peril which was discovered or discoverable by defendant in time for it to have avoided a collision by stopping or slackening the speed of its train, and that it failed to do so.'

On the other hand, respondent insists that 'plaintiff's negligence continued up to the time of the collision and directly concurred in causing same'; that 'it was the plaintiff's duty to look for and see the railroad crossing'; that it was his duty as he approached the crossing 'to have his car under such control that he could stop before reaching the track'; that it was his duty 'to approach the crossing at such speed that he could stop after reaching a point where he could see the approaching train and before coming within the danger zone'; that 'the duty to exercise care was a continuing one'; that 'plaintiff's loss of control of his automobile was negligence in itself'; that plaintiff's failure to regain control was likewise negligence; that the evidence did not disclose why plaintiff lost control or why 'he was not able to regain control in a distance of 200 feet'; that plaintiff was guilty of negligence and of failure to discharge his duties in all the respects mentioned; and that such negligence and failure to discharge his duties in the operation of the automobile 'continued up to the time of the collision and directly concurred in causing same.' Respondent further says that 'under plaintiff's own evidence his reduction of the speed of his automobile was the proximate cause of the collision and that plaintiff by such conduct was guilty of continuing and concurring negligence.'

The essential elements of the last clear chance doctrine of Kansas are well stated in Goodman v. Kansas City, M. & S. R. Co., 137 Kan. 508, 21 P.2d 322, 324, as follows: '(1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence has ceased; (3) that defendant, seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part, had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care; and (5) as a result of such failure plaintiff was injured.' Also see Ross v. Chicago, R. I. & P. R. Co., 165 Kan. 279, 194 P.2d 491, 495; Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50, 63, 23 P.2d 449.

On the record presented the evidence clearly shows that plaintiff was guilty of contributory negligence in approaching the crossing at 40-45 miles per hour and in failing to see and heed the crossing signals, which were plainly visible. Coleman v. St. Louis-San Francisco R. Co., 130 Kan. 325, 286 P. 254, 257; Heinen v. Atchison, T. & S. F. R. Co., 125 Kan. 612, 266 P. 35, 37; Gage v. Atchison, T. & S. F. R. Co., 91 Kan. 253, 137 P. 938, 939. The plaintiff, in predicating his right of recovery solely upon the doctrine of last clear chance, concedes that he was guilty of contributory negligence which would otherwise bar recovery. Ross v. Chicago R. I. & P. R. Co., supra 194 P.2d 491, 495; Jamison v. Atchison, T. & S. F. R. Co., 122 Kan. 305, 308, 252 P. 472, 473; Murphy v. Atchison, T. & S. F. R. Co., 353 Mo. 697, 183 S.W.2d 829, 832.

In view of the law of Kansas, which is controlling here, the issues presented are: Did plaintiff's negligence cease prior to the collision? If so, when and where did it cease, and what could defendant have done thereafter to avoid the collision and injury to plaintiff? The burden of proof rested upon plaintiff to establish all of the essential elements of his case, including stbstantial evidence that his negligence had ceased prior to the collision and that it ceased in sufficient time for the defendant thereafter by the exercise of ordinary care to have avoided the collision and injury. Vail v. Thompson, Mo.Sup., 232 S.W.2d 491, 493; Bollinger v. St. Louis-San Francisco R. Co., 334 Mo. 720, 67 S.W.2d 985, 991; Murphy v. Atchison, T. & S. F. R. Co., 355 Mo. 643, 197 S.W.2d 632, 634; Tarter v. Missouri, K. & T. R. Co., 119 Kan. 365, 239 P. 754, 755.

In the case of Vail v. Thompson, supra, 232 S.W.2d 491, 493, this court pointed out that 'Under the Kansas law, the contributory negligence of an injured person ceases to be a complete defense only when such person is in helpless peril; 'that is in a condition of peril from which he cannot by the exercise of reasonable care extricate himself.' * * * Until his position of peril is such that he cannot escape therefrom by his own efforts, his negligence (in not doing what he could to save himself) is considered to be a continuing concurring cause.' Also, see Trower v. Missouri-Kansas & Texas R. Co., 347 Mo. 900, 149 S.W.2d 792, 796; Caylor v. St. Louis-San Francisco R. Co., 332 Mo. 851, 59 S.W.2d 661; Dyerson v. Union Pac. R. Co., 74 Kan. 528, 87 P. 680; Bazzell v. Atchison, T. & S. F. R. Co., 133 Kan. 483, 300 P. 1108; Buchhein v. Atchison, T. & S. F. R. Co., 147 Kan. 192, ...