McCall v. Thompson

• Citation: 155 S.W.2d 161,348 Mo. 795
• Decision Date: 30 October 1941
• Docket Number: 36680
• Parties: Tom F. McCall, Administrator of the Estate of Ella Shelton, v. Guy A. Thompson, Trustee, Appellant
• Court: United States State Supreme Court of Missouri

155 S.W.2d 161

348 Mo. 795

Tom F. McCall, Administrator of the Estate of Ella Shelton, v. Guy A. Thompson, Trustee, Appellant

No. 36680

Supreme Court of Missouri

October 30, 1941

Appeal from Christian Circuit Court; Hon. Robert T. Gideon Judge.

Affirmed and remanded.

Thos J. Cole and McReynolds & Flanigan for appellant.

(1) Plaintiff did not make out a case under the humanitarian doctrine and the demurrer to the evidence should have been sustained. Stark v. Berger, 125 S.W.2d 870; Elkin v. St. Louis Pub. Serv. Co., 74 S.W.2d 600. (2) Plaintiff sued as administrator of the estate of Ella Shelton, who came to her death in a common disaster with her husband. Absent proof that she was not survived by her husband her administrator has no cause of action. There is no such proof in this record. The verdict for defendant was therefore, a correct result. Sec. 3652, R. S. 1939; Betz v. Kansas City So. Ry. Co., 284 S.W. 455. (3) There was no error in defendant's instructions and the court erred in sustaining the motion for a new trial on the ground of supposed error therein. Clark v. A., T. & S. F. Ry. Co., 6 S.W.2d 954; Kirkdoffer v. St. Louis-S. F. Ry. Co., 37 S.W.2d 569; Stanton v. Jones, 59 S.W.2d 648; Restatement of the Law of Torts, par. 480; Wommach v. Mo. Pac. Ry. Co., 88 S.W.2d 368; Elkin v. St. Louis Pub. Serv. Co., 74 S.W.2d 600.

Gardner & Gardner for respondent.

(1) On the question of defendant's negligence, under the humanitarian doctrine, in failing to slacken speed or stop the train, plaintiff made a submissible case. Maginnis v. Mo. Pac. Ry. Co., 268 Mo. 667, 187 S.W. 1165; Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Zumwalt v. Chicago & A. Ry. Co., 266 S.W. 717; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Perkins v. Terminal Railroad Assn., 340 Mo. 868, 102 S.W.2d 915; Homan v. Mo. Pac. Ry. Co., 344 Mo. 61, 64 S.W.2d 617; Tharp v. Thompson, 139 S.W.2d 1116. (a) Defendant did not stand on his demurrer at the close of the case, but offered evidence, and thereby waived the contention that no case was made for the jury. Evans v. Farmers' Elevator Co., 147 S.W.2d 593. (2) The evidence and all the surrounding circumstances warranted the jury in finding that neither one of deceaseds survived the other. Aley v. Mo. Pac. Ry. Co., 211 Mo. 460, 111 S.W. 102; Garbee v. St. Louis-S. F. Ry. Co., 220 Mo.App. 1245, 290 S.W. 655; Supreme Council of Royal Arcanum v. Kacer, 96 Mo.App. 93, 69 S.W. 671; Abrams v. Unknown Heirs of Rice, 317 Mo. 216, 295 S.W. 83. (a) Defendant, not having questioned the administrator's right to sue, either by demurrer or answer, has waived that question. Sec. 926, R. S. 1939; State ex rel. Talbott v. Shain, 334 Mo. 617, 66 S.W.2d 826; Baxter v. St. Louis Transit Co., 198 Mo. 1, 95 S.W. 856. (3) The court erred in instructions given at the instance of defendant. Instructions 7 and 8 injected contributory negligence into the case, which was error under the following decisions: Bona v. Luehrman, 243 S.W. 386; Lynch v. Baldwin, 117 S.W.2d l. c. 276; Mayfield v. Kansas City So. Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113; Silliman v. Munger Laundry Co., 329 Mo. 235, 44 S.W.2d 159; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809; Willhauck v. Chicago, R. I. & P. Ry. Co., 332 Mo. 1165, 61 S.W.2d 336. Instructions 4, 5, and 6 were erroneous for reasons set forth in the argument.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

Action for penalty for wrongful death. After verdict for defendant, a new trial was granted on account of errors in instructions, and defendant appealed. We have jurisdiction, because the amount sued for is $ 10,000.

Ella Shelton and her husband were instantly killed at a public grade crossing in Lawrence county on May 23, 1937, when the 1936 Chevrolet coupe in which they were riding was struck by one of defendant's trains. This suit was instituted by the administrator of Mrs. Shelton's estate on the theory that her husband did not survive her and that her nearest surviving relatives were her brothers and sisters. The cause was submitted on negligence under the humanitarian doctrine in failing to stop or slacken the speed of the train. Appellant first contends that plaintiff (respondent) failed to make out a case for the jury; that the demurrer to the evidence should have been sustained; and that, therefore, the new trial should not have been granted.

Defendant's tracks are straight for over a mile, extend northeast (more east) from La Russell and there is a slight upgrade. The gravel road between La Russell and Bowers Mill runs east from La Russell for one-half mile to a corner and then turns north crossing defendant's tracks almost at right angles. It is downgrade from this corner to within 400 or 500 feet of the crossing, then level to a point within fifty or sixty feet of the crossing, then upgrade for fifteen feet (a rise of three or four feet) to the south end of a twenty-four-foot wooden bridge. This bridge was old with some of the planks loose. It was eleven to twelve feet in width, only wide enough for one car, and had timbers extending lengthwise on each side of the bridge, forming a kind of rail or bannister. From the north end of this bridge it is upgrade for ten to fifteen feet (a rise of two feet), to the level of the track. North of the crossing the road runs downgrade and across a similar bridge. The crossing was marked with the usual crossing sign. West of the crossing defendant's tracks were on an embankment seven or eight feet above the surrounding land. As one approached the crossing from the south the view of defendant's tracks on the embankment to the west was unobstructed. From a point on the railroad one-fourth mile west of the crossing, the road was in plain view for more than 100 feet south from the crossing. According to defendant's evidence, from a point 250 feet south of the crossing there was a clear view of defendant's tracks for 1150 feet to the west and, as one approached the crossing, the view of the tracks increased gradually until when one was within seventy-five feet of the crossing there was a clear view for 2400 feet. The view of the gravel road from the tracks was equally unobstructed.

Mrs. Shelton was sixty-five years of age, and was somewhat hard of hearing. She could see fairly well, although she had a cataract on one eye and sometimes was unable to recognize her acquaintances, until she heard them speak. She was driving the automobile on this occasion, and drove regularly. She and her husband resided on a farm in Jasper county. They had attended the morning church services at La Russell and were going home, about 12:40 p.m. It was a clear day, the road was dry and visibility was good. The automobile was traveling north at about fifteen miles per hour, and the windows of the automobile were closed. The train, consisting of an engine, tender and two passenger coaches, was traveling east at fifty-five miles per hour. The train struck the automobile on the crossing. After the collision the automobile was fifty feet east of the east cattle guard and twenty feet north of the tracks. It was practically torn to pieces. The back fender on the left rear side of the automobile was "knocked off and dented in." The body of the car was dented and the tire of the left rear wheel knocked off. One of defendant's witnesses said the engine struck "the rear end" of the automobile. There was a mark along the center of the track, between the rails east of the crossing, where something had dragged. Mr. Shelton's body was found in the automobile and Mrs. Shelton's body was on the north side of the track east of the east cattle guard. Both parties were dead when the witnesses reached the scene of the collision.

Plaintiff called defendant's engineer as a witness. He testified that he was at his position, seated on the right side of the cab; that the train was traveling fifty-five miles per hour; that he could see the crossing for half a mile; that he saw the automobile when he was 500 feet away, "maybe a little more," from the crossing; that it was then 50 or 100 feet south of the crossing; that it was traveling "about 15 miles an hour, just a rough guess;" that it "just kept proceeding, . . . without stopping and showing no indication of stopping;" that he didn't notice any slackening of speed or indication that it was going to stop or that the driver saw the train; that the train struck the automobile "from the middle to the back" on the crossing; and that the train stopped 500 feet or more beyond the crossing.

On cross-examination he said that the bell was ringing; that he had given the regular crossing whistle, beginning a quarter of a mile west of the crossing; that, when he saw the automobile approaching and giving no indication of stopping he sounded the alarm whistle, excessive and short blasts of the whistle, and continued them until after the engine passed over the crossing; that, when he saw that the automobile was not going to stop, he put on the emergency brakes; that he determined the automobile was not going to stop when the train was 500 feet or more from the crossing and when the automobile was 40 or 50 feet from the tracks; that he then put on the emergency brakes and gave the blasts of the whistle; that it takes two or three seconds for the air brakes to apply after you turn the emergency valve on; and that he knew this fact as he approached the crossing. He further said the brakes slowed the train to forty miles per hour by the time it reached the crossing and that he left the brakes on until the train came to a stop, as quickly as a stop could be made, beyond the crossing. He said he saw the automobile after it came...