McFadden v. Baldwin

• Citation: 119 S.W.2d 36
• Decision Date: 05 July 1938
• Docket Number: No. 5865.,5865.
• Parties: McFADDEN v. BALDWIN et al.
• Court: Court of Appeal of Missouri (US)

119 S.W.2d 36

McFADDEN v. BALDWIN et al.

No. 5865.

Springfield Court of Appeals. Missouri.

July 5, 1938.

Rehearing Denied August 10, 1938.

Appeal from Circuit Court, Stone County; Robert L. Gideon, Judge.

"Not to be published in State Reports."

Action by Eleanor McFadden against L. W. Baldwin and another, trustees of Missouri Pacific Railroad Company, for death of plaintiff's husband, who was killed when train struck automobile at grade crossing. Judgment for plaintiff and defendants appeal.

Reversed and remanded with directions.

F. M. McDavid and F. W. Barrett, both of Springfield, George Thornberry and Rufe Scott, both of Galena, and Thos. J. Cole, of St. Louis, for appellants.

F. P. Sizer and W. J. B. Myres, both of Monett, for respondent.

FULBRIGHT, Judge.

This action was instituted by Eleanor McFadden in the circuit court of Lawrence county to recover damages for the death of her husband, Charles McFadden, who was killed in a highway-railroad intersection accident in the State of Kansas. The cause was tried in Stone county on a change of venue at the October term of circuit court, 1936, resulting in a verdict and judgment for plaintiff in the sum of $5,000. Motion for a new trial was overruled and defendants appealed.

Plaintiff alleged that her husband lost his life because of the negligence of the defendants, the grounds of negligence relied upon being (1) failure to give the statutory signal for sounding the whistle on the locomotive, (2) failure to comply with the Kansas statutes regulating the placing and maintaining of crossing sign boards, and (3) in running the train at a dangerous and reckless rate of speed over the crossing. The answer contained a general denial and a plea of contributory negligence of the deceased, and that the sole cause of the collision was due to the negligence of the driver of the automobile. The reply specifically denied all new matter set up in defendants' answer.

The following by defendants seems to be a fair, clear and concise statement as reflected by the whole record, and which, with some modifications, we adopt:

The scene of the accident complained of was at a railroad crossing just east of Niotaze, a small town in the southern part of the State of Kansas, where state highway No. 166 crosses the railroad tracks of the Missouri Pacific Railroad.

On November 22, 1933, the deceased, McFadden, Clement Wood and his son, Norman Wood, were driving east on highway No. 166 in a Plymouth coach. Clement Wood, age 61, was the driver, and his son, Norman Wood, about 40 years of age, occupied the front seat, and the deceased, age 46, sat in the back seat on the right hand side. They had driven from their home at Tonkawa, Oklahoma, that morning and were on a trip to Missouri. They arrived at the crossing where the fatal accident happened about 9:45 a. m. The highway, at the crossing, runs east and west and the railroad runs from the southeast to the northwest and crosses the highway at an angle of about forty-five degrees. The train was approaching the intersection from the southeast and the automobile was approaching from the west.

A regular railroad cross-arms marked the crossing and was located on the north side of the highway and on the west side of the tracks of the railroad. To the east and on the south side of the highway about 300 feet from the crossing was a regulation Kansas state highway sign of a railroad. West of the railroad and south of the highway was a white house. It sat some little distance from the highway and 350 to 400 feet west of the railroad crossing. Both the railroad and the highway were straight for about a mile from the crossing in all directions.

To the west of the crossing was a concrete culvert bridge over the drainage ditch which highway No. 166 crosses in approaching the crossing. It was the width of the highway in length and at each end were banisters about three feet in height. The east end of the south banister was about forty feet from the west rail of the railroad.

The automobile came from the west, following a truck with a van. The truck stopped on the culvert or bridge to wait for the train to pass. The automobile went around the truck to the left and as it emerged from the front of the truck its occupants for the first time saw the oncoming train. The driver swerved the automobile to the right and left the pavement in front of the truck, went down the bank into the barrow pit, then turned sharply to the left, up the bank and onto the west rail of the track where the car contacted the locomotive of the train, forty feet from the south edge of the crossing. The car with its occupants was carried by the locomotive across the crossing and the engine was stopped about ten car lengths beyond the crossing. Charles McFadden lost his life as a result of the accident.

The first and chief complaint in this court is that the trial court committed error in not sustaining a demurrer to the evidence. Defendants did not stand on their demurrer interposed at the close of plaintiff's case, but introduced evidence tending to establish they were not negligent and that the deceased was guilty of contributory negligence. In this situation plaintiff is entitled to invoke to the aid of her case any favorable evidence from the whole record, whether offered by plaintiff or defendants.

As the cause of action arose in the State of Kansas the suit is based upon the laws of that state, which laws were duly pleaded by plaintiff and defendants. Therefore, the applicatory laws of Kansas, and not our own, should be administered, and in the same manner and degree as by the Kansas courts. Newlin v. Railroad Co., 222 Mo. 375, 121 S.W. 125.

The evidence regarding the negligence of the defendants is conflicting, and unless deceased was guilty of contributory negligence as a matter of law, this authorized a submission of the case to the jury. Charles McFadden was a guest in the car, and was not required to use the same vigilance as required of the driver, and was not charged with the driver's negligence. It was his duty to use that degree of care that a person of ordinary prudence would use under similar circumstances. The Kansas rule in regard to contributory negligence is much stricter and more rigid in enforcement as applied to railroad crossing cases than the Missouri rule. The evidence most favorable to plaintiff will be considered as true except where it is plainly contrary to physical facts and common knowledge.

C. E. Clements testified that previous to the accident he lived in the white house sixty yards west of the intersection, on the south side of highway No. 166; that at that point he owned the land on both sides of the highway; that the general condition of the country there was level; that there were three elms and a big ash tree a little north and east of the house and along the highway; that the trees were about twenty feet high and on November 22, 1933, had fairly thick brown leaves on them; that there were several outbuildings about his place; that along the highway were high weeds; that along the left going east kafircorn was standing probably six or seven feet high; that there were cross-arms on the north side of the highway to the driver's left and on the west side of the railroad tracks; that there were two big telephone poles on the other side of the cross-arms; that the lettering on the cross-arms was not plain, that it had been black and white; that after the wreck the main part of the automobile was 500 feet up the track northwest of the crossing on the west side of the track; that the cross-arms still stood up but were knocked over hardly half way; that in his judgment when the engine carried the car by it struck the post and pushed it over; that there were no other warning signs; and that the buildings, trees, corn and weeds obstructed the view of an approaching train and the railroad track, and that the view of the cross-arms was obstructed in a way by the banisters on the culvert and by the telephone poles. On cross examination he stated that one could see the cross-arms for quite a ways; that one in a car riding on the right hand side could see them if he was looking, but not distinctly, on account of the telephone poles on the other side of the cross-arms; that the telephone poles hid the cross-arms in a way, and in a way they did not; that "between a man sitting in a car and those cross-arms, all of the way from in front of my house down there, there would be nothing that would get between." With some criticism, and rather reluctantly, this witness said defendants' exhibits A and B, pictures of the crossing, highway and railroad near the crossing, were fair representations. This admission nullified much of his previous testimony, as the pictures clearly show that the weeds were not high, no kafircorn appeared along the highway at this point, a very few leaves, if any were on the four trees, and the cross-arms were plainly visible from a point several feet west of the house of the witness where the camera was sitting. The pictures were made the day after the accident and after the cross-arms had been straightened, and were admitted in evidence in the course of Clements' testimony without objection.

Jesse H. Feaster, the driver of the truck, testified that he had been crossing there twice a day for nearly two years before the accident; that he stopped on the west side of the crossing to wait for the train to pass; that he looked out and saw the train as he passed the house before he got by the trees; that "dry leaves do not obstruct your view, except the bodies of the trees themselves, and you could see between them as you went down. * * * These trees are to the east of the house, and north of it; they extended east of the house I would judge four or five yards. The rest of the distance from there on to the railroad, those railroad tracks are plainly visible. * * * Seems as though there was weeds. And sunflowers growed up...