McGee v. Wabash R. Co.

• Decision Date: 25 November 1908
• Parties: McGEE et al. v. WABASH R. CO.
• Court: Missouri Supreme Court

114 S.W. 33

214 Mo. 530

McGEE et al. v. WABASH R. CO.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. DEATH (§ 103)—ACTION FOR DEATH OF CHILD—CONTRIBUTORY NEGLIGENCE OF PARENT—QUESTION FOR JURY.

In an action by parents for the death of a child at a railroad crossing, whether the parents were guilty of contributory negligence in permitting him to go upon the track held for the jury.

2. RAILROADS (§ 316)—OPERATION—CROSSING ACCIDENTS — MODE OF RUNNING TRAINS — SPEED.

It is not negligence for passenger trains to run at a high speed over railroad crossings in the country.

3. NEGLIGENCE (§ 83)—ACTS CONSTITUTING NEGLIGENCE—"LAST CLEAR CHANCE DOCTRINE."

The "last clear chance doctrine" applies to the facts of the particular case, and the doctrine is applicable if it appears that plaintiff was negligent and the defendant was not negligent in bringing about the dangerous situation, but saw or might have seen plaintiff's peril in time to prevent the injury.

For other definitions, see Words and Phrases, vol. 5, p. 4006.]

4. RAILROADS (§ 338)—CROSSING ACCIDENTS —NEGLIGENCE—LAST CLEAR CHANCE.

Where a fireman could not see a boy on the crossing when he was more than 300 to 400 feet distant, and did not in fact see him, and the train was running at about 50 miles per hour, so that it would pass over that distance in about 5½ seconds, the last clear chance doctrine did not apply, so as to make the fireman negligent in not seeing the boy or calling the engineer's attention to his presence on the crossing.

5. RAILROADS (§ 346)—CROSSING ACCIDENTS —BURDEN OF PROOF—FAILURE TO GIVE SIGNALS.

In an action for injuries at a railroad crossing, the burden was on plaintiffs to show that defendant's employés were negligent in failing to give crossing signals.

6. NEGLIGENCE (§ 121) — ACTIONS — PROXIMATE CAUSE OF INJURY.

In actions for injuries caused by negligence, plaintiff must show by direct or circumstantial evidence that the negligence complained of caused his injury.

7. RAILROADS (§ 350)—CROSSING ACCIDENTS —ACTIONS—QUESTION FOR JURY.

In an action for injuries at a railroad crossing, where some of plaintiffs' witnesses testified that crossing signals were not given, but another of their witnesses, defendant's engineer, testified that they were given, whether they were in fact given was for the jury.

8. TRIAL (§ 156)—DEMURRER TO EVIDENCE.

On demurrer to the evidence, the testimony must be considered in the light most favoring the adversary of the demurrant.

9. RAILROADS (§ 348)—CROSSING ACCIDENTS —ACTIONS—PROOF—PRIMA FACIE CASE.

In an action for the death of a boy at a railroad crossing, the existence of some evidence tending to show that crossing signals were not given, together with the conceded facts that the boy was killed, made out a prima facie case for plaintiff under Rev. St. 1899, § 1102 (Ann. St. 1906, p. 938), making railroads liable for damages at crossings, when crossing signals are not given as required, but permitting the company to show that its failure to give signals was not the cause of the injury, since, under the statute, plaintiff need not show that the failure to give signals was the proximate cause of the injury.

10. RAILROADS (§ 346)—CROSSING ACCIDENTS —ACTION—BURDEN OF PROOF—CAUSE OF INJURY.

Rev. St. 1899, § 1102 (Ann. St. 1906, p. 938), making railroads liable for damages resulting from failure to give crossing signals, but permitting it to show that its failure to give such signals did not cause the injury, raises the presumption that the injury was the result of disobeying the statute, and places the burden upon the company to show that its failure to give signals did not cause the injury.

11. RAILROADS (§ 348)—CROSSING ACCIDENTS —ACTION—BURDEN OF PROOF—SUFFICIENCY OF EVIDENCE.

Though the statute places the burden on a railroad to show that its failure to give crossing signals did not cause the injury, the company need not show this fact by its own testimony, but it may appear from plaintiff's proof, which may show that he himself was guilty of contributory negligence.

12. NEGLIGENCE (§ 141) — CONTRIBUTORY NEGLIGENCE — NEGLIGENCE OF CHILD — INSTRUCTIONS.

The contributory negligence of a child should be determined by standards applicable to a child and not to a man, and in framing instructions upon such question the degree of care required of a child should be proportionate to his age and mental capacity.

13. NEGLIGENCE (§ 136)—ACTS CONSTITUTING NEGLIGENCE—NEGLIGENCE OF CHILD— QUESTIONS FOR JURY.

Children may be declared incapable of negligence as a matter of law or capable of negligence as a matter of law, or whether they can be guilty of negligence may be a question for the jury, according to the particular circumstances and the age and capacity of the child.

14. NEGLIGENCE (§ 136) — CONTRIBUTORY NEGLIGENCE—ACTIONS—QUESTION FOR JURY —NEGLIGENCE OF CHILD.

Generally, whether a child can be guilty of contributory negligence is a question for the jury.

15. RAILROADS (§ 325)—CROSSING ACCIDENT — CONTRIBUTORY NEGLIGENCE — CARE REQUIRED OF CHILDREN.

Plaintiffs' son, a bright boy 13 years of age, was killed while attempting to cross a single-track railroad crossing in the country. When 6 feet from the crossing, an approaching train could be seen from 40 to 100 feet away, and the boy, when that distance from the train and from the crossing, walked across the track without looking for the approaching train. Held, in an action by the parents for his death, that the boy was guilty of contributory negligence as a matter of law, so as to bar a recovery.

Appeal from Circuit Court, Daviess County; J. W. Alexander, Judge.

Action by Charles M. McGee and another against the Wabash Railroad Company. From an order overruling a motion to set aside a voluntary nonsuit, and from a judgment for defendant, plaintiffs appealed. Affirmed.

J. A. Selby and E. M. Harber, for appellants. J. L. Minnis and Sebree, Conrad & Wendorff, for respondent.

LAMM, J.

Plaintiffs, the parents of Oscar McGee, a minor killed by one of defendant's passenger engines at a railroad crossing, known as "Long's Crossing," in Daviess county, grounding a cause of action on the negligence of defendant's train servants, sue to recover the statutory penalty of $5,000. At the close of plaintiff's case in chief, the trial court gave defendant an instruction in the nature of a demurrer to the evidence. There-at they took a voluntary nonsuit with leave. Failing to get it set aside on motion, they appeal.

The petition counts on the following specifications of negligence, viz.: (1) A negligent failure to give the statutory crossing signals of bell or whistle. (2) Running its train at a reckless and dangerous rate of speed, environment considered. (3) A negligent failure to avoid the death of Oscar after defendant's servants running the locomotive and train saw, or by the exercise of ordinary care and diligence could have seen, him in peril in time to have saved his life. The answer is a general denial, coupled with two allegations of negligence, viz.: One, an averment of Oscar's contributory negligence in attempting to cross defendant's railroad track without looking or listening for the approach of a train; the other, the negligence of plaintiffs in permitting Oscar to so cross defendant's track. The reply was conventional.

The case on the facts is this: Oscar McGee was the rise of 13 years in age. Plaintiffs' counsel submit the case to us on the theory that he was a bright boy for that age and endowed with all his natural senses. He was shown to be familiar with railroad tracks and the running of trains. His father on cross-examination was asked: "Q. What caution did you give your boy about the train?" His answer was: "Well, I did not give him any particular caution, for I never knowed him to ever fall or play or stay around here, because he was very careful and scary of a train; it was hard to get him to go about a train, something that he never did to my knowledge, and I never thought to caution him." His mother on cross-examination was asked: "Q. What warning did you give him about the train, if any?" Her answer was: "I did not give him none, for he did not need it; he was afraid of a train; he never bothered with the train, and he never went about them; * * * he was the most cautionate boy about a train, I reckon, that ever was, pretty near it, and I did not think to give him any."

Long's crossing is in the country. There, defendant's track runs north and south cutting the Gallatin and Jameson public dirt roads at right angles, and very nearly on a grade—the dirt road elevated a trifle to make it. The situation at Long's crossing is but dimly outlined in the testimony. As well as we can make out, at a distance north of the crossing was a hill or ridge on the east side of the track, the latter hugging the foot of the hill and leaving a flat country on the other side, at that time a cornfield. We infer, too, that the track cut into the foot of this hill (broken by draws) at intervals north of the crossing. Whether there was a cut at the crossing is not clear, but we infer there was none. However that be, because of the hill towards the north and because of a curve, or curves, in the track to the north, a person standing at the east rail could see 400 feet up the track, and standing 6 feet east of the rail such person could see from 40 to 100 feet up the track.

The McGees lived north of the Gallatin and Jameson road. From their house to the front gate on the road side, it was 20 or 30 feet. From this front gate west to Long's crossing was, say, 100 feet, and this front gate was, say, 15 or 20 feet higher than the railroad track. The McGees were renters, and had lived in that house but a week prior to the accident. They used the time schedule of trains to correct their clock, and the family were familiar with the time of regular trains. The train in question was a regular passenger train running south, and...