Messer v. St. Louis-San Francisco

• Decision Date: 01 July 1925
• Docket Number: No. 3820.,3820.
• Citation: 274 S.W. 864
• Parties: MESSER v. ST. LOWS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

274 S.W. 864

MESSER v. ST. LOWS-SAN FRANCISCO RY. CO.

No. 3820.

Springfield Court of Appeals. Missouri.

July 1, 1925.

Rehearing Denied July 27, 1925.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

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

W. F. Evans, of St. Louis, Mann & Mann, of Springfield, and Grayston & Grayston, of Joplin, for appellant.

Sizer & Gardner, of Monett, and Hugh Dobbs, of Joplin, for respondent.

BAILEY, J.

This suit was brought by the widow of Alonzo Messer to recover the statutory penalty for the death of her husband, which occurred while he was riding in the front seat of an automobile, owned and driven by another man, and was occasioned by defendant's freight train striking said automobile at what is known as the Zincville crossing, some four miles north of Carl' Junction, Jasper county, Mo. The jury returned a verdict in plaintiff's favor for $5,000, and, after an unsuccessful motion for new trial, defendant has appealed.

Defendant offered a demurrer to the evidence at the close of plaintiff's case, and again at the close of the whole case, which was overruled. Defendant, after setting up numerous alleged errors in its motion for new trial, has elected to stand solely on the proposition that the trial court committed error in overruling its demurrer to the evidence. Plaintiff concedes her deceased husband was guilty of contributory negligence, which would bar recovery, unless a case is made under the humanitarian rule.

The petition charges three distinct grounds of negligence, as follows:

(1) Failure to ring a bell as the crossing was being approached, when defendant's agents, etc., knew, or by the exercise of ordinary care could have known, of the peril of plaintiff's husband in said car in time to have avoided the collision by giving timely warning by ringing the bell.

(2) Failure to sound whistle under the same circumstances.

(3) Failure to stop or slacken the speed of the train when they knew, or by the exercise of ordinary care could have known, of the perilous position in which plaintiff's husband was situated, in time to have avoided injury to plaintiff's said husband, "as the view at said crossing was unobstructed as cars would approach same, and as the car was standing upon said track a sufficient length of time that said train could have been stopped, or the speed thereof slackened, in time to have avoided injury to and death of plaintiff's husband."

There is a further allegation that, as the car approached the crossing, it was in plain view of any train that might be coming from the north and running south and over said crossing, and that the car, in which plaintiff's husband was riding, stopped upon the main line track in plain view of any one upon a locomotive approaching from the north upon a straight track, and that her husband was unaware of his peril.

Defendant strongly urges that, under this petition, plaintiff has charged defendant with no duty, or breach thereof, to have discovered the automobile, or the peril of the occupants thereof, as it approached the track, but only after it had come to a complete stop. We do not understand defendant to contend, however, that under the petition defendant was charged with no duty to keep a lookout at this public crossing, but that the peril, as described in plaintiff's petition, never became real or apparent until the car actually stopped; that therefore no duty devolved upon defendant's servants until that very moment. We believe the petition alleges enough to at least impose a duty on defendant from the time Wright's car in which decedent was riding, slowed down, if it did, on defendant's track, and such was the theory adopted by the trial court in its instructions.

The evidence discloses that between 6:30 and 7 o'clock on the morning of December 7, 1923, plaintiff's husband, Alonzo Messer, was riding on a public road in a touring car, seated in the front seat beside the driver, J. R. Wright, with two' other men in the rear seat. At a point some 4 miles north of Carl Junction, defendant's road runs almost due north and south, and parallel to it, but about 100 feet west, is a street car line running to Pittsburg, Kan. The public road on which plaintiff's intestate was driving crosses both tracks at this point almost on a level and at right angles. The crossing is much used for travel by cars carrying miners to their work near Waco; the evidence showing that between 6 and 7 o'clock in the morning 75 to 150 machines passed over this crossing, and had each day for some time prior to the collision. Defendant's freight train approached from the north, going south, at a rate of speed estimated by the engineer at 27 to 30 miles per hour. The automobile was going west, approaching said crossing. The accident occurred at about 6:40 a. m., when it was yet dark. At this particular time a streetcar, with inside lights on, was standing north of the public road, backed in on a switch track, headed north, awaiting a south-bound car. A number of plaintiff's witnesses were on this car. The south-bound street car approached the crossing from the north at the same time as defendant's train, although some distance in the rear thereof. The headlights on both the train and south-bound street car were burning brightly.

As Alonzo Messer, with the other miners, approached defendant's crossing in Wright's car, they were preceded by another car, driven by one C. M. Byrd. The Wright car was following very closely behind the Byrd car. At the time Byrd reached the railroad crossing, he was traveling not to exceed 10 miles per hour, slowing down for the street car track. He discovered the defendant's train after he was, on the track, having his mind on the street car. Byrd testified that, as the rear end of his machine had not much more than crossed defendant's track, he heard one blast of the whistle from defendant's train; that he then looked and saw the headlight of the train; that the train was something like 250 feet away at that time; that he slowed down between defendant's track and the street car track to about 3 miles per hour, and he had to "go into low to get over the top"; that the front wheels of his car were about to the, main line of the street car when he heard the crash of the collision; that there was a slight grade as the public road went off the railroad crossing, and he had put on his brakes, so he was traveling very slowly. On cross-examination, he stated that he was "chilled" by the excitement as he crossed the railroad track. He was asked this question, in regard to the distance away of the train.

"Q. When you say 200 or 250 feet away, you don't know how far it was, do you? A. No, sir; I don't."

Wright testified that he was driving very close to Byrd, and just as he came up to defendant's track was about to bump into Byrd's car, and to avoid running into him he kicked the clutch out and stopped his car, which was then standing with its rear end on defendant's track, with the engine running. No word was spoken by Messer. Wright did not know his car was stopped on the track, or that defendant's train was approaching, and while watching Byrd, to see what he was going to do, remained in that position until Byrd's car reached the street car track, when the crash came; that he heard no bell rung or whistle sounded. On cross-examination he testified he was not much more than moving as he came upon the Frisco track; that at that time his car was within half a car length of Byrd's; that he pushed the clutch down with his foot, disengaged the engine, leaving the gear "in high"; that when he stopped the back end of Byrd's car was not over 2 feet in front of his car.

H. E. Slevins, the head brakeman on this train, testified (adopting defendant's statement) that, as the train approached the crossing, the fireman was in the gangway of the engine putting in a fire, and was therefore in a position where he could not see ahead; that he (Slevins) was sitting on the left-hand side of the cab of the engine on the brakeman's seat box; that as they approached this crossing he looked ahead, and saw an automobile cross ahead of the engine. This was Byrd's automobile. A short time before that the engine had sounded the crossing whistle, and then repeated the crossing whistle, which whistle was just about completed when Byrd crossed the track. When he crossed, this witness looked toward the engineer and asked him if he got across. The engineer replied that he did, and that he had plenty of time.

When this automobile crossed, the engine "was right at the crossing." After asking the engineer if this automobile got across, he looked ahead and for the first time saw the automobile which was struck. "Just as I turned my head back I saw the tail light as it went in front of the...