Moore v. St. Louis & S. F. Ry. Co.
| Decision Date | 29 December 1924 |
| Docket Number | (No. 15179.) |
| Parties | MOORE, v. ST. LOUIS & S. F. RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.
"Not to be officially published."
Action by Nellie Moore against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.
W. F. Evans, of St. Louis, and John H. Lucas and William C. Lucas, both of Kansas City, for appellant.
James H. Wilson, James A. Parks, and Chas. A. Calvird, Jr., all of Clinton, for respondent.
This is a suit in damages for the death of plaintiff's husband which resulted from a collision between an automobile in which he was riding and one of defendant's passenger trains. Suit was instituted in the circuit court of Henry county, but went to Bates county on change of venue, where it was tried to a jury, and plaintiff recovered judgment for $5,000.
The collision occurred on December 24, 1920, at a point where defendant's railroad crosses a public highway, about 411 feet east of the city limits of Clinton in Henry county. The highway runs east and west, and is intersected almost at right angles by the railroad track, the latter running 12½ degrees east of south at this point.
The record shows deceased was a farmer 58 years of age, and lived on a farm about three miles north of Clinton where he was engaged in farming and dairying. His family consisted of his wife, a married daughter not living at his home, a son, Roy, 17 years old, and a daughter younger.
About 1 o'clock in the afternoon of the day of the accident, deceased and his son were driving from the east toward Clinton in a Ford touring car having on the transparent curtains. Both were in the front seat, Roy on the left doing the driving. The car was driven upon the track, and one of defendant's passenger trains collided with it, demolishing the automobile and injuring Chester M. Moore to such an extent that he died the following day.
The petition charges negligence of defendant, its servants and employees in that they failed to give the statutory warning by sounding the locomotive whistle or ringing the engine bell. The amended answer is a general denial and a plea of contributory negligence. The abstract of the record filed by defendant states "there was no reply filed to the amended answer," but plaintiff's additional abstract discloses that a reply in the nature of a general denial was filed on May 28, 1924, the same day the amended answer was filed. However, the fact is immaterial now, as the case was tried as though such reply had been duly filed.
The testimony shows the track of defendant passes outside the east limits of the city of Clinton at a point several blocks north of the scene of the accident, and proceeds in almost a southerly direction from said point of exit. Two public thoroughfares lead eastward from said city limits, the north one, an extension of Franklin street known as the Sedalia Road and the other an extension of Ohio street known as the Alberta Road. The latter is the one concerned in this case. Between Franklin and Ohio are two streets which end at or near the west line of defendant's right of way. Franklin and Ohio streets therefore are three blocks apart. Whistling posts are maintained by defendant at the Franklin and Ohio street crossings, the one for Ohio street being located just south of the Franklin street crossing, and 1,395 feet distant from the point where the accident occurred.
In addition to the charge of general negligence in failing to sound an alarm by blowing the whistle or ringing the bell, the petition charges a violation of the humanitarian, or last-chance rule. The evidence shows there is a down grade from Franklin to Ohio street and that the train was coasting there at the time of the accident. The engineer and fireman testified that the train was running at a speed of 20 to 25 miles an hour, but there was other testimony that it was "running very fast." Roy Moore testified that the automobile was being driven, at about 12 to 15 miles per hour. Defendant's right of way at the Ohio street crossing is shown to be 100 feet in width, and there is no charge that there are any obstructions to vision in the way of weeds or brush on the right of way. There is evidence however that at or near the right of way, and on the east side thereof, there are some small trees which tend to obscure the view of the right of way to the north, and also that there were some small buildings on the east near the line of the right of way, and some other buildings farther east of the right of way, and a few feet north of the public highway, which would tend somewhat to interfere with the view of the track northward of persons approaching from the east.
The case was tried to a jury, resulting in a verdict for plaintiff as above indicated, and after unsuccessful motions for a new trial and in arrest, defendant appeals. In seeking reversal of the judgment defendant charges that the court erred in submitting the case to the jury, and that the demurrer to plaintiff's evidence should have been sustained. As above stated, the petition is based on two alleged acts of negligence.
It is insisted there was no evidence to substantiate the first charge, but an examination of the additional abstract of the record furnished by respondent, discloses that there was substantial proof that the whistle was not sounded nor the bell rung. The driver of the car, Roy Moore, testified positively on this point, as follows:
This witness also testified:
"
On this point, and on plaintiff's behalf, we have the testimony of Ray Mills, circuit clerk of Henry county, who testified positively that he was standing on the north porch of his home which stands 150 feet north of the highway, and about 1,000 feet from the crossing, from which point he had an unobstructed view of the track, and that he, spay the train coming from the time it crossed Franklin street (1,395 feet from the Ohio street crossing) until his view was shut off by the obstructions when the train reached a point 100, feet north of the scene of the accident; that he watched the train approaching, and at no time for that distance was the whistle blown or the bell rung.
There was another automobile approaching the crossing at Ohio street about the time of the accident, driven by one Delozier who testified that his car had reached a point within approximately 150 feet west of the railroad track; that the train cut across the road before he knew it was coming; that he was looking and listening for a train, but heard none, and that no bell was rung nor whistle sounded. He testified that in the car with him were his uncle and aunt (Mr. and Mrs. J. B. Chastain), and their daughter, Laura (Mrs. Cecil). Mr. Chastain testified the train "was running awful fast," and that he heard no whistle sounded nor bell rung. Mrs. Cecil testified that she heard no bell rung nor whistle blown.
The engineer and fireman in charge of the train testified the whistle was blown at the whistling post for Ohio street, located at or near the Franklin street crossing, and that the bell was rung. But in passing on the demurrer we must consider only the testimony most favorable to the cause of action. There is substantial and positive evidence that the bell was not rung nor the whistle sounded, and the court's ruling in permitting the case to go to the jury on this question was proper. Citations are deemed unnecessary in support of this elementary rule.
It is urged that deceased was guilty of such contributory negligence as to preclude his recovery as a matter of law. This question requires reference to plaintiff's evidence as to the conditions surrounding the accident. It appears that in approaching the crossing from the east on the Alberta road, the view toward the direction from which the train was coming was obstructed by buildings and trees east of the right of way and adjacent thereto, and about 50 feet north of the highway. The right of way is shown to have been 100 feet in width, and the single track of the railroad was approximately in the center of the right of way, thus placing the obstructions about 47½ to 50 feet east of the east rail of the track.
The testimony shows that the whistle was net sounded after passing the whistling post for the Ohio street crossing, which was located at or near the Franklin street crossing, a distance of 1,395 feet, or approximately a quarter of a mile. There was also testimony to the effect that the train was coasting at the time and making little, if any, noise, and that the bell was not rung nor any other warning signal given between those two points.
It is not disputed that the railroad at the place of the accident was outside the city limits. Therefore the law regulating the operation of trains outside of cities applies. It must be held that the proof tends to show that defendant was guilty of negligence. However, the rule is well established that it is the duty of a traveler in approaching a railroad crossing both to look and to listen. The testimony of Roy Moore, the driver of the automobile, was that both he and his father looked and listened, and neither...
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