Moore v. St. Louis & S. F. R. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Arnold
• Citation: Moore v. St. Louis & S. F. R. Co., 283 S.W. 732 (Mo. App. 1926)
• Decision Date: 01 March 1926
• Docket Number: No. 15523.,15523.
• Parties: MOORE v. ST. LOUIS & S. F. R. CO.

283 S.W. 732

MOORE v. ST. LOUIS & S. F. R. CO.

No. 15523.

Kansas City Court of Appeals. Missouri.

March 1, 1926.

Certiorari Denied May 21, 1926.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

"Not to be officially reported."

Suit by Nellie Moore against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff and defendant appeals. Affirmed.

E. T. Miller, of St. Louis, John H. Lucas and Wm. C. Lucas, both of Kansas City, and W. 0. Jackson and D. C. Chastain, both of Butler, for appellant.

James H. Wilson, of Butler, James A. Parks and C. A. Calvird, Jr., both of Clinton, and Thos. W. Silvers, of Butler, for respondent.

ARNOLD, J.

This is a suit in damages for the death of plaintiff's husband, Chester M. Moore, resulting 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 a change of venue, where it was tried to a jury, resulting in a verdict for plaintiff in the sum of $5,000. On appeal the judgment was reversed and the cause remanded by this court on December 29, 1924, and is reported in 267 S. W. 945, to which opinion we now refer for a detailed statement of the facts.

The petition upon which the former trial was based charged general negligence of defendant, its servants and employees, in failing to give statutory warning by sounding the whistle or ringing the engine bell. The petition also pleaded a violation of the humanitarian or last clear chance doctrine. The answer was a general denial and also a charge that plaintiff's husband was guilty of contributory negligence as a matter of law so as to preclude recovery. This court held that, under the evidence of record, plaintiff failed to support the charge of general negligence, and that plaintiff's husband was guilty of contributory negligence as a matter of law. But under that part of the petition alleging a violation of the humanitarian rule, or last clear chance doctrine, this court held there was no evidence of record to show whether there was sufficient time, after the automobile in which Moore and his son were riding was discovered by defendant's employees in charge of the train, for the engineer to have sounded an alarm and thereby warn the driver of the automobile in time for him to have brought the car to a stop and thereby have avoided the collision; and that this phase of the case was covered by the pleadings. The judgment was reversed and the cause was remanded on this ground. The case was retried in accordance with said opinion, and the result was a judgment for plaintiff in the sum of $6,500. Motions for a new trial and in arrest of judgment were overruled, and defendant appeals.

The record in the present appeal shows that the evidence adduced is the same as that presented at the former trial, with the exception that there is now testimony tending to show the exact distance from the railroad track of the last house on the north side of the public road east of the crossing where the collision occurred. This evidence consisted, in part, of a plat which was identified, showing that from the west line of said house to the east rail of the railroad track at the crossing was 60 to 61 feet; and that the house is 40 to 45 feet north of the north line of said public road.

The fireman, who was on the east side of the engine, testified he saw the automobile come out from behind the house, which is referred to in the evidence as the Anse Corey house, and that he called to the engineer to look out for the car; that the engineer failed to understand him at first, but on a second warning the engineer applied the brakes. Both fireman and engineer testified the train was from 100 to 150 feet north of the crossing at the time of the occurrence just mentioned. The fireman testified that the automobile was 60 to 90 or 100 feet east of the crossing when he called to the engineer.

In addition to the testimony of the engineer and fireman, and corroborative thereof, was the evidence of Thomas B. Parks, county surveyor of Henry county, who, testifying from a plat introduced in evidence, showed that at a distance of 175 feet north of the crossing, the fireman could have seen the automobile on the road 100 feet east of the crossing. That is to say, at a distance of 175 feet up the track, the fireman's angle of vision would have extended to a point east of the Corey house and 100 feet east of the railroad track; that this angle of vision would increase as the train approached the crossing. There is testimony tending to show that in this situation the whistle of the locomotive was not sounded nor was the bell rung.

Ray Mills, former circuit clerk of Henry county, testifying on this point, stated he wag standing on his porch, a distance of 1,000 feet east of the crossing and 150 feet north of the public road; that he had an unobstructed view of the railroad track for a distance of a quarter of a mile north of the crossing; that he watched the train from the time it passed the Franklin street crossing, 1,395 feet north of the scene of the accident, until it reached a point where his vision was obstructed about 100 feet north of the Ohio street crossing; and that at no time while he thus watched was the whistle sounded or the bell rung.

Corroborative, of this evidence is the statement, also in, evidence, that just at the time of the collision another automobile was approaching the crossing, from the west. In the rear seat were J. B. Chastain and his wife, and in front was their daughter, Mrs. Cecil, and their nephew, Mr. De Dozier. Chastain, Mrs. Cecil, and De Lozier testified they did not hear the approaching train "until it shot across" the road in front of them, and that no whistle was sounded nor bell rung. Mrs. Chastain was not present at the trial and did not testify.

On the question of the length of time required for an engineer to collect his faculties, pull the cord, and blow the whistle, plaintiff introduced as a witness Mitchell Finnegan, a railroad fireman and engineer for 40 years, and T. J. Gallivan, a railroad engineer for 13 years. Both these witnesses testified that for the performance of the things just stated, it would require not more than one second, and that it would require about the same time to start the bell ringing. In addition to the statements by these two witnesses, it was stated by Mr. Shaw, engineer of the train in question, on cross-examination, that it would take him half a second to a second of time to jerk the cord and sound the whistle.

At the opening of the second trial, counsel for defendant objected to the reading of the petition to the jury upon the ground, as he stated, that in the original opinion (267 S. W. 945), this court held that the only question to be decided at this trial was whether the engineer saw plaintiff's husband in a position of peril and failed to stop the train in time to have avoided the collision. The statement was controverted by plaintiff's counsel, and defendant's objection was overruled. This ruling of the court defendant now assigns as error, and the point involved may as well be decided now as later.

A careful reading of the former opinion will show that defendant is in error in stating that this court held therein that the only question for determination was whether the train could have been stopped in time to avert the accident. What we then held, and what we now hold, is that the question to be determined is whether the train could have been stopped, its speed slackened, or a warning signal sounded, so that the driver of the automobile might have stopped his car and thus avoided the collision. The trial court instructed the jury, at the request of defendant, that there was no evidence that the engineer could have stopped his train in time to have avoided the collision. We must hold therefore that there was no error in overruling defendant's objection.

The sole question submitted to the jury was whether a warning signal could have been sounded by blowing the whistle, or ringing the bell, after plaintiff's husband was seen in a position of peril, and apparently oblivious thereto, in time for the driver of the automobile to have stopped his car and thereby have averted the collision.

It is charged the...