Mundy v. St. Louis-San Francisco Ry. Co.

• Decision Date: 04 February 1932
• Docket Number: No. 4909.,4909.
• Citation: 45 S.W.2d 941
• Parties: MUNDY v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

45 S.W.2d 941

MUNDY v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 4909.

Springfield Court of Appeals. Missouri.

February 4, 1932.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

"Not to be officially published."

Action by Virginia Mundy against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

E. T. Miller, of St. Louis, and Phil M. Donnelly, of Lebanon, for appellant.

Sizer & Gardner, of Monett, for respondent.

BAILEY, J.

Plaintiff is the widow of Bryan Mundy, deceased, and brings this suit to recover damages for his death which occurred December 4, 1928, at about 5:30 p. m., when an automobile which he was driving was struck by one of defendant's passenger trains at a public crossing. The trial resulted in a verdict and judgment for plaintiff, and defendant has appealed.

Several grounds of negligence are stated in plaintiff's petition, but failure to give the statutory signal by ringing the bell and failure to blow the whistle and ring the bell under the common law were the grounds on which the case was submitted. Since a point is made as to the instructions not being in harmony with the pleadings, the paragraph of the petition charging negligence should be set out. It charges defendant with negligence, as follows: "(b) In that they failed to ring the bell on said locomotive engine as the same approached said crossing, and failed to sound the whistle thereon as required by law, and failed to give any notice or warning of the approach of said train. That said train was running down grade and making very little noise, and that the rays of the headlight of said locomotive, as the same came around said curve, fell to the north of said crossing, and did and could not fall upon said crossing until said locomotive was in close proximity thereto; and by reason of the darkness, fog, mist and rain, the visibility was poor and it was difficult for plaintiff's said husband to see or discover said headlight until the train was practically upon him; all of which facts were well known to the agents, servants and employees of the defendant operating said train, or by the exercise of ordinary care could have been known by them in time to have avoided injuring and killing plaintiff's husband."

Defendant pleaded contributory negligence and alleged further that every legal signal and warning required by law was given. The reply was a general denial.

Defendant offered an instruction in the nature of a demurrer to the evidence at the close of the whole case, refusal of which is assigned as error. This requires a review of the evidence, as to the facts and circumstances under which plaintiff's deceased husband was killed, in the light most favorable to her.

The accident occurred in the city of Marshfield, Mo., at a public street crossing where Turner street intersects defendant's railroad tracks. At this point the tracks, of which there were two, run east and west through Marshfield, and Turner street runs north and south. The railroad track curves to the southwest about 250 or 300 feet west of the crossing. There were buildings along the west side of the street to a distance of about 50 feet from the main line or south track, on which the accident took place. The evidence is overwhelming that it had been raining and misting and at the time of the collision a dense fog hung over the city and surrounding country, because of which facts it was practically dark at the time.

Plaintiff's witness R. R. Terrill testified: "It was terribly foggy; I don't believe I have ever seen a more foggy night; you couldn't hardly see the headlights on cars when they would pass." Witness Shupp testified it was "about as foggy as I have ever seen it in Marshfield." He was approaching the same railroad track at the time on a street one block east of Turner. He further said: "I could see the road all right, but I couldn't see very far ahead of me. I didn't notice any light thrown on the crossing as I approached it." Mrs. Laura Combs: "It was just a dense fog, is all I know to tell you; just as bad as it ever gets." Paul Appling: "It was a very bad evening; it was a heavy mist or fog and kind of drizzling rain. I was driving that evening,—the fog would get on the windshield of your car and it was pretty hard to see your way ahead. That fog prevailed for some time before this accident; it was bad all day." A number of other witnesses gave like testimony.

There was also abundant evidence on the part of plaintiff that no signal was given by whistle or bell as the train approached the crossing. The rumbling noise of the train was heard, however, by most of plaintiff's witnesses who lived, or happened to be, nearby the crossing.

Deceased was driving alone in a Chevrolet sedan. The crossing was slightly elevated. He approached the crossing from the south; the train, at the rate of forty or forty-five miles per hour, from the west. There were no eyewitnesses to the accident except defendant's engineer, who testified he saw the headlight of the car when it was 30 feet from the track and when his locomotive was 60 or 70 feet from the crossing and that the car approached at a rapid rate of speed and did not slacken its speed. (The humanitarian theory was not invoked in the case.)

Deceased was a rural mail carrier and had lived in Marshfield about four years. He was familiar with the crossing and his faculties were unimpaired. It is conceded there were no obstructions to his view of the track from a point about 50 feet therefrom as he approached, except telegraph poles, and, of course, the fog, mist, rain, and darkness.

For the purposes of this appeal we must accept as true that no signals were given by defendant's locomotive as it approached the crossing and that deceased was killed when the locomotive struck his car. Having produced such evidence, plaintiff made a prima facie case under our statute. Section 4756, R. S. Mo. 1929. In regard to this statute the Supreme Court, speaking through Judge Lamm, once said: "Under that statute, plaintiffs were relieved from proof that the failure to ring the bell or sound the whistle was the proximate cause of the injury. The statute supplies the causal connection. In other words, given proof of a failure to comply with the law, and that injury ensued at the crossing (as here), then the statute raises a presumption that the injury was the result of disobeying the statute—that they bore the relation of cause and effect—and the burden is cast upon the defendant to show that the failure to give the statutory signals did not cause the injury." McGee v. Railroad, 214 Mo. 530, loc. cit. 544, 545, 114 S. W. 33, 37. To the same effect are Todd v. St. Louis-San Francisco Railroad Co. (Mo. Sup.) 37 S.W.(2d) 557; Gann v. Ry. Co., 319 Mo. 214, 6 S.W.(2d) 39; Robertson v. R. R. Co. (Mo. App.) 264 S. W. 443.

Defendant relies upon the proposition that if one approaching a railroad crossing can discover a train by looking or listening and fails to do so, he is guilty of negligence as a matter of law, and, "if necessary, an automobilist must stop, look and listen in a safe place before crossing railroad tracks." It is further argued that what others heard and saw, deceased was charged with seeing and hearing, and if the prevailing fog or mist obscured his view he should have stopped his automobile, if necessary, in order to have ascertained whether or not a train was approaching; that under the facts deceased was guilty of contributory negligence as a matter of law, citing Schmidt v. R. R., 191 Mo. 215, 90 S. W. 136, 3 L. R. A. (N. S.) 196; Smith v. R. R. Co. (Mo. App.) 31 S.W.(2d) 105; Burge v. R. R. Co., 244 Mo. 76, 148 S. W. 925; Monroe v. R. R. Co., 297 Mo. 633, 249 S. W. 644, 257 S. W. 469; State ex rel. v. Bland (Mo. Sup.) 237 S. W. 1018, loc. cit. 1020; Freie v. R. R. Co. (Mo. App.) 241 S. W. 671, loc. cit. 674; Nichols v. R. R. Co. (Mo. App.) 250 S. W. 627; Morrow v. Hines (Mo. App.) 233 S. W. 493; and many other cases.

The authority of those cases is undisputed. The familiar principles therein enunciated stand firmly as the law of this state applicable to accidents occurring at railroad crossings. But in all those cases where the injured party has been declared guilty of contributory negligence as a matter of law, barring recovery, the opinion was based upon plaintiff's own evidence. In other words, unless plaintiff's evidence, considered in the most favorable light, destroys the prima facie case made by proof of failure to give the statutory signals, the question of contributory negligence is for the jury, although defendant's uncontradicted evidence may have been sufficient, if accepted as true, to convict deceased of contributory negligence as a matter of law. Toeneboehn v. St. Louis-San Francisco Ry. Co., 317 Mo. 1096, 298 S. W. 795, loc. cit. 803, 804. Under that rule, the engineer's testimony that deceased was driving at a rapid rate of speed does not control. The jury was not bound to accept any of defendant's evidence as true whether it stood unchallenged or not. This has been the rule in this state at least since it was so held in Gannon v. Gaslight Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505, and the authority of that case has been consistently followed. Ford v. Wabash Ry. Co., 318 Mo. 723, 300 S. W. 769, loc. cit. 778.

The question here is: Did plaintiff's own evidence destroy the prima facie case made by proof of failure to give the statutory signals? Plaintiff's evidence shows that deceased, under normal conditions, would have had a clear view of defendant's track to the west from the time he came within 50 feet of the track, and at the time he was killed could have seen defen...