Murphy v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 14 October 1946
• Docket Number: 39044
• Parties: Nadine Murphy v. Atchison, Topeka and Santa Fe Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

197 S.W.2d 632

355 Mo. 643

Nadine Murphy v. Atchison, Topeka and Santa Fe Railroad Company, a Corporation, Appellant

No. 39044

Supreme Court of Missouri

October 14, 1946

Rehearing Denied November 11, 1946.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed.

Cyrus Crane, John H. Lathrop, Winston H. Woodson and Sam D. Parker for appellant.

(1) Plaintiff could not and did not rely on the electric flasher light signal. Jacobs v. Ry. Co., 97 Kan. 247, 154 P 1023. (2) Plaintiff's negligence did not cease until she looked and saw the train, and there was no evidence (and there could be no evidence) that the speed of the train could have been slackened in the distance it was away from the crossing at that time. Black's Law Dictionary (3d Ed.), p. 1359; Shepard v. Thompson, 153 Kan. 68, 109 P.2d 126; Buchhein v. Atchison, T. & S.F. Ry. Co., 147 Kan. 192, 75 P.2d 280; Rathbone v. Ry. Co., 113 Kan. 257, 214 P. 109. (3) But even if plaintiff's negligence had ceased prior to the time that she looked up and saw the train, still plaintiff failed to make a case under the Kansas last clear chance doctrine because plaintiff and her husband were not in a position of inescapable peril until the expiration of the time that it would take to move the automobile from the track, and there was no evidence that the train could have been sufficiently slackened after that time elapsed. Mary Louise Murphy v. Atchison, T. & S.F. Ry. Co., 353 Mo. 697, 183 S.W.2d 829; Dearing v. Wichita R. & L. Co., 130 Kan. 142, 285 P. 621; Jamison v. Atchison, T. & S.F. Ry. Co., 122 Kan. 305, 252 P. 472; Buchhein v. Atchison, T. & S.F. Ry. Co., 147 Kan. 192, 75 P.2d 280. (4) Furthermore, even if plaintiff's evidence had been different and had shown that plaintiff was in a position of inescapable peril when the automobile stopped on the track, still plaintiff would not have made a case because there was not and could not have been any substantial evidence that the speed of the train could have been sufficiently slackened in that distance. Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284; Hutchison v. Thompson, 175 S.W.2d 903. (5) Plaintiff cannot recover damages sustained by her as the result of her husband's death, for the following reasons: (a) Plaintiff was negligent and her negligence caused or contributed to cause her husband's death. (b) Her husband's death was caused or contributed to by his own negligence. (c) Plaintiff failed to show by substantial evidence that the speed of the train could have been sufficiently slackened after plaintiff's husband got into a position of inescapable peril. Rathbone v. Railway Co., 113 Kan. 257, 214 P. 109; Cruse v. Dole, 155 Kan. 292, 124 P.2d 470; Bunton v. Railroad, 100 Kan. 165, 163 P. 801. (6) The court erred in overruling each of defendant's objections to the erroneous and prejudicial argument of plaintiff's counsel and further erred in overruling each of defendant's motions to reprimand plaintiff's counsel and to declare a mistrial and discharge the jury on account thereof. State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798; Stanton v. Jones, 19 S.W.2d 507; Carpenter v. Kurn, 345 Mo. 877, 136 S.W.2d 997; Ek v. C., R.I. & P. Ry. Co., 132 Kan. 177, 294 P. 663; Adams v. M.-K.-T. Ry. Co., 119 Kan. 783, 241 P. 1086; Jacobs v. Ry. Co., 97 Kan. 247, 154 P. 1023. (7) Since this is a Kansas railroad crossing case and must be determined by the Kansas law, and since this court in ruling an outright reversal followed the case of Christie v. Atchison, T. & S.F. Ry. Co., 154 Kan. 713, 121 P.2d 208, it being the latest Kansas case on the subject, this court must likewise so rule on rehearing. Christie v. Atchison, T. & S.F. Ry. Co., 154 Kan. 713, 121 P.2d 208. (8) The ruling of the Kansas Supreme Court in the earlier case of Buchhein v. Atchison, T. & S.F. Ry. Co., 147 Kan. 192, 75 P.2d 280, likewise is squarely in point and conclusively shows that plaintiff failed to make a case under the Kansas last clear chance doctrine, because plaintiff and her husband were not in a position of inescapable peril until the expiration of the time that it would take to move the automobile from the track. (9) The ruling in the Buchhein case is not obiter. Buchhein v. Atchison, T. & S.F. Ry. Co., 147 Kan. 192, 75 P.2d 280; 21 C.J.S., sec. 190b, pp. 314-16; 7 R.C.L., sec. 31, p. 1005; Kane v. McCown, 55 Mo. 181; State ex rel. Weast v. Moore, 164 Mo.App. 649, 147 S.W. 551; In re Moody's Estate, 83 S.W.2d 141; State ex rel. McNulty v. Ellison, 278 Mo. 42, 210 S.W. 881; Swiss Oil Corp. v. Shanks, 270 S.W. 478; Railroad Companies v. Schutte, 103 U.S. 118; Union Pacific Co. v. Mason City Co., 199 U.S. 160; Chicago, B. & Q.R. Co. v. Board of Supervisors, 182 F. 291; United States v. Title Ins. Co., 265 U.S. 472, 44 S.Ct. 621; Richmond Co. v. United States, 275 U.S. 331, 48 S.Ct. 194; State v. Loveless, 150 P.2d 1015. (10) Respondent's attorneys are contending that this court should overrule the Kansas Supreme Court in the Christie and Buchhein cases. This court cannot do that; it does not have such appellate jurisdiction. This court, under the well settled law, must follow the Kansas Supreme Court in these two cases, since they are the latest rulings of the Kansas Supreme Court on the subject, both of which cases are squarely in point and support this court's prior opinion and bar plaintiff's recovery. Newlin v. Railroad, 222 Mo. 375, 121 S.W. 125; Woodard v. Bush, 282 Mo. 163, 220 S.W. 839; State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406; Shepard v. Thompson, 153 Kan. 68, 109 P.2d 126. (11) The other ruling of the Kansas Supreme Court in the Christie case and in the Buchhein case -- that the passenger's contributory negligence in failing to warn the driver of the approaching train before the automobile went onto the track barred recovery under the Kansas last clear chance doctrine -- likewise is squarely in point and bars recovery in this case. (12) Furthermore, since there was not a syllable of evidence in the case that the automobile would have backed off the track in time to have averted the collision if it had been possible to slacken the speed of the train, plaintiff failed to make a case because it was physically impossible to stop the train and only the stopping of the train would have saved plaintiff. (13) The Kansas Supreme Court has repeatedly held that a driver who drives onto a railroad crossing or a passenger who allows himself to be driven onto a railroad crossing closely in front of a train moving at high speed (and with a small margin of safety, as in this case) cannot recover. Buchhein v. Atchison, T. & S.F. Ry. Co., 147 Kan. 192, 75 P.2d 280; Rathbone v. Ry. Co., 113 Kan. 257, 214 P. 109.

Robert M. Murray and Walter A. Raymond for respondent.

(1) The silence of the crossing bell and the inaction of the flasher lights were inducements to the driver of the automobile to move forward over the crossing. Sisk v. Chicago, B. & Q.R. Co., 67 S.W.2d 830; Scott v. Mo. Pacific R Co., 333 Mo. 374, 62 S.W.2d 834. (2) Plaintiff made a submissible case under the Kansas last chance doctrine. The jury verdict in favor of plaintiff was supported by substantial evidence that after plaintiff was in position of inescapable peril, which should have been observed by defendant's engineer, the speed of the train could have been slackened sufficiently to have enabled the automobile to finish backing off the track and out of danger. Connole v. East St. Louis & S.F. Ry. Co., 340 Mo. 690, 102 S.W.2d 581; Burns v. Aetna Life Ins. Co., 234 Mo.App. 1207, 123 S.W.2d 185; Trower v. M.-K.-T.R. Co., 347 Mo. 900, 149 S.W.2d 792; Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961; McRae v. Mo. Pac. R. Co., 116 Kan. 99, 225 P. 1032; Clark v. Mo. Pac. R. Co., 115 Kan. 823, 224 P. 920; Corley v. A., T. & S.F. Ry. Co., 90 Kan. 70, 133 P. 555; Farmer v. Central Mut. Ins. Co. of Chicago, 145 Kan. 951, 67 P.2d 511; Link v. Miller, 300 P. 1105, 133 Kan. 469; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21; Cheatam v. Chartrau, 176 S.W.2d 865; Chervek v. St. Louis Pub. Serv. Co., 173 S.W.2d 599; Boland v. St. Louis-S.F. Ry. Co., 284 S.W. 141; Weaver v. Mobile & O.R. Co., 343 Mo. 223, 120 S.W.2d 1105; Burneson v. Zumwalt, 349 Mo. 94, 159 S.W.2d 605; Laughlin v. Boatmen's Natl. Bank of St. Louis, 163 S.W.2d 761; State ex rel. Pabst Brewing Co. v. Ellison, 286 Mo. 225, 226 S.W. 577; Ganey v. Kansas City, 259 Mo. 654, 168 S.W. 619; Schneider v. St. Joseph Ry., L.H. & P. Co., 238 S.W. 468; Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621; Morris v. E.I. Du Pont De Nemours & Co., 346 Mo. 126, 139 S.W.2d 984; Murphy v. Doniphan Tel. Co., 347 Mo. 372, 147 S.W.2d 616; Young v. M.-K.-T. R. Co., 100 S.W.2d 929; Wise v. Chicago, R.I. & P. Ry. Co., 335 Mo. 1168, 76 S.W.2d 118; Shepard v. Thompson, 153 Kan. 68, 109 P.2d 126; Maresh v. Peoria Life Ins. Co., 3 P.2d 634, 133 Kan. 654; Weigel v. Reintjes, 154 S.W.2d 412; Rathbone v. Ry. Co., 113 Kan. 257, 214 P. 109; Buchhein v. A., T. & S.F. Ry. Co., 147 Kan. 192, 75 P.2d 280; Bradshaw v. Payne, 207 P. 802, 111 Kan. 475; Clark v. Railroad Co., 224 P. 920, 115 Kan. 823; Denton v. Ry. Co., 133 P. 558, 90 Kan. 51; Denton v. Ry. Co., 155 P. 812, 96 Kan. 498. (3) There was substantial evidence that after plaintiff and her husband were in a position of inescapable peril the train could have been sufficiently slackened to enable the backing automobile to clear the track Gann v. Chicago, R.I. & P. Ry. Co., 319 Mo. 214, 6 S.W.2d 39; State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W.2d 864; Wolverton v. Kurn, 348 Mo. 908, 156 S.W.2d 638; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847. (4) There was substantial evidence that after plaintiff was in a position of inescapable peril the speed of...