Murphy v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 13 November 1944 |
| Docket Number | 38893 |
| Parties | Mary Louise Murphy, Appellant, v. Atchison, Topeka & Santa Fe Railway Company, a Corporation |
| Court | Missouri Supreme Court |
Rehearing Denied or Motion to Transfer to Banc Overruled December 4, 1944, in Per Curiam Filed.
Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Judge.
Affirmed and remanded.
Robert M. Murray and Walter A. Raymond for appellant.
The jury verdict in favor of the plaintiff on the Kansas theory of last clear chance in failing to slacken the speed of the train was supported by substantial evidence and the trial court erred in granting a new trial on the ground he should have sustained the demurrers to the evidence. Connole v East St. Louis & S.F. Ry. Co., 340 Mo. 690, 102 S.W.2d 581; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; Burns v. Aetna Life Ins. Co., 234 Mo.App. 1207, 123 S.W.2d 185; Renfrow v. Thompson, 156 S.W.2d 700; State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406; Bollinger v. St. Louis-S. F. Ry. Co., 337 Mo. 720, 67 S.W.2d 985; Trower v. M.-K.-T.R. Co., 347 Mo. 900, 149 S.W.2d 792; Goodman v. K. C., M. & S.R. Co., 137 Kan. 508, 21 P.2d 322; Restatement of the Law of Torts, sec. 479, p. 1253; Hill v. Southern Kansas Stage Lines, 53 P.2d 923, 143 Kan. 44; Hutchison v. St. Louis-S. F. Ry. Co., 335 Mo. 82, 72 S.W.2d 87; Sing v. St. Louis-S. F. Ry. Co., 30 S.W.2d 37; Bowman v. Standard Oil Co., 169 S.W.2d 384; McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161; Swain v. Anders, 235 Mo.App. 125, 140 S.W.2d 730; Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20.
Cyrus Crane, John H. Lathrop, Winston H. Woodson and Sam D. Parker for respondent.
(1) The decision in this case must be determined by the Kansas law. Woodard v. Bush, 282 Mo. 163, 220 S.W. 839. (2) Plaintiff, as driver of the automobile, was guilty of gross negligence which was the proximate cause of the accident, in driving upon, stopping upon and in failing to get off the railroad track when there was a train approaching at high speed in close proximity. Adams v. Railroad, 119 Kan. 783, 241 P. 1086; Richards v. C., R.I. & P. Ry. Co., 157 Kan. 378, 139 P.2d 427; Jacobs v. Railway Co., 97 Kan. 247, 154 P. 1023; Wehe v. Railway, 97 Kan. 794, 156 P. 742; Bunton v. Railway, 100 Kan. 165, 163 P. 801; Bazzell v. Railway, 134 Kan. 272, 5 P.2d 804; Brim v. Railway, 136 Kan. 159, 12 P.2d 715; Dickerson v. Railway, 149 Kan. 314, 87 P.2d 585; Johnson v. Union Pacific R. Co., 157 Kan. 633, 143 P.2d 630; Clark v. Atchison, T. & S.F. Ry. Co., 127 Kan. 1, 272 P. 128; Railway Co. v. Wheeler, 80 Kan. 187, 101 P. 1001. (3) Under the Kansas law and under the evidence in plaintiff's case, plaintiff's negligence did not cease but she was in active disregard of her own safety up till the last moment when she might have been saved. In fact, plaintiff is the party who had the last chance to avoid the collision and she failed to avail herself of it. Caylor v. Railroad, 332 Mo. 851, 59 S.W.2d 661; Jamison v. Atchison, T. & S.F. Ry. Co., 122 Kan. 305, 252 P. 472; Dearing v. Wichita R. and Light Co., 130 Kan. 142, 285 P. 621; Buchhein v. Atchison, T. & S.F. Ry. Co., 147 Kan. 192, 75 P.2d 280; Goodman v. Kansas City, M. & S.R. Co., 137 Kan. 508, 21 P.2d 322; Hall v. St. Louis-S. F. Ry. Co., 240 S.W. 175; McCloskey v. Renne, 225 Mo.App. 810, 37 S.W.2d 950. (4) Assuming that plaintiff's negligence ever ceased, which is not true under the Kansas decisions heretofore set out, plaintiff failed in her burden of proof to show that defendant thereafter could, by the exercise of ordinary care, have slackened the speed of the train so that plaintiff could and would have gotten off the track. Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74; Stark v. Berger, 344 Mo. 170, 125 S.W.2d 870; Karr v. C., R.I. & P. Ry. Co., 341 Mo. 536, 108 S.W.2d 44; Hutchison v. Thompson, 175 S.W.2d 903; State ex rel. v. Shain, 125 S.W.2d 41; Gilbert v. Railway Co., 91 Kan. 711, 139 P. 380; Mourning v. K.C. Rys. Co., 110 Kan. 417, 204 P. 721. (5) Under the Kansas law, since plaintiff herself was negligent and her negligence caused or contributed to her husband's death, she cannot recover damages for his death under the second count in her petition. Furthermore, even if plaintiff's negligence had ceased and if deceased Glenn Murphy's negligence had ceased, plaintiff failed to show by substantial evidence that the speed of the train could have been slackened after the car stopped on and failed to get off the track, or had it been possible to slacken speed that plaintiff would have gotten off the track. In fact, plaintiff proved affirmatively that she could not and would not have gotten off the track since she lost consciousness. Therefore, defendant was not negligent in failing to slacken speed or its negligence, if any, in that regard, was not the proximate cause of the collision. It was impossible to stop. 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; And cases cited under Point (5). (5) This court will sustain the ruling of the trial court granting a new trial if that ruling can be sustained on any of the grounds alleged in defendant's motion for new trial. Manthey v. Kellerman Contracting Co., 311 Mo. 147, 277 S.W. 927.
Barrett, C. Westhues and Bohling, CC., concur.
Mary Louise Murphy had a jury verdict of $ 15,000.00 for her personal injuries and $ 10,000.00 for her husband's death against the Atchison, Topeka & Santa Fe Railway Company. The trial court, upon a consideration of all the testimony in the case, was of the view that the evidence did not reveal that state of facts and circumstances from which the jury could or should be permitted to infer and find liability against the railroad under the Kansas last clear chance doctrine. Accordingly the court sustained the railroad's motion for a new trial on the assigned grounds that it had erred in refusing demurrers to the evidence.
Mrs. Murphy contends, on this appeal, that the cause should be remanded and the jury's verdict reinstated because there was no evidence from which she could be found guilty of contributory negligence as a matter of law and there was substantial evidence that the railroad had but failed to use a last clear chance to slacken the speed of its train after she and her husband were or could have been seen upon the railroad's track in a position of helpless and inescapable peril and was, therefore, guilty of negligence under the law of Kansas.
The collision out of which this litigation grew occurred at the intersection of the Santa Fe's tracks and a public road at Edgerton, Kansas, on July 1, 1942 in the daytime. The road and the tracks intersect at an angle of sixty-one degrees and ten minutes but the tracks were spoken of as though they ran north and south and the road as though it ran east and west. Mary Louise Murphy, her husband, Glenn Murphy, and her brother-in-law, Pat Murphy, and his wife, Nadine, were riding in Glenn's 1941 Chevrolet business coupe on their way to the home of the Murphys' father and mother. Mary Louise was driving. Nadine sat nearest her in the seat and Pat sat on the right side in the seat while Glenn sat on the raised floor on a rug back of the seat. The automobile was in excellent mechanical condition and Mrs. Murphy was an experienced driver. There was a large window in the door of the car and a smaller window just to the rear of the seat and Mrs. Murphy said that because of the angle of the crossing and the manner in which they sat in the car it was necessary for her to look over her right shoulder and through the smaller window to see down the railroad track to the south. She and all the occupants of the car were familiar with the surroundings and she considered the crossing "dangerous." She stopped the car about twenty-five feet from the west or main line track, which was about forty feet north of the railroad station, and remained stopped for four or five minutes while a freight train passed on the east track. As the caboose of the freight train passed over the crossing she put the car in low gear and started forward, shifting into second gear about fifteen feet from the west track, and proceeded at a speed of five or six miles an hour. As she proceeded forward she looked to the north on a clear and unobstructed track and immediately turned her attention to the other direction and looked south through the small car window; and, she says she continued to look south until she actually saw the train approaching from that direction. She says that as she proceeded towards the tracks, looking south, her view of the tracks to the south was first obstructed by the station. As she continued on her view of the tracks to the south was obstructed by a bay window on the front of the station and as she continued on still farther her view of the tracks to the south was obstructed by a water tank 318 feet south of the center line of the crossing. When she could and did see the train it was 100 to 150 feet south of the water tank. The bumper of the automobile, at least the right side of it, was then over the first rail of the track and that was the first time she could see the train. She immediately "slammed on" the brakes and the car stopped almost instantly, "about in the middle between the two tracks," two or three feet over. She shifted the car from second gear to neutral and into reverse but before she could back off the car was struck by a northbound train. The Murphy brothers were killed and she became unconscious after the car was struck.
The train was the second section of the Santa Fe's No. 8 passenger train consisting of two baggage cars and four express cars loaded with auxiliary airplane tanks. West of Edgerton...
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