Norton v. Hines

• Decision Date: 06 November 1922
• Docket Number: No. 14102.,14102.
• Citation: Norton v. Hines, 245 S.W. 346, 211 Mo. App. 438 (Mo. App. 1922)
• Parties: NORTON v. HINES, Director General of Railroads, et al.
• Court: Missouri Court of Appeals

245 S.W. 346

211 Mo. App. 438

NORTON v. HINES, Director General of Railroads, et al.

No. 14102.

Kansas City Court of Appeals. Missouri.

November 6, 1922.

Rehearing Denied December 4, 1922.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

Action by Percy L. Norton against Walker D. Hines, Director General of Railroads, and John Barton Payne, Agent. Judgment for plaintiff, and defendants appeal. Affirmed.

L. D. Ramsay, of Rockport, and H. J. Nelson and J. Trimble, both of St. Joseph, for appellants.

W. C. Ellison, of Maryville, for respondent.

ARNOLD, J.

This action is for damages to an automobile which was struck by a train at a highway crossing near Westboro in Atchison county. The said highway and railroad, at the scene of the accident, cross at right angles, the highway running east and west and the railroad north and south. Plaintiff's wife was driving the automobile westward, and the train was coming from the north.

The railroad runs through plaintiff's farm. The family residence is on the north side of the public road and about one-eighth of a mile east of the railroad track. Plaintiff and his wife had lived on this farm for about 16 years and knew the time trains were due. The accident occurred about 5 or 6 minutes after 8 o'clock a. m. on June 21, 1919.

An employé of plaintiff on the farm resided thereon in a separate house. On that morning and before the accident, he was preparing to plow corn, when plaintiff's wife called to him that some person in Westboro had called over the telephone and stated there were"some cherries there for his family. The employs, whose name was Ford, answered that he could not go for them until /evening, and Mrs. Norton replied that she would go after them for him that morning, as Mrs. Ford could take care of them that day. Plaintiff at the time was at work in another field and knew nothing of the matter.

Following her conversation with Ford, Mrs. Norton took the automobile and drove south about 100 yards and into the public road, turning west. The testimony tends to show that she could not see the train coming from the north until after she had passed the house, and she could not then see perfectly because of weeds and brush on the inside of the fence on the Norton land on the north side of the highway. These obstructions extended to the railroad right of way.

The testimony shows that at a point about 61 feet from the track she could have seen an engine 150 feet north of the crossing, and at 50 feet from the track she had an unobstructed view for a distance of 790 feet. Mrs. Norton proceeded west on her way, and when upon the railroad track at the crossing the automobile was run into by a locomotive attached to a passenger train due at that time, and was thrown a distance of 50 feet onto the side of the said highway and was broken, twisted, crushed, and rendered useless and valueless. The value of said automobile is placed at $1,200, and judgment is prayed in this amount.

The negligence charged in the amended petition is based on the provisions of section 3140, R. S. 1909 (section 9943, Rev. St. 1919), and reads as follows:

"The defendant and his said employs utterly and negligently failed to discharge their duty in that regard, and neither the said bell was rung or kept ringing as aforesaid, nor the said whistle sounded or kept sounding, as aforesaid; but, on the contrary thereof, while said locomotive was approaching said crossing under the care, control, and management of defendant's said employés, they and each of them negligently and carelessly failed either to ring or cause to be rung, or to sound or cause to be sounded any bell or whistle on said locomotive while it was within a distance of 80 rods of said crossing, in consequence of which plaintiff's said wife in said automobile was present at said crossing and said locomotive and train of cars struck and collided with said automobile as aforesaid, and inflicted the wrongs and injuries aforesaid in manner and form aforesaid."

The amended answer was, first, an admission that defendant Hines was in charge of and operating the said railroad as charged in the petition, followed by a general denial of all other allegations of the petition. As further answer, defendants plead' contributory negligence of plaintiff's wife. In this state of the pleadings the cause went to trial to a jury. A peremptory instruction asked by defendants was overruled by the court. Verdict was for plaintiff in the sum of $1,000.

A timely motion for a new trial was filed, and by the court overruled. Defendant appeals.

For the first assignment of error, defendants urge that their peremptory instruction in the nature of a general demurrer should have been given, and in support thereof state that, under the circumstances of this case as shown by the evidence, plaintiff's wife was negligent, and that her negligence is properly chargeable to plaintiff.

This brings us face to face with the one question that is determinative of this appeal, to wit: Can plaintiff be held chargeable with the negligent act of his wife in operating his motorcar, under the facts shown in the record? Defendants tried the case on the theory that plaintiff may not recover if his wife were guilty of contributory negligence. Plaintiff takes the opposite view, and the legal conflict was waged on these lines.

We think the law in this state on the question presented by the record in this case is well settled, to the effect that, unless the wife was using the automobile as the agent or servant of her husband, or in furtherance of plaintiff's business, the husband may not be held responsible for her negligent acts.

There is some testimony of record that the wife was negligent, and this was conceded by plaintiff at the trial. But, under the theory upon which the case was prosecuted and defended, we hold that the wife's negligence is immaterial. The testimony shows that the automobile was the property of plaintiff; that he and his wife each drove it at will; that she drove the car without asking permission to do so; in other words, that it was a family car.

Defendants argue that on the occasion of the accident the wife was driving the car in furtherance of plaintiff's business because plaintiff himself was engaged in plowing. It was a busy season of the year, and if the employé, Ford, left his work and went to Westboro at that time, it would have interfered with his work on the farm, and it was therefore in plaintiff's interest for the wife to go, and the wife, therefore was operating the car in plaintiff's interest.

This argument, apparently presented in all sincerity, is unique, but not convincing, in the light of all the facts set out in the record. In the first place, when informed by Mrs. Norton that the cherries were ready for him at Westboro, Ford told her that he could not go for them "until evening," evidently intending to say that he could not go until his work on the farm for the day was ended. We cannot accept these facts as indicating that in going for the cherries Mrs. Norton was in any way conserving the time of Mr. Ford for his work on the farm, for Ford already had said he would not go until his work for the day was over.

Under the facts as presented, we hold against defendant's contention that Mrs. Norton was engaged in plaintiff's business, or was his agent, or servant, in going for the cherries under these circumstances. It is now a well-settled rule in this state that contributory negligence of a bailee may not be imputed to the bailor in a suit by the...