Oster v. Chicago & A. R. Co.

• Citation: 256 S.W. 826
• Decision Date: 03 December 1923
• Docket Number: No. 14709.,14709.
• Court: Missouri Court of Appeals
• Parties: OSTER v. CHICAGO & A. R. CO.

256 S.W. 826

OSTER v. CHICAGO & A. R. CO.

No. 14709.

Kansas City Court of Appeals, Missouri.

December 3, 1923.

Rehearing Denied December 31, 1923.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

"Not to be officially published."

Action by Frank T. Oster against the Chicago & Alton Railroad Company. Judgment for plaintiff and defendant appeals. Affirmed.

W. H. Meschede, of Marshall, and Alpha N. Brown and Chas. M. Miller, both of Kansas City, for appellant.

Albert R. James, of Marshall, for respondent.

ARNOLD, J.

This is a suit to recover damages to plaintiff's automobile, which was run into by a freight train of defendant within the city limits of Marshall, Mo., about 4 o'clock p. m. on April 22, 1921.

Plaintiff, Oster, and his wife live in the city of Marshall, and the former was the owner of a Hudson five passenger motorcar. Plaintiff's wife was permitted to and did drive the car at will, and no special permission was asked or given. On the day of the accident, plaintiff was away from home, and had left the car in his private garage. Mrs. Oster had guests for luncheon that day, consisting of Mrs. Julius Oster, plaintiff's mother, Mrs. Anne E. Chamberlain, an aunt of plaintiff, and Mrs. Joe Chamberlain, daughter-in-law of Mrs. Anne Chamberlain, and a young girl of 15, also a relative of plaintiff. In the afternoon Mrs. Oster took her guests with her in the car, going first to a greenhouse to make some purchases, and thence continued driving about the city for pleasure. In the course of the drive they had occasion to cross the right of way and tracks of defendant on Miami street in the west part of the city. This street runs due north and south, and defendant's tracks run east and west, so that the crossing at that point is practically at right angles. The station of defendant is about four blocks east of said crossing. Immediately east of the crossing, the track of defendant curves slightly to the south, so that the view of the engineer of a west-bound train, in approaching the crossing, is somewhat curtailed, and the evidence shows that he would be unable to see a motorcar, or other object on the crossing, without leaning far out of the cab window on his right. Just south of the main line track at this point is a switch track running parallel with the main line track and distant there from 13 feet, from center to center between the rails. South of the right of way, which at this point is 100 feet in width, there were some houses, weeds, and underbrush, which, in a measure, obstructed the view to the east of persons approaching the crossing from the south. There is something of a down grade in approaching this crossing from the east.

Plaintiff's wife drove the car, and the young girl was on the front seat beside her, while the three other guests occupied the rear seat. All four of the women testified that, on approaching the crossing from the south, they looked first to the west and then to the east, and neither saw nor heard a train approaching. Mrs. Oster testified that the obstructions on the east side of the street, immediately south of the right of way, prevented her from seeing any great distance down the track; and that she was driving in a careful and prudent manner at the rate of about 8 to 10 miles an hour.

A few minutes before the accident a special freight train of defendant had taken the siding on the north of the main track near the station, started westward and pulled onto the main line a short distance east of the crossing in question. This train consisted of 33 cars of mixed freight and a caboose, and was pulled by an engine. As the engine passed to the main track, the engineer gave the usual warning signal with the whistle, the automatic bell having been ringing from the time the train pulled out from the station until shortly before it reached the crossing in question.

Plaintiff's evidence is that the driver of the car did not see the approaching train until her attention was called to it by one of the women in the back seat. At this time the car had passed over the side track and the front wheels were on the south rail of the main line, when the engine of her car stopped. Mrs. Oster jumped from the car, as did the girl beside her, but the women in the rear seat did not jump. The oncoming train struck the car somewhere near the right front wheel and lifted it by the cow-catcher, or pilot, and carried it west of the crossing before the train was brought to a stop. None of the occupants of the car was injured, and the car was removed from the scene under its own power, after a disabled wheel had been replaced.

The negligence charged is that the train was being operated over the Miami street crossing at a rate of speed in excess of 6 miles per hour, in violation of an ordinance of the city of Marshall, and that the engineer failed to give the crossing signals. The petition also invoked the humanitarian rule, but the case was submitted to the jury on the other charges.

The answer was a general denial and a plea of contributory negligence on the part of the driver of the car. The cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $600, the court having refused to sustain the demurrer offered by defendant. A motion for a new trial was unsuccessful, and defendant appeals.

In support of its appeal defendant urges that the trial court committed error in refusing to give a peremptory instruction in its favor. This charge is based on the theory that negligence of the wife may be imputed to the husband, but the testimony in this case fails to show that Mrs. Oster was the agent or servant of her husband in driving the car. On the contrary, the evidence shows clearly, and it is undisputed, that the wife was upon an errand of her own, and not connected with any duty she owed, her husband, or their immediate household. Under such state of 'acts, it frequently has been held in this state that the wife's negligence will not bar recovery by the husband for damages to his car. Spelman v. Delano, 177 Mo. App. 28, 133 S. W. 300; Norton v. Hines, Dir. Gen. (Mo. App.) 245 S. W. 348, and cases there cited. Our Supreme Court, In an exhaustive review of authorities in Hays v. Hogan, 273 Mo. 1, 200 S. W. 286, L. R. A. 19180, 715, Ann. Cas. 1918, 1127, determined this question against defendant's contention. In a more recent case, Mount v. Naert, 253 S. W. 066, the Supreme Court has declared anew this rule of law.:n that case, the plaintiff sued for personal injuries sustained through the alleged negligence of defendant in using, operating, and running an automobile so as to collide with and injure the plaintiff. The trial resulted in the plaintiff taking an involuntary nonsuit, and, after motion for new trial was overruled, plaintiff appealed. The evidence showed that Alphonse and Emil Naert were father and son; that the father had a family consisting of a wife and seven children, all living at the home; that the father owned an automobile which was kept in a garage at the family home, and that any and all members of the family who knew how to operate the car did so with the father's acquiescence, if not with his consent, whenever they so desired for their own busines or pleasure; that on the night of the injury the son took two of his sisters to a dance,...