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

• Decision Date: 09 April 1927
• Docket Number: No. 25976.,25976.
• Citation: 295 S.W. 757
• Parties: PEPPERS et al. v. ST. LOUIS-SAN FRACISCO RY. CO.
• Court: Missouri Supreme Court

295 S.W. 757

PEPPERS et al. v. ST. LOUIS-SAN FRACISCO RY. CO.

No. 25976.

Supreme Court of Missouri, Division No. 2.

April 9, 1927.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Action by Orbitt S. Peppers and another against the St. Louis-San Francisco Railway Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Douglass & Inman, of St. Louis, for appellants.

E. T. Miller and A. P. Stewart, both of St. Louis, for respondent.

DAVIS, C.

This is an action in negligence, instituted by the parents of Mildred Peppers, a minor, who met her death on Armistice Day, 1922, due to defendant's train colliding at a railroad crossing with the automobile in which she was riding as a guest. The jury returned a verdict for defendant, plaintiffs appealing from the judgment entered thereon.

The evidence develops that the collision occurred at a point where a road crosses the defendant's tracks about a half mile west of Eureka Station. The tracks there run east and west. On Armistice Day the American Legion was preparing to celebrate the occasion at Legion Hall on Magazine farm, about three quarters of a mile from the station. To reach the hall, it was necessary to travel the public road running immediately north of and parallel to the tracks. At a certain point the road turned from the public road south over the tracks. This was a neighborhood affair, the people offering services and contributions. One Hance donated the use of his automobile to convey people to and from Legion Hall. While so doing, he drove his automobile westwardly along the public road to the point where the road turns across the tracks. In the automobile were four girls, one seated next to the driver, with three others, one of whom was the deceased, in the rear seat. On parallel tracks defendant maintained and operated trains. As the driver came to Magazine crossing a standing freight train on the north or west-bound track blocked his way, so that he was compelled to stop to await the moving of the freight train. Shortly thereafter the freight maintained, which burned in 1916, and was located to the right of the approach. The engineer in charge of the train involved in the collision testified that at that time a whistling board was maintained for this particular crossing, and it had been his habit and custom to give the signal at the Magazine crossing whistling post. He drove the train from Cuba to St. Louis every third day, The fireman testified that he saw a man on the back of the freight train giving a signal; that he did not do anything at that particular moment, because he did not know what the man was doing; that he understood his actions when he saw the front wheels of the machine come from behind the car. The evidence further develops that a number of witnesses in a position to listen failed to hear the passenger engine whistle or ring the bell as it approached Magazine crossing, although some testified that they did hear the whistle blow for a crossing a half mile or more west of Magazine crossing. train started, and, after moving forward far enough to leave the crossing unobstructed, again stopped. The driver then proceeded to cross the tracks, moving slowly. When the front end of the automobile reached the north rail of the east-bound track, a passenger train operated by defendant, running along the east-bound track towards St. Louis, collided with the automobile, killing several of the occupants and injuring others. From the public road to the tracks is a rise of 3 or 4 feet. The space between the north and south tracks is about 9 feet. Such other facts as are pertinent will later be noted.

I. Before proceeding to a discussion of plaintiffs' assignments of error, we are confronted with the contention that the cause should have been taken from the jury. If that be true, the discussion of plaintiffs' assignments of error becomes immaterial, for, absent facts demonstrating the right of recovery, other error becomes nonprejudicial.

Defendant refused to stand on its demurrer to the evidence at the close of plaintiffs' case, offering testimony in its behalf, thus compelling us to consider all the evidence introduced in determining whether the demurrer offered at the close of the whole case should have been sustained.

The contentions run thus: First, the evidence showing that plaintiffs were not entitled to recover, there was no reversible error in any instructions given or refused; second, the verdict being for the right party, error, if any, in the giving or refusing of instructions, was harmless. Defendant bases its contentions on the ground that it was not negligent and that the negligence of the driver was the sole cause of the collision.

In this connection it becomes necessary to state that the petition avers negligence of both a failure to ring the bell or sound the whistle in approaching the crossing, as provided in the Revised Statutes, and in negligently failing to give timely and adequate warning of the approach of the train to the crossing. The answer is a general denial, coupled with a plea of contributory negligence on Mildred Peppers' part in failing to look and listen, and in failing to warn the driver, when by looking and listening she could have discovered the approaching train.

The petition advises us that plaintiffs invoked both the statute and common-law negligence with respect to ringing the bell and blowing the whistle. The evidence tends to develop that the particular crossing involved had been maintained for over 30 years, and that for 2 or 3 years previous to the collision a whistling post had been maintained 1,320 feet west of the ,Magazine crossing. One witness testified that he was waiting to take the passenger train to St. Louis and that it was late. Another testified that prior to 1916 a railroad crossing sign, "Railroad Crossing, Look Out for the Cars," had been

The maintenance of the whistling post by defendant for Magazine crossing, without more, cast upon defendant the duty of observing due care and caution. Due care and caution, in this instance, involved the obligation of whistling at the post erected by defendant for that purpose. If the post was erected in compliance with the statute, the failure to whistle was conclusive evidence of negligence. But even if the road crossing the tracks was not public, still the erection of the whistling post by defendant was evidence that defendant considered Magazine crossing dangerous, and as surely obligated it to blow the whistle at the Magazine whistling post as though erected in compliance with the statute. Moreover, both the engineer and the fireman stated that they saw the freight train. The engineer stated that he could not tell whether it was standing or moving. The fireman stated it was standing when they first passed the west end of the train. Both the engineer and the fireman then knew that the freight train was near the crossing and that it obstructed the view of persons crossing the tracks from the public road going to Legion Hall. As it was Armistice Day, with people celebrating, they could expect travelers might cross the tracks behind the freight train. It was their duty to take the ordinary precautions that the circumstances required to protect lives, and the ordinary precautions in the instant case required the continuous ringing of the bell and at reasohable intervals, at least, the blowing of the whistle. This is emphasized by the fact that at a considerable distance from the crossing the fireman saw the brakeman on the freight train signaling, which ought to have warned him of an unusual situation ahead, and that some peril was lurking. The negative evidence of the failure to blow the whistle or ring the bell was evidence of negligence and of sufficient probative force to carry the cause to the jury as a proximate cause of the collision. This point is ruled against defendant.

II. Plaintiffs' first assignment of error relates to the refusal of the trial court to give to the jury its instruction marked B. The instruction is as follows:

"The court instructs the jury that, if you find from the evidence that on or about the 11th day of November, 1922, the deceased was riding in an automobile, and that the automobile was crossing the defendant's track a short distance west of Eureka, and that while crossing, if crossing, it was struck by one of the defendant's trains and deceased was injured so as to cause her death, and that at the time the deceased was in the exercise of ordinary care; and if you further find from the evidence that the place where the accident occurred was a crossing over the defendant's tracks that was used by persons and vehicles as a crossing over defendant's tracks, and that it was so used as a crossing, if used; that the defendant, in the exercise of ordinary care, should have anticipated that persons or vehicles might be on and crossing its tracks at said place, then it was the duty of the defendant to give a timely and adequate warning of the approach of its train when one of its trains was approaching said crossing, and the failure of the defendant, if it did so fail, to perform this duty would be negligence.

"If the jury find defendant guilty of negligence as above set forth, and if you further find that the death of deceased was directly caused either by such negligence of the defendant, if negligent, or that such negligence of the defendant, if negligence, combined with the negligence of the driver of the automobile so as to directly cause the death of deceased, then your verdict will be for plaintiff."

The instruction presented plaintiffs' theory of the case and was the only instruction covering their theory. Defendant maintains that the trial court correctly refused it, because, while purporting to cover the whole case, it excluded the pleaded defense of contributory negligence. It will be noted that the instruction contains the phrase, "And that at the time the deceased...