Pierson v. Missouri Pac. Ry. Co.

• Decision Date: 13 August 1925
• Docket Number: No. 3722.,3722.
• Parties: PIERSON v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

275 S.W. 561

PIERSON v. MISSOURI PAC. RY. CO.

No. 3722.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Rehearing Denied September 16, 1925.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Action by William Pierson against the Missouri Pacific Railway Company for death of wife and daughter, occasioned by collision at railway crossing. From a judgment for plaintiff, defendant appeals. Affirmed.

James F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.

Douglass, Inman & Horsefield, of St. Louis, for respondent.

COX, P. J.

Action for death occasioned by a collision between defendant's train and an automobile at a road crossing. The wife of plaintiff and a daughter 9 years old were killed in the collision. The husband and father brought suit and recovered $2,500 for the death of each. Defendant appealed.

Several errors are assigned, but at the oral argument counsel for appellant stated that he only insisted upon one, and that is that the demurrer to plaintiff's testimony should have been sustained and a verdict for the defendant directed. We shall therefore regard all other assignments of error as waived and determine the case here on the one question of the right of plaintiff to have his case submitted to the jury.

[] The collision occurred at a crossing immediately south of the railroad depot at Iron Mountain in Iron county. The charge of negligence is the failure to ring the bell or sound the whistle as required by the statute on approaching a crossing. There was positive evidence pro and con on that question, so the demurrer cannot be sustained on the ground of no proof of negligence. The other material facts are as follows: The plaintiff and his family lived 2 miles west of Iron Mountain. On Sunday morning, July 29, 1923, the wife of plaintiff and a son, 20 years old, and daughter, 9 years old, and 8 other persons went to Iron Mountain in a Ford automobile to attend Sunday school. The road they traveled ran east and west and crossed the track of defendant a few feet south of the depot. The depot is on the east side of the track and on the north side of the dirt road and is 30 feet wide east and west and 70 feet long north and south. The train which struck the automobile came from the north. The west wall of the depot is 13 feet from the east rail of the railroad track. A bay window extends west from the west wall of the depot 3 feet, so that, in order for a person near the southwest corner of the depot to have a clear view to the north, he would have to be in 10 feet or less of the east rail of the track. After Sunday school, the parties in the automobile and standing on the running board thereof, 11 in number, started home. The young man, Monroe Pierson, was driving. With him in the front seat were two girls. Three persons were on the running boards of the car and the others were in the rear seat. They approached the crossing from the east and, before the automobile reached the point where the depot shut off the view of the railroad to the north, the driver of the automobile looked in that direction and listened for the train. He was then traveling about 10 miles per hour, and as he approached the track he slowed down to 4 or 5, but not over 6 miles per hour. The front of the automobile was 6 feet in front of the driver. As stated, a bay window of the depot was within 10 feet of the track, so that, when the driver of the automobile reached a position where he would have a clear view of the track to the north, the front of the automobile was within 4 feet or less of the east rail of the track. The driver testified that, as he approached the track, he looked for the train as any other driver would do; that, just as they passed out from behind the depot, Ms mother, who was in the rear seat, said, "There is a train;" that he looked and saw the train just as she hallooed; and that the front wheels of the automobile were then on the track. In this connection he testified:

"At the time we saw the train, the front wheels were on the track and my car rather stopped, and it was the jerk when we hit the rail that caused it, and, of course, we tried to make the crossing then, and the crossing was rough, and I could not make it. I do not know what happened to my engine. It' was killed. At that time the train was past the cattle guard somewhere, and, of course, when the engine was dead on the track, we did not get over."

On cross-examination, he testified:

"When my mother told me there was a train coming, I looked and saw it, and it was some place up near the cattle guard. That was 200 feet or more north of the crossing. It was 275 feet to the cattle guard. * * * My hands were on the steering wheel and my foot was on the low gear and my other foot was on the accelerator. I' had my foot on the accelerator. With my other foot I held low down and I was right on the crossing, you know, and the engine was in low, and, as it was a rough crossing, it killed the motor. As quick as I could, I tried to get over. Naturally I pressed down on the accelerator right quick. I could not say —I do not know—that was done in a second.

"Q. You know about what happened, about everything else that happened, but you do not know what you did? You were troubled and excited? A. Not so much until afterward. Then I got excited, of course. If you put your foot on the accelerator all at once, it will kill the engine. I try that nearly every time I start.

"Q. If you push down on the accelerator quick, it will kill it? A. I do not know; never had that experience. My engine died and I do not know what caused it. I do not know to this day. We were just hitting the track when I looked up and saw a train at the cattle guard. I do not know how long we staid there before the train got there because I was moving. I got out of the car. I went to the east, back the way I came from. Those on the running board stepped off."

The train which was approaching the crossing from the north was running from 45 to 50 miles per hour. It struck the automobile and the wife of plaintiff and the daughter, 9 years old, were killed.

[2-4] In passing upon a demurrer to the testimony, the plaintiff must be given the benefit of every reasonable inference that can be drawn from the evidence in his favor. We deem the above statement of facts, which the evidence for plaintiff tends to show, as sufficient for the purposes of the demurrer. The chief contention of defendant is that plaintiff's evidence shows, as a matter of law, that the injured parties were guilty of contributory negligence. The first suggeston of defendant is to the effect that the wife of plaintiff, who was the mother of the son who was driving the automobile, was directing his driving, and hence she did not occupy the position of a passenger, and that under those circumstances the negligence of the driver should be imputed to her, and then reasons that the evidence for plaintiff shows, as a matter of law, that the driver was guilty of contributory negligence and as a result the demurrer to the testimony should have been sustained. The driver of the automobile testified:

"We drove slow because my mother was scared to drive fast. She controlled my driving. It was my father's car. She was along to see that I drove slowly. She was in the back seat."

This was all the testimony on the question of the mother's control of the driver. Whether this evidence was sufficient to charge the mother with responsibility for all acts of her...