Reynolds v. Thompson
| Citation | 215 S.W.2d 452 |
| Decision Date | 13 December 1948 |
| Docket Number | 40755 |
| Parties | Wilson Reynolds and Alta Reynolds, Respondents, v. Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a Corporation, Appellant |
| Court | United States State Supreme Court of Missouri |
From the Circuit Court of Lawrence County, Civil Appeal, Judge Emory Smith
Affirmed and Remanded
Action for $10,000 compensatory damages for the alleged wrongful death of plaintiffs' six year old son, who was killed when the automobile in which he was riding collided with one of defendant's trains at a grade crossing in the City of Lamar. At the close of all the evidence, the trial court directed a verdict for defendant, but a new trial was granted upon plaintiffs' motion and defendant has appealed from the order granting the new trial.
The collision occurred about 10:15 a.m., April 13, 1947. Mrs Reynolds, the mother of the deceased, was driving a V-8 Ford automobile west on U.S. Highway No. 160, at 25 to 30 miles per hour and was approaching the Twelfth street public crossing over defendant's north-south railroad track. Her little son was in the front seat with her and two other children, a daughter and brother were in the back seat. The day was bright and sunshiny, but rather chilly and the streets were dry. Twelfth street was paved with macadam black-top, and the crossing was about 400 feet south of defendant's passenger station. When the automobile was about 400 feet east of the crossing, defendant's northbound passenger train was about 300 feet south of the crossing, approaching the crossing at about 30 miles per hour and coasting in toward the station. There was evidence by several witnesses that the statutory crossing signals by whistle or bell were not given for the Twelfth street crossing and there was no evidence that the signals were given. The automobile collided with the right-hand, east side, of the train, "quite a ways" back of the locomotive, but how far back does not appear from the evidence. Appellant construes the evidence as showing a collision "back of the engine" and the answer alleged that the locomotive and one coach had passed over the crossing prior to the collision, so it is conceded that the collision did not take place any further back than the second coach. It is admitted that plaintiffs' son was killed as a result of the collision and that the automobile was demolished.
The Twelfth street crossing was located in a residential district in the City of Lamar and the crossing had for a long period been extensively used by vehicular traffic. Both the railroad tracks and the street pavement were elevated above the surrounding surface of the ground so that a level grade crossing was provided. The view to the south of one approaching the crossing from the east was wholly unobstructed for a distance of more than 200 feet east of the crossing, so there was nothing between the approaching train and the automobile to have prevented Mrs. Reynolds from seeing the train.
The evidence further shows that Mrs. Reynolds, who had been driving automobiles for eleven years, could see and hear well and she had had no sickness. She was fairly familiar with the street and crossing. There were no known mechanical defects in the automobile, its brakes were good and the windshield was clean.
Mrs. Reynolds testified that she had no recollection of the collision and didn't see the train; that the last thing she remembered was slowing up one block east of the crossing as she intended to turn south and cross the railroad tracks at a crossing south of the Twelfth street crossing. The next thing she remembered was when she woke up in a hospital. The evidence was adequate for an inference to be drawn that Mrs. Reynolds received serious injuries when the automobile collided with the train.
The petition charged defendant with various acts of negligence, towit, (1) negligence under the humanitarian doctrine in failing to stop or slacken the speed of the train and in failing to warn the deceased and the driver of the automobile of the train's approach, after deceased was in a position of imminent peril; (2) negligence in failing to give a timely warning of the approach of the train; (3) negligence in operating the train at a high and dangerous rate of speed under the existing circumstances; (4) negligence in failing to give the statutory crossing signals by bell or whistle as required by law; and (5) negligence in failing to erect and maintain warning or signaling devices and gates at a dangerous crossing.
Defendant denied the negligence charged and pleaded, as a complete defense; (1) the contributory negligence of the deceased in failing to warn his mother of the train's approach and in failing to complain to her of her failure to stop the automobile; and (2) the negligence of Mrs. Reynolds in failing to exercise the highest degree of care in the operation of the automobile, in ailing to watch for the approach and presence of the train on the crossing, in driving the automobile into the side of the train and in failing to look and listen and heed the approach of the train. Such negligence was alleged to be the sole cause of the collision and death of plaintiffs' son.
At the close of the plaintiffs' evidence, the defendant offered certain pictures in evidence and then moved the court to direct a verdict and instruct the jury to return a verdict for defendant on the ground that "under the pleadings, law and evidence in this case, the defendant was not negligent and that the negligence of Alta Reynolds, the driver of the car in which deceased was riding at the time of his injury, was the sole cause of the injury to deceased." The motion was sustained, the jury was so instructed and a verdict was returned for defendant. The motion for a new trial assigned error on the action of the court in sustaining the motion, giving of the instruction to return a verdict for defendant and other grounds. It was sustained "for the reasons set out in the motion."
Appellant assigns error on the order of the court setting aside the directed verdict and granting plaintiffs a new trial. If plaintiffs made a case for the jury on any theory of negligence alleged in the petition, the court erred in directing a verdict for defendant and the appellant may not complain of the order of the court granting the new trial. We shall consider only the charge of negligence based on the alleged failure to give the statutory crossing signals by bell or whistle as provided by Sec. 5213 R.S. 1939.
Appellant concedes there was substantial evidence of the failure of the defendant to give the crossing signals as required by the statute, but appellant contends that it conclusively appears as a matter of law from plaintiffs' own evidence that the negligence of Mrs. Reynolds in the operation of the automobile was the sole cause of the collision and resulting death. Appellant in effect says that, although plaintiffs made a prima facie case by showing that neither the bell was rung nor the whistle sounded as required by statute and that the collision and death occurred, yet, since it affirmatively appeared from plaintiffs' evidence that the said negligence of defendant did not occasion the injury and death and that the collision and death was caused by the sole negligence of Mrs. Reynolds, the prima facie case was overcome and the question of liability was removed from the province of the jury. Appellant cites Owens v. St. Louis Southwestern R. Co., 188 Mo.App. 450, 174 S.W. 116, and Rowe v. St. Louis-San Francisco R. Co. (Mo. App.), 41 S.W.2d 631, 632. These cases deal with the contributory negligence of the injured party or the deceased as barring recovery rather than the negligence of a third party being the sole cause of the injury and death, which is the issue here. However, in the first case (188 Mo.App. 450, 454) it is pointed out that, if plaintiffs' own evidence conclusively shows that the negligence charged and shown did not occasion the injury sued for, the prima facie case would be rebutted and overcome. This rule is not questioned by respondents.
In considering this case, we may assume without deciding that under the facts shown in evidence, Mrs. Reynolds would have been barred by her own contributory negligence, as a matter of law, from any recovery from defendant on account of her own personal injuries sustained in...
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