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

• Decision Date: 02 July 1924
• Docket Number: No. 3587.,3587.
• Parties: ROBERTSON v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

264 S.W. 443

ROBERTSON v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 3587.

Springfield Court of Appeals. Missouri.

July 2, 1924.

Rehearing Denied July 22, 1924.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Action by Birdie J. Robertson, administrator of the estate of Bernice Robertson, deceased, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, of St. Louis, John H. Lucas and William C. Lucas, both of Kansas City, W. W. Wood, of Humansville, and Frank Mann, of Springfield, for appellant.

C. H. Skinker, Jr., Alfred Page, and Val Mason, all of Springfield, for respondent.

BRADLEY, J.

Plaintiff is the administrator of the estate of Bernice Robertson, a young girl 17 years of age, who was killed at a crossing June 21, 1922. Plaintiff recovered a judgment for $6,500, and defendant appealed.

The petition is in three counts. In the first it is alleged that there were obstructions at the crossing and that defendant failed to give the statutory signals. In the second the humanitarian doctrine is relied upon. In the third count plaintiff predicated recovery upon an alleged defective crossing. The answer is a general denial and a plea of contributory negligence. The cause went to the jury upon the first count only.

Defendant assigns error on the refusal of its demurrer, on the admission of evidence, and on the instructions.

This is a companion case to McKerall v. St. Louis-San Francisco Ry. Co., 257 S. W. 166, which we decided January 8, 1924. Bernice Robertson, as stated in that case, was driving the automobile at the time of the casualty. The facts here are substantially the same as stated in the McKerall Case, and we do not think it necessary to state them here, but we make reference to that case for the facts.

We held in the MeKeret' Case that Roanne McKerall, for whose death plaintiffs in that case were suing, was not guilty of contributory negligence as a matter of law, but that such question was for the jury. We also held that whatever negligence the jury found Bernice Robertson was guilty of, if any, was, under the facts, imputable to Roanne McKerall. Therefore our ruling on the demurrer in the McKerall Case is decisive here, provided we still adhere to that ruling. There are no authorities cited in the briefs, nor is there anything in the able argument, both oral and written, in the case at bar, which convinces us that we ruled erroneously in the McKerall Case. Rather are we more thoroughly convinced that we ruled the demurrer correctly in that case.

Under the statute, section 9943, R. S. 1919, plaintiff was not required to prove that the failure to give the statutory signals was the proximate cause of the injury. When there is evidence that the signals were not given and that an injury occurred at a public crossing, then the statute raises the presumption that the injury was the result of failing to give the signals. That is, the statute supplies the causal connection. McGee v. Railroad, 214 Mo. 530, 114 S. W. 33; Monroe v. Railroad, 280 Mo. loc. cit. 488, 219 S. W. 68; McKerall v. Railroad, supra; Brown v. Railroad, 166 Mo. App. loc. cit. 260, 148 S. W. 457; Weltch v. Railroad, 190 Mo. App. 213, 176 S. W. 261; McNulty v. Railroad, 203 Mo. 475, 101 S. W. 1082.

In the McKerall Case we said:

"The traveler can only rely upon the statutory signals, where his view is so obstructed that he cannot by the exercise of ordinary care see an approaching train. In other words, if the traveler can hear and listens, and hears no signals, and no sound of an approaching train, and cannot by exercising ordinary care see an approaching train because of obstructions, then he is not required to leave his vehicle, and go forward on foot to ascertain if a train is approaching, but in such case he may proceed, relying on the servants of the railroad company obeying the statutory mandate as to signals."

In support of the law as stated we cited several cases from the Supreme and other appellate courts of this state.

Bernice Robertson was instantly killed, together with the other occupants of the automobile, and there was no evidence as to the care that she exercised in approaching and driving upon this crossing; therefore the presumption prevails that she was at the time exercising the care required for her own safety. McKerall v. Railroad, supra, and cases there cited. Defendant's demurrer was properly overruled.

Defendant sets out in its written argument on pages 33 to 40, inclusive, of its brief, the evidence complained of. A good portion of this evidence appertained to counts 2 and 3, which were abandoned. There may have been some irrelevant matters in evidence that might have been omitted. But we find nothing in the evidence challenged that could have prejudiced defendant. It would indeed be an anomaly to hold that the evidence which plaintiff introduced on counts 2 and 3 would require the reversal of the judgment based on count one. This assignment is ruled against defendant.

Defendant challenged instructions 1, 2, 3, 4, and 5 given for plaintiff. There is no defect of consequence in these instructions. The issues were well presented when all the instructions are considered. Defendant complains especially of instruction No. 3 given for plaintiff. This instruction is as follows:

"The court instructs the jury that if you find and believe from the evidence in this case that the deceased, Bernice Robertson, on the 21st day of June, 1922, was struck and killed by one of defendant's locomotive engines pulling a certain passenger train at the point on defendant's railroad where the same crosses...