Roques v. Butler County R. Co.

• Decision Date: 02 July 1924
• Docket Number: No. 3536.,3536.
• Citation: 264 S.W. 474
• Parties: ROQUES et al. v. BUTLER COUNTY R. CO.
• Court: Missouri Court of Appeals

264 S.W. 474

ROQUES et al. v. BUTLER COUNTY R. CO.

No. 3536.

Springfield Court of Appeals. Missouri.

July 2, 1924.

Rehearing Denied July 22, 1924.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Ben F. Rogues and others against the Butler County Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

A. & J. F. Lee and Joseph Renard, both of St. Louis, and Sheppard & Sheppard, of Poplar Bluff, for appellant.

Sam M. Phillips, of Poplar Bluff, for respondents.

BRADLEY, J.

Plaintiffs are the father and mother of Floyd Rogues, who was killed at a crossing in the town of Qulin in Butler county, March 15, 1923. The cause was tried to a jury; verdict and judgment went for plaintiffs; and after the usual steps defendant appealed.

The acts of negligence relied on are: (1) Failure to give the statutory signals; (2) approaching the crossing at a high rate of speed while it was raining, and failing to keep watch for persons or vehicles; and (3) a breach of the humanitarian or last chance rule. The answer is a general denial and a plea of contributory negligence.

Defendant assigns error on (1) the voir dire examination of a member of the trial panel; (2) the remarks of counsel; (3) the refusal of its demurrer at the close of the case; (4) the admission of evidence; (5) the instructions given and refused; and (6) the amount of the verdict.

The motion for a new trial makes no mention of the voir dire examination or the remarks of counsel; hence these assignments are not before us.

Should defendant's demurrer have been sustained? If it was proper to submit the case on any ground alleged, then, of part of decedent before plaintiff could recover. course, the demurrer should have been overruled. We will first consider the humanitarian doctrine. The railroad where plaintiffs' son was killed runs north and south. Decedent approached from the east in a Ford touring car, and was struck and instantly killed by defendant's south-bound passenger train about 9 o'clock a. m. Decedent at the time of his death was 17 years and 5 months of age, resided with his parents in the country, but was attending the high school in Qulin, and was on his way to school. Decedent had, however, been attending the high school at Qulin but a short time, but he knew of this crossing, and was an experienced driver of a Ford car. The crossing in question is on the north side of town on A street, and a short distance west of the point where Second street enters A street. Decedent drove north on Second street, and turned west on A. street. According to the evidence most favorable to plaintiffs it was raining hard, the wind was blowing, and the curtains on the car were up. One of the isinglass windows in the, front curtain on the right hand side had been broken"out and a piece of silk stocking had been placed over this opening, but one could see through the stocking piece as well as through the isinglass. The rain, according to plaintiffs' evidence, obscured one's vision through the isinglass. The crossing, the roadway, and the surroundings were all on the same level, except there was a slight ditch on either side of the roadway. Abutting on the north side of A street, and 17 feet and 7 inches east of the east rail, was a combination pump house and blacksmith shop, which extended north about 75 feet, and east and west 25 or 30 feet. North of the blacksmith shop and on the east side of the railroad is a water tank but how far north of the blacksmith shop does not appear. About 20 or 30 feet north of the water tank is a concrete oil house. At a point 50 feet east of the crossing the view up the track was obstructed, according to plaintiffs' evidence, for a quarter of a mile. The exact distance east from the crossing to Second street is not shown, but it does appear that in approaching A street from the south the view up the track is not obstructed, except what view is shut off by the blacksmith shop and pump house, oil passenger train about 9 o'clock a. m. Decedent at the time of his death was 17 years and 5 months of age, resided with his parents in the country, but was attending the high school in Qulin, and was on his way to school. Decedent had, however, been attending the high school at Qulin but a short time, but he knew of this crossing, and was an experienced driver of a Ford car. The crossing in question is on the north side of town on A street, and a short distance west of the point where Second street enters A street. Decedent drove north on Second street, and turned west on A. street. According to the evidence most favorable to plaintiffs it was raining hard, the wind was blowing, and the curtains on the car were up. One of the isinglass windows in the, front curtain on the right hand side had been broken"out and a piece of silk stocking had been placed over this opening, but one could see through the stocking piece as well as through the isinglass. The rain, according to plaintiffs' evidence, obscured one's vision through the isinglass. The crossing, the roadway, and the surroundings were all on the same level, except there was a slight ditch on either side of the roadway. Abutting on the north side of A street, and 17 feet and 7 inches east of the east rail, was a combination pump house and blacksmith shop, which extended north about 75 feet, and east and west 25 or 30 feet. North of the blacksmith shop and on the east side of the railroad is a water tank but how far north of the blacksmith shop does not appear. About 20 or 30 feet north of the water tank is a concrete oil house. At a point 50 feet east of the crossing the view up the track was obstructed, according to plaintiffs' evidence, for a quarter of a mile. The exact distance east from the crossing to Second street is not shown, but it does appear that in approaching A street from the south the view up the track is not obstructed, except what view is shut off by the blacksmith shop and pump house, oil house and water tank. There was evidence that on account of the condition of the roadway decedent did not likely exceed 5 miles an hour in turning from Second street onto A street, and in approaching the crossing. The speed of the train was about 20 miles per hour. The automobile was 10 feet and 10 inches in length. The railroad track was 5 feet and 2 inches in width. The automobile was struck over the right rear wheel. The front wheels of the automobile had traveled from the time they passed the blacksmith shop, until struck, about 32 feet. This estimate is based on these distances, to wit, 17 feet and 7 inches from the blacksmith shop to the track; 5 feet and 2 inches across the track; and about 9 feet after the front wheels of the automobile passed over the west rail. On the basis of the respective rates of speed of defendant's train and the automobile the train was at least 128 feet north of the crossing when the front of decedent's car passed the corner of the blacksmith shop where it was in plain view of the approaching train. It was raining, but the engineer testified that he could see clearly ahead; that the window on his side was so arranged that the rain did not obscure his view. He also testified that he did not see the automobile until at the instant of the impact. The fireman, who was on the side from which the automobile approached, said that he "just got a glimpse of the automobile as it went on the track." Vision through the front window on the fireman's side was obstructed by the rain, but he says that he looked out at the side window down the track. There is no evidence that the boiler was of such proportions as to obstruct the view of the east side approach to the crossing from the engineer for any appreciable distance, but if such were the case then it was the duty of the fireman or some one to keep a lookout. The train was approaching the station, and the power was off preparatory to stopping. In State ex rel. Wabash Ry. Co. v. Trimble et al. (Mo. Sup.) 260 S. W. 1000, the court said:

"It is contended, however, that as the engineer was on the west side of the engine it was not shown by the evidence that he could see the plaintiff in a position of peril as she approached the track from the east side. And it is further contended that as the fireman, who was located on the east side of the engine, had various duties to perform, there was a failure to prove that he saw the plaintiff in time to have informed the engineer of her peril so that, by the exercise of ordinary care and with the means at hand, he could have warned her or checked the speed of the train. If the engineer from his position could not see persons on or dangerously near the track when the train was approaching the station where the presence of people crossing the track should have been anticipated, then it was the duty of the fireman to observe the conditions on his side of the engine. The jury was not required to assume that the fireman was so otherwise engaged when running into the station that he could not keep a lookout. If that were true then some one of the crew should have been on the engine who could have seen and warned persons in peril. Morgan v. Wabash Ry. Co., 159 Mo. 262, 60 S. W. 195."

The engineer said that he approached the crossing with his hand on the air; that he was reducing his speed for the station. The fireman said that as they approached the crossing they were drifting. The train ran or drifted, before the collision, 128 feet after the automobile was where it could have been seen by looking. It was not seen; therefore the inference is that no one looked. Tom R. Robertson, a witness for defendant, is the only witness who saw the casualty. He was in his house a half block east, and saw the automobile go upon the track, and saw it struck. He says that the automobile did not stop, but he was unable to say whether it slowed down. At a rate of 5 miles per hour decedent was moving 7 1/3 feet per second. He would have escaped injury...