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

• Decision Date: 14 August 1931
• Docket Number: No. 4943.,4943.
• Citation: 41 S.W.2d 631
• Parties: ROWE v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

41 S.W.2d 631

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

No. 4943.

Springfield Court of Appeals. Missouri.

August 14, 1931.

Rehearing Denied September 11, 1931.

Appeal from Circuit Court, Lawrence County; Emery E. Smith, Judge.

"Not to be officially published."

Action by W. J. Rowe, administrator of the estate of Everett Rowe, deceased, against the St. Louis-San Francisco Railway Company. Judgment for the plaintiff, and the defendant appeals.

Reversed.

E. T. Miller, of St. Louis, and Mann, Mann & Miller, of Springfield, for appellant.

James H. Holt, of Springfield, and Sizer, Gardner & Lockmiller, of Monett, for respondent.

COX, P. J.

Action under our penalty statute resulting from the death of Everett Rowe in a collision between an automobile driven by him and a train of defendant at a street crossing in the town of Marionville on April 25, 1929. A trial was had by a jury in which plaintiff relied upon his proof that the statutory signal was not given at this crossing. Plaintiff recovered $2,750. Defendant appealed.

Appellant pleaded contributory negligence and relies upon the proposition that plaintiff's evidence shows affirmatively that deceased was guilty of contributory negligence as a matter of law and hence the trial court should have given a peremptory instruction to find for defendant as asked by it at the close of plaintiff's testimony and also at the close of all the testimony, both of which were refused.

Respondent relies upon the presumption created by section 4756, Rev. St. 1929, which provides that in a crossing case the plaintiff makes a prima facie case by proof that the statutory signals were not given and that an injury followed. It is conceded that there was enough proof on the question of the signals being not given to take that question to the jury, so the sole question here is whether or not plaintiff's evidence shows that deceased was guilty of contributory negligence as a matter of law. If it did so show, then it was the duty of the court to so declare and take the case away from the jury; but if it did not so show, then the case was properly submitted to the jury and the judgment should be affirmed.

The legal questions involved have been so well settled by the Supreme Court, by which we are bound, that a review of the large number of cases cited on both sides will not be necessary. We have read these cases and they agree as to the law. Their differences result from the differences in the facts of the several cases. Respondent cites a great number of cases on the point that plaintiff makes a prima facie case by showing that the signals were not given when a collision occurred at the crossing resulting in death or injury. One of these, McGee v. R. R., 214 Mo. 530, 544, 114 S. W. 33, and other cases, cited by both plaintiff and defendant, hold the same thing, so that under the settled law in this state the plaintiff made a prima facie case by proving that signals were not given, and if plaintiff could have made that proof and stopped at that point, there would be no question that a demurrer to the evidence could not properly have been sustained.

The law is well settled, as expressed in several cases cited by each party, that if plaintiff's witnesses go farther and show acts of plaintiff or physical facts which show conclusively that plaintiff was guilty of contributory negligence as a matter of law, then he will be cast on a demurrer to the evidence. This rule is stated in Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 362, on page 372, 30 S. W. 339, 341, as follows: "The duty of a traveler upon a highway, in approaching a railroad crossing, to use all reasonable precautions to ascertain the approach of trains and to avoid injury by them, is well-settled law, not only in this court, but perhaps all the courts of this country. This rule imperatively requires him to look carefully, in both directions, at a convenient distance from the crossing, before venturing upon it, if, by looking, a train could be seen. The duty will not be performed by attempting to look only from a point at which the view is obstructed. The duty is a continuing one until the crossing is reached. If there is a point between the obstruction and the track which gives opportunity to see, it is the duty of the traveler to look. He cannot close his eyes, and thereby relieve himself of the consequences of his own neglect." The same rule in shorter form is declared in Campbell v. St. Louis & Sub. Ry. Co., 175 Mo. 161, 75 S. W. 86, cited by respondent, on page 172 (75 S. W. 89), where, in discussing whether a peremptory instruction to find for defendant should have been given, it is said: "The argument in support of that instruction is that the plaintiffs' evidence shows that the deceased was himself guilty of negligence which contributed to the accident. From the facts and circumstances shown by the plaintiffs' evidence, the conclusion might reasonably be drawn that the deceased was guilty of such negligence, but, unless that is the only conclusion that can reasonably be drawn from those facts and circumstances, the demurrer to the evidence was properly overruled. If the evidence was such that there could reasonably be no two opinions about it, then its effect should have been declared by the court as a matter of law; otherwise it was a question of fact for the jury."

All the other cases cited on both sides, that deal with the question at all, agree with these two, so that a further citation or discussion by us is unnecessary. It remains to be determined whether or not the facts proven by plaintiff's witnesses conclusively show that plaintiff, if he had looked and kept a watch for the train until he reached the track, could have seen the train in time to have stopped and avoided the collision.

The gist of the testimony of each of plaintiff's witnesses on the material facts, after stating some generalities, is as follows: Generally speaking, plaintiff's witnesses show that plaintiff approached the crossing from the north and the train approached it from the west. The highway ran north and south and the railroad nearly east and west. There were no grades, hills, or depressions that materially obstructed the view of plaintiff to the west after he passed a certain bill board about 200 or 250 feet north of the...