Sale v. Kurn

• Decision Date: 17 December 1937
• Citation: 111 S.W.2d 98,341 Mo. 1157
• Parties: Charley Sale and Ocie Sale, his wife, parents of Grover Franklin Sale, their deceased minor son, v. J. M. Kurn and John G. Lonsdale, Trustees in charge of and operating the St. Louis-San Francisco Railway Company, a Railway Corporation, Appellants
• Court: Missouri Supreme Court

111 S.W.2d 98

341 Mo. 1157

Charley Sale and Ocie Sale, his wife, parents of Grover Franklin Sale, their deceased minor son, v. J. M. Kurn and John G. Lonsdale, Trustees in charge of and operating the St. Louis-San Francisco Railway Company, a Railway Corporation, Appellants

Supreme Court of Missouri

December 17, 1937

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Reversed and remanded (with directions).

J W. Jamison and Ward & Reeves for appellants.

(1) The court erred in refusing to give on behalf of defendants Instruction B, being in the nature of a demurrer to the evidence and offered at the close of the whole case. Elkins v. St. Louis Pub. Serv. Co., 335 Mo. 954, 74 S.W.2d 600; Williams v. St. Louis Pub. Serv. Co., 73 S.W.2d 199, 335 Mo. 335; Kenefick-Hammonds Co. v. Fire Ins. Co., 205 Mo. 294, 103 S.W. 957; Jones v. St Louis-S. F. Railroad Co., 5 S.W.2d 101; Jones v. Hill, 18 S.W.2d 382. (a) "Where a railroad crosses or runs parallel to a public road or street the trainmen owe no duty of refraining from making usual and necessary noises incident to the proper and safe operation of a train but to be within the bounds of reasonable care, which is the test of duty, must not operate it in an unusual or unnecessary way and thereby endanger the safety of travelers on the highway. Brown v. Ry. Co., 89 Mo.App. 192; Feeney v. Railroad Co., 123 Mo.App. 420; Phelon v. Paving Co., 227 Mo. 708. The controlling question, therefore, in every case of this character is whether the injury was caused by an unusual or unnecessary manipulation of the train, and the burden is on the plaintiff to show by proof that the injurious act was unusual or unnecessary." Pontius v. C., R. I. & P. Ry. Co., 174 Mo.App. 581; Culbertson v. Ry. Co., 178 S.W. 271; 3 Elliott on Railroads (2 Ed.), 1264; Strotjost v. St. Louis Merchant's Bridge Terminal Ry. Co., 181 S.W. 1082.

L. E. Tedrick and Phillips & Phillips for respondent.

(1) Where a railway and highway run parallel and near together, a traveler upon the latter and the servant in charge of a train upon the former should each regard the probability of the other using their respective places of travel near the same place and at the same time; and each should use reasonable care and caution governed by the situation of the highways with respect to each other in managing their respective vehicles of travel. Brown v. Mo. Pac. Ry. Co., 89 Mo.App. 192. Where a railroad has its tracks in a street, it is the duty of the trainmen in charge of an engine thereon, getting up steam by the use of a blower, to be on the lookout for dangers to travelers, and to stop the noise when it becomes obvious that control of horses is being lost by reason of fright caused thereby. Feeney v. Wabash Ry. Co., 99 S.W. 477, 123 Mo.App. 420; 24 Mo. Digest, 360; Wheeler v. Wabash Ry., 141 S.W. 472, 159 Mo.App. 579; Fowler v. Railroad Co., 84 S.W.2d 194; Bush v. M. K. T. Ry. Co., 144 S.W. 1123, 164 Mo.App. 420; 52 C. J., p. 767; Louisville, etc., Ry. Co. v. Stanger, 7 Ind.App. 179, 34 N.E. 688, 32 N.E. 209; St. Louis So. W. Ry. v. Kilman, 39 Tex. Civ. App. 107, 86 S.W. 1050; Gulf, etc., Railroad Co. v. Spence, 32 S.W. 329; Traction Co. v. Thomas, 164 Ala. 191, 51 So. 418; St. Louis S.W. Ry. v. Cambron, 131 S.W. 1130; St. Louis & S.W. Ry. Co. v. Nelson, 111 S.W. 1062; Holland v. Mo. Pac. Railroad Co., 214 Mo.App. 490, 257 S.W. 202.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Respondents, plaintiffs below, filed this suit against appellants to recover $ 10,000 in damages for the death of their infant son.

Appellants are one J. M. Kurn and John G. Lonsdale, trustees in charge of, and operating the St. Louis-San Francisco Railway Company. A trial resulted in a verdict for appellants. A motion for new trial was sustained and defendants appealed. The reason set forth in the order granting a new trial was that the trial court had erred in giving instructions requested by the defendants. The defendants, at the close of all the evidence, requested the trial court to give an instruction in the nature of a directed verdict. This was refused. Appellants contend that the evidence failed to establish a case for the jury, and therefore any errors in the instructions were and are immaterial. Since we have concluded that this contention must be sustained we need not consider any other questions.

In this opinion Charley Sale will be referred to as the plaintiff. The railroad tracks of the St. Louis-San Francisco Railway Company and Highway No. 25, run parallel to each other north of McGuire in Dunklin County, Missouri, the highway being about fifty-seven feet east of the railroad. Plaintiff testified that on June 6, 1933, at about six p. m., he was driving south on this highway with a small load of hay drawn by a horse and mule team. Plaintiff's son, Grover Franklin Sale, five years of age, was with him. A gas electric train of the defendant, called the "Bull Moose," consisting of a motorcar, one baggage and mail car combined, and two coaches, was traveling north at a speed of about thirty miles per hour. Plaintiff further testified that when the train was about fifteen steps from him the whistle was sounded. The record reads as follows:

"As I approached the Bull Moose I could see the track over there; my view was not obstructed in any way to the train. I didn't see anybody or anything on the track. There was no public highway crossing as I went along there. When the train got in about 15 steps ahead of me it began to whistle. After it blew about the second or third whistle the team got frightened and ran straight across the highway across from the moose. On this second or third whistle when the team got frightened the Bull Moose was something like 10 steps of me, not quite even with me yet. The first indication I had that they were frightened was when they threw up their heads and looked at the Moose. Then they turned across the highway to run and ran across as fast as they could. After this second or third blast the Moose was still whistling. It was a little past me by the time I stopped noticing what the Moose was doing, for they were running across the highway down in this ditch and I quit noticing the Moose. I don't suppose it whistled over three times after the team showed it was frightened, and at that time it was a little past the wagon."

Charley Sale also testified that both he and his son were thrown from the load of hay and his son sustained fatal injuries from which he died the next day. The whistle referred to was not a steam whistle but an air horn. Respondents introduced other evidence that the horn of the Moose was sounded a number of times near the place where the team became frightened. Plaintiff testified that there was no public crossing north within such distance as to require the train crew to give statutory crossing signals. The evidence introduced by the defendants did not aid plaintiff's case. The engineer, brakeman, and conductor testified...