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

• Decision Date: 07 April 1930
• Docket Number: No. 27244.,27244.
• Citation: 30 S.W.2d 37
• Parties: SING v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

30 S.W.2d 37

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

No. 27244.

Supreme Court of Missouri, Division No. 2.

April 7, 1930.

Motion for Rehearing Overruled June 11, 1930.

Motion to Transfer to Banc Overruled July 3, 1930.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Elizabeth E. Sing against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

E. T. Miller, of St. Louis, and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for appellant.

Atwood, Wickersham, Hill & Chilcott, of Kansas City, for respondent.

DAVIS, C.

This is an action for damages by plaintiff, predicated on her husband's death caused by the negligence of defendant. The jury returned a verdict in plaintiff's favor in the sum of $10,000. Defendant appealed.

The evidence adduced in behalf of plaintiff warrants the finding that James W. C. Sing (hereinafter called Sing or deceased), plaintiff's husband, on the morning of September 19, 1923, about 7:20 o'clock, was killed by defendant's passenger train while driving a Ford sedan along a public highway, much used, at its intersection with defendant's tracks. The passenger train was twenty-five minutes late. The railroad crossing was two or three miles north of Olathe, Kan. Sing, at the time of death, was driving to Kansas City, Mo., where he and his wife had their domicile. He was thirty-two years of age, and she was twenty-four. Besides his wife, he left two children, a boy and a girl, aged five years and three, respectively. At the time of the accident the plaintiff was visiting her parents in Arkansas.

On the evening of September 18, 1923, Sing, accompanied by a Miss Lyda, drove his Ford sedan to the home of Miss Lyda's mother in Olathe. A heavy rain came up and forced them to remain there that night. The following morning, before 6 o'clock, they left Olathe. Sing drove the sedan and Miss Lyda sat on his right. A short distance out of Olathe, on their way to Kansas City, a tire became loose and fell off. They stopped to replace it. Thereupon they proceeded at a slow pace to the crossing where the collision occurred. The road was very muddy and ran through land known as gumbo. On arriving at the crossing, Sing brought the automobile to a stop about two lengths of the automobile from the south-bound tracks. Defendant's railroad was "double-tracked" at this point. The railroad tracks ran northeast and southwest. The highway, over which Sing's automobile approached the crossing, ran slightly northeast and nearly parallel with the railroad tracks. On stopping the automobile two lengths from the tracks, the engine of the automobile ceased to run, inadvertently probably, or was killed as one witness put it. Before starting the engine, both Sing and Miss Lyda looked and listened. They were unable to see or hear a train approaching. Sing then started the engine and drove his car, at the rate of two to three miles an hour, over the crossing. When his automobile reached the north-bound tracks, with its rear wheels over the last rail of said tracks, a north-bound train of defendant struck the automobile, killing Sing and seriously injuring Miss Lyda. The automobile was demolished. Miss Lyda stated, on cross-examination, that she and Sing looked and continued to look both ways for the approach of a train. The approach to the tracks was up a grade. Some few feet before it reached the crossing, the highway turned and crossed the tracks at about a right angle. Miss Lyda stated that she did not hear a whistle or bell.

Plaintiff's evidence further tends to show that it was "misting rain" and that a fog hung over the country thereabouts in pockets, sheets, and spots. In some places it lay closer to the ground than in other places. The road as they approached the crossing was lower than the railroad tracks.

The evidence also tends to show that the crossing boards were warped and that the condition of the crossing impeded and interfered with the progress of Sing's car.

Defendant's evidence tends to show that the train that collided with Sing's automobile whistled at the whistling post a quarter of a mile south of the crossing. The engineer of said train testified that his post was on the right side of the engine. From the whistling post, a quarter of a mile south, he observed the crossing that morning. The track from the whistling post to the crossing was straight. At the whistling post his vision extended a quarter mile to the left of the tracks, and from that distance he could see an automobile sixty feet to the left of the crossing. He was able to see from the whistling post, that morning, the tracks as he approached the crossing. He first ascertained that a collision had occurred when he saw fragments of the automobile on the pilot of the engine. The train was running about fifty miles an hour. He applied the brakes subsequent to the collision.

Defendant's witness Lewis testified that there was nothing to prevent the engineer from seeing the automobile as the crossing was approached. The train whistled only once. The automobile had nearly cleared the track when it was struck on the right rear wheel. The automobile was going at a speed of from two to three miles an hour. The people in the automobile were oblivious to their peril. The automobile never stopped or picked up speed subsequent to starting over the tracks.

Other pertinent facts, necessary to a discussion of the issues, will be adverted to in the opinion.

A Kansas statute provides that, on approaching a public road crossing, a whistle shall be sounded three times at least eighty rods from the crossing. A statute also provides that a railroad shall make and keep crossings in good repair. Both plaintiff and defendant pleaded and introduced in evidence statutes and decisions of the state of Kansas.

I. Sing, the deceased, was a resident of the state of Missouri at the time of his death. He was killed by defendant's train in the state of Kansas, while operating an automobile. It follows that this cause is to be determined and adjudicated according to the decisions and laws of the latter state. Woodard v. Bush, 282 Mo. 163, 220 S. W. 839.

II. Defendant contends that it was entitled to a directed verdict. It predicates its contention on the assumption that the facts failed to justify the court in giving to the jury either of three instructions, each of which authorized a verdict in plaintiff's favor. It also asks a reversal of the judgment and a remanding of the cause, if it be found that any one of said instructions was not justified by the evidence. The instructions will be considered in order.

The first instruction challenged permits a recovery by plaintiff on the finding by the jury that defendant failed to sound the whistle on the engine three times at least 80 rods from the crossing. We take judicial notice that 80 rods is 440 yards, or a quarter of a mile. We have ruled many times that, where a defendant fails to stand on a demurrer to the evidence at the close of plaintiff's case, and introduces testimony, the plaintiff is entitled to the most favorable inferences from any and all the evidence adduced, whether it be plaintiff's or defendant's evidence.

The testimony of Miss Lyda advises that, when deceased brought his Ford sedan to a stop about two car lengths from the tracks and killed the engine, deceased, while stopped and with the engine dead, leaned over the wheel and looked and listened. Witness did not hear anything. On cross-examination she said that she and deceased kept looking in both directions until they drove on the track and crossed over the first track to the next track. "Q. You did not hear or see the train at all, did you? A. No, sir."

The testimony of Adams tends to show that he was 150 yards northeast of the crossing at the time of the accident. He was not paying any attention or listening for a whistle, and he did not hear any whistle before the collision. He had driven over this crossing four times a day for four months in an automobile with the engine running, and, under similar conditions and circumstances, except the presence of a fog, on some of these occasions he had heard the train whistle for that crossing.

A Miss Alferman was a witness for defendant. Her home was distant about 300 feet from the road. She was doing the dishes in the kitchen at the time of the collision. As it came toward the crossing, she saw the train through the window. It whistled when opposite a culvert, which was about 400 feet from the crossing where the collision occurred. (In a pretrial statement she said she heard the train whistle about 40 rods from the crossing and she heard it only once. No danger whistle was sounded.) She testified she heard no other whistle prior to the whistling at the culvert; but she further said that that was no sign it did not whistle before, because one is not always conscious.

Defendant seemingly does not controvert the rule that negative evidence, where the facts justify it, is substantive evidence of a fact, but it avers that it was the duty of deceased to listen as well as look for the approach of the train to the time he entered upon the north-bound tracks, and that as the evidence fails to show that either he or Miss Lyda listened after the car started again after being stopped, or that Adams or Miss Alferman were listening for or paying attention to the approach of the train, there was no evidence tending to show that the train did not whistle at least 80 rods from the crossing. The testimony of Miss Lyda tends expressly to show that, while the automobile was stopped, she and deceased looked and listened attentively. Furthermore, it also expressly tends to show that both she and deceased looked in both directions while proceeding over the crossing. She stated positively that she did not hear or see the train at all. From these facts it may be inferred that, as her senses were alert and her...