Smith v. Chicago Great Western R. Co.

• Decision Date: 05 April 1926
• Docket Number: No. 15455.,15455.
• Citation: 282 S.W. 62
• Parties: SMITH v. CHICAGO GREAT WESTERN R. CO.
• Court: Missouri Court of Appeals

282 S.W. 62

SMITH v. CHICAGO GREAT WESTERN R. CO.

No. 15455.

Kansas City Court of Appeals. Missouri.

April 5, 1926.

Appeal from Circuit Court, Andrew County; Guy B. Park, Judge.

"Not to be officially published."

Action by John P. Smith against the Chicago Great Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Booher & Williams and Warner Woolverton, all of Savannah, for appellant.

Pross T. Cross, of Lathrop, K. D. Cross, of Savannah, and Maurice P. Murphy, of St. Joseph, for respondent.

BLAND, J.

This is an action to recover the statutory penalty for the death of plaintiff's wife, alleged to have been caused by the negligence Of the defendant. There was a verdict and judgment in favor of plaintiff in the sum of $5,000, and defendant has appealed.

The facts show that deceased was instantly killed about noon of December 30, 1921, when an enclosed Ford automobile which she was driving north on Sparta road in the city of St. Joseph, Mo., was struck by one of defendant's passenger trains, consisting of an engine and five cars, going west. In addition to deceased there were riding in the automobile her daughter-in-law, who was on the rear seat, and two children of the latter, one, a boy, riding on the front seat, and the other, a girl, on the rear seat. The girl was also killed. At the time of the collision the train was running at a rate of speed from 30 to 40 miles per hour, while the automobile was running at the rate of 8 to 10 miles per hour. There were seven railroad tracks crossing the road at the place in question. Defendant's train was being operated on the first track south of the north track. The center of the next track south of the track where the accident occurred was 17.3 feet from the center of that track. Coming south, the second track was 65 feet, the third 78.6 feet, the fourth 181.6 feet, and the fifth track 189.6 feet from the track on which the train was running. There was a brick house a short distance east of Sparta road and between the second and third tracks south of the one on which the train was running. In approaching the place of the collision the view of the occupants of the automobile was obstructed in both directions by weeds and various other objects, including said house and several freight cars standing on the tracks. However, deceased attempted to look in both directions.

When the automobile reached a point about opposite the brick house a noise to the left was heard by the occupants of the car, which sounded to them like the "shifting of box cars." This caused deceased to slow up to nearly a dead stop, when she looked and listened. Deceased started up again, and when they were almost to the first track south of the track on which the collision occurred they heard the noise again — "heard it two or three times." No noise from the east, or in the direction of the approaching train, was heard. The evidence shows that the train did not sound a whistle or ring a bell. Deceased continued to look in both directions until she arrived at a point where she could see the train approaching. There is some dispute as to where this was. Defendant states that there is evidence that it was as little as 17 feet from the track on which the train was approaching, and that "deceased made no effort to stop." The evidence was that at this time the train was 100 to 150 feet away, coming at the rate of speed from 30 to 40 miles an hour. The train struck the automobile at the latter's rear wheel.

The petition pleads a cause of action under the humanitarian rule and failure to comply with the ordinance of the city of St. Joseph limiting the speed of trains within the city limits of that city to 10 miles per hour, and requiring a bell to be rung continually by trains when they were being run in the city, which ordinance was introduced in evidence. The cause was submitted to the jury by plaintiff on both the straight negligence theory and the humanitarian theory of recovery. There was no testimony offered by the defendant, but at the close of plaintiff's case it offered a demurrer to the evidence, which was a general demurrer, and not specifically directed at either theory of recovery. Defendant now insists that the demurrer to the evidence should have been sustained for the reason that there was no right of recovery shown on either theory. Under the circumstances it is estopped from making this contention, having joined with plaintiff in offering instructions on these theories. Torrance v. Pryor (Mo. Sup.) 210 S. W. 430; Dincler v. Ry. Co. (Mo. App.) 265 S. W. 113.

However, we think that plaintiff made out a cause under the humanitarian theory at least, and this being true he was entitled to recover. Defendant's servants had no right to expect a clear track; it was their duty to keep a constant lookout from both sides of the engine cab to discover persons upon the crossing. State ex rel. Wabash Ry. Co. v. Trimble (Mo. Sup.) 260 S. W. 1000 1002, 1003. Defendant insists that there was not sufficient time for its servants to have stopped the train after having seen deceased. In arguing this point, it...