State ex rel. Maclay v. Cox

• Citation: 10 S.W.2d 940,320 Mo. 1218
• Decision Date: 03 October 1928
• Docket Number: 28671
• Parties: The State ex rel. Mamie Maclay v. Argus Cox et al., Judges of Springfield Court of Appeals
• Court: United States State Supreme Court of Missouri

10 S.W.2d 940

320 Mo. 1218

The State ex rel. Mamie Maclay v. Argus Cox et al., Judges of Springfield Court of Appeals

No. 28671

Supreme Court of Missouri

October 3, 1928

Motion for Rehearing Overruled November 16, 1928.

Writ quashed.

Jones Hocker, Sullivan & Angert and Ralph T. Finley for relator.

(1) Where the record shows that the Court of Appeals failed to apply the rules of law announced by the Supreme Court to a similar state of facts, the Supreme Court will quash the record, and in such case it is immaterial whether the Court of Appeals intentionally contravened such decisions. State ex rel. Boeving v. Cox, 276 S.W. 870; State ex rel. Kansas City v. Trimble, 298 S.W. 833. (2) Under the facts stated by respondents in their opinion the deceased could not be held guilty of contributory negligence as a matter of law, and in so holding the respondents contravened the following decisions of the Supreme Court: Toeneboehn v. Frisco, 298 S.W. 804; Bond v. Frisco, 288 S.W. 777; State ex rel. Iron Works v. Allen, 289 S.W. 583; Barz v. Fleischmann Yeast Co., 308 Mo. 288; Peterson v. Railroad, 265 Mo. 462; McGee v. Wabash, 214 Mo. 545; Monroe v. Railroad, 280 Mo. 488; State ex rel v. Reynolds, 286 Mo. 221; McDaniel v. Hines, 292 Mo. 492; State ex rel. v. Reynolds, 286 Mo. 204; Roques v. Railroad, 264 S.W. 477. (3) The opinion of the respondents is contrary to the decisions of the Supreme Court which hold that the deceased is presumed to have been in the exercise of ordinary care and that the prima-facie case made by plaintiff cannot be overcome by the verbal testimony of the defendant's witnesses. McGee v Wabash, 214 Mo. 545; Monroe v. Railroad, 280 Mo. 488; State ex rel. v. Reynolds, 286 Mo. 221. (4) The respondents failed to apply the rule of the Supreme Court which holds that the deceased had a right to assume that signals would be given and that he was under no duty to stop, get out and look for the train. Jackson v. Railroad, 189 S.W. 381; Johnson v. Railway Co., 77 Mo. 546; Brown v. Railway Co., 252 S.W. 55; Pienieng v. Wells, 271 S.W. 65. (5) The respondents also failed to apply the rule of the Supreme Court which requires that a clear case must be made to convict the dead of contributory negligence as a matter of law. McDaniel v. Hines, 292 Mo. 492; Roques v. Railroad, 264 S.W. 477; State ex rel. v. Reynolds, 286 Mo. 204. (6) In holding that the deceased was guilty of contributory negligence as a matter of law, the respondents contravened the rule of the Supreme Court to the effect that to fail to halt an automobile before going upon a railroad crossing is not conclusive evidence of contributory negligence. Shaffer v. Rock Island Ry. Co., 300 Mo. 477; State ex rel. v. Trimble, 254 S.W. 846.

Thomas J. Cole, Arnot L. Sheppard and J. C. Sheppard for respondent.

(1) The relator is mistaken in her interpretation of the opinion of the Court of Appeals when she assumes that the court relied upon the testimony of the witness for defendant Marler, for any of the facts upon which it based its finding that Maclay did not look for the approaching train. It is perfectly evident that the court meant merely to say that its finding was also in keeping with what the witness Marler had said. Toeneboehn v. Railroad Co., 298 S.W. 803; Porter v. Mo. Pac. Ry. Co., 199 Mo. 98. (2) The cases cited under that point are not apposite to the case at bar. (3) The Court of Appeals did not rely upon the testimony of defendant's witnesses, but relied upon the physical facts as shown by the plaintiff's star witness, George Wallace. (4) Answering point four in relator's brief in which it is claimed that the ruling of the Supreme Court which holds that the deceased had the right to assume that signals would be given, and that he was under no duty to stop, get out and look for a train, was violated by the Court of Appeals' opinion, we desire to say that the cases cited by relator under this point, do not bear out the statement. Jackson v. Ry. Co., 77 Mo. 552. (5) The facts set out in the opinion of the Court of Appeals, disclose a clear case of negligence on behalf of the deceased, and therefore its decision is not in conflict with any ruling of the Supreme Court. It is perfectly clear that the opinion has nothing to say about the deceased failing to halt or stop his automobile before going on the railroad crossing, and the ruling is not based in any respect on the failure of the deceased to stop his automobile, and, therefore, is not in conflict with any ruling of any court. (6) On the other hand, the Court of Appeals, in its opinion, endeavored to follow, and we think was eminently successful in following the rulings of the Supreme Court in the cases involving a similar state of facts. Burge v. Railroad, 244 Mo. 76; Morrow v. Hines, 233 S.W. 490; Evans v. Railroad, 289 Mo. 493; State ex rel. v. Bland, 237 S.W. 1018; Dickey v. Railroad Co., 251 S.W. 112; Alexander v. Railroad Co., 233 S.W. 44; Hayden v. Railroad Co., 124 Mo. 566; Tannehill v. Railroad, 279 Mo. 158.

OPINION

Seddon, C.

This is an original proceeding in certiorari, commenced in this court, wherein the relator, Mamie Maclay, seeks the quashal of the opinion, judgment and record of the Springfield Court of Appeals in the certain cause, entitled, "Mamie Maclay, respondent, v. Missouri Pacific Railway Company, appellant," commenced in the Circuit Court of Iron County, and appealed to the Springfield Court of Appeals. The plaintiff in the latter cause (relator herein) sued to recover damages for the alleged wrongful death of her husband, John Maclay, who was struck and killed, on September 12, 1923, by defendant's railroad train while he was driving an automobile upon a public road at its intersection with defendant's mainline railroad track near the town of Summit, Missouri. Plaintiff recovered a judgment against said defendant railway corporation in the sum of $ 5000, from which judgment the defendant appealed to the Springfield Court of Appeals. An opinion was filed in the latter court, at the October term, 1926, affirming the judgment of the Circuit Court of Iron County. Subsequently, a rehearing of the cause was granted and the cause was reargued and resubmitted in said Court of Appeals, at the March term, 1927, resulting in the filing of an opinion reversing outright the judgment of the Circuit Court of Iron County. Relator, claiming that the latter opinion is in conflict with certain controlling decisions of this court, in due time applied to this court for the issuance of a writ of certiorari, and the record of said Court of Appeals has been returned to this court in compliance with our preliminary writ issued upon relator's application.

The evidentiary facts, and the ultimate conclusion of law reached by said Court of Appeals upon such facts, are thus stated in the opinion of that court:

"Plaintiff in her petition charged negligence in the failure of defendant's servants to observe the statutory signals and in operating the train at a dangerous rate of speed considering the character of the crossing. The answer consisted of a general denial and a plea of contributory negligence.

"Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given. The facts are substantially as follows: Plaintiff's husband, John Maclay, was about sixty-one years of age and in perfect health at the time of his death. His hearing and eyesight were unimpaired. He was manager of the Potosi Mill & Elevator Company and had lived in that community many years. Summit is a flag station located at the peak of a hill on defendant's railroad; at that point the railroad runs north and south; the crossing where deceased was killed is located about one quarter of a mile north of Summit; there is a wood and lumber yard about 225 yards north of the station, on the east side of defendant's tracks; a spur track ran from defendant's main-line track to this yard, entering it at the north end, where there was a gate situated about 400 feet south of the crossing; at the time of the accident wood was stacked along this spur track, about two cords high, for a distance of 310 feet; there was also a thick growth of trees with dense foliage along the spur track; there was much evidence that, between the north end of the wood yard and the crossing, and east of the main-line track, weeds and a new kind of clover, which seems to attain a height of some five feet, were growing on defendant's right of way at the time of the accident. This clover and weeds are out of the case, however, as it is quite clear deceased's vision was not materially obstructed thereby. The highway on which deceased was driving at the time of his death runs parallel to the railroad track for almost a quarter of a mile and then curves a little to the northeast and then turns back northwest about fifty yards from the crossing; the roadway is some eight feet lower than defendant's track, and as it turns west, about fifty or sixty feet from the tracks, it approaches the crossing on a dump; on account of the cord wood and trees heretofore mentioned, defendant's tracks could not be seen by a person traveling north along the public road until the train would be within two or three hundred feet and the person on the road within fifty or sixty feet of the crossing, or just at the point where the public road turned west before reaching the crossing; after passing this point to the crossing the road was rather steep. Deceased was familiar with this crossing.

"At the time of the accident he was driving his automobile along this public road in a northerly direction, which was the same direction the train was running that killed him; the train as it approached this crossing, was going at the rate of about forty miles per hour; it...