State v. Cox

• Citation: 10 S.W.2d 940
• Decision Date: 03 October 1928
• Docket Number: No. 28671.,28671.
• Parties: STATE ex rel. MACLAY v. COX et al., Judges.
• Court: United States State Supreme Court of Missouri

10 S.W.2d 940

STATE ex rel. MACLAY v. COX et al., Judges.

No. 28671.

Supreme Court of Missouri, Division No. 1.

October 3, 1928.

Motion for Rehearing Overruled November 16, 1928.

Original proceeding in certiorari by the State, on the relation of Mamie Maclay, against Argus Cox and others, Judges of Springfield Court of Appeals, to quash an opinion, judgment, and record of said court in the case of relator against the Missouri Pacific Railway Company. 299 S. W. 626. Writ quashed.

Jones, Hocker, Sullivan & Angert and Ralph T. Finley, all of St. Louis, for relator.

Thos. J. Cole and Arnot L. Sheppard, both of St. Louis, and J. C. Sheppard, of Poplar Bluff, for respondents.

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, 299 S. W. 626, 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 main-line railroad track near the town of Summit, Mo. Plaintiff recovered a judgment against said defendant railway corporation in the sum of $5,000, 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 61 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 50 yards from the crossing. The roadway is some 8 feet lower than defendant's tracks, and as it turns west, about 50 or 60 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 hundred or three hundred feet, and the person on the road within 50 or 60 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 was downgrade and the locomotive was `coasting,' making very little noise. Besides the engineer, there was but one eyewitness to the accident, a Charles Marler, who testified on behalf of defendant as follows: `I saw him [plaintiff] coming down the road. I was between 75 and 80 yards from the railroad, northeast of the crossing. I saw him coming down the road, and I watched him, to see if he was going to try to beat the train across the crossing; and I could see the train, and he reached down to shift his gear, and just as he ran on the track the train hit him. He did not stop before he got on the track. He slowed up a little bit, to pick up speed. He slowed up, and then he picked up speed again. I saw him in the car. I don't think he had any curtains on the car. It looked to me like he was looking towards Potosi. From where he was he couldn't have seen the train until he was two telegraph poles from the crossing. Then he was close enough to see it. I could see it all the way. I never noticed, to see whether he was looking toward the train or not. I never noticed that. Just when he run on the track was when the train hit him and turned him right around. The automobile had not stopped before the train hit it; it wasn't still. He was coming about ten miles an hour. I can't say whether he shifted the gears or not. It looked to me like he did. He made a motion with his hands, and that is what I thought he was aiming to do.'

"On redirect examination he testified that: `I did not say he was in a little hollow and couldn't see the train. When he got up on the dump he could see it. When he went to shift his gears, he was looking down—wasn't noticing the train.'

"On recross-examination he further testified that: `This dump is right there at the track. When you are on the dump, you are on the track. I was 75 or 80 yards away. My father was with me. I couldn't tell which way he was paying attention to.'

"The evidence also showed this witness was 75 or 80 yards northeast of the crossing, on higher ground than deceased; there is no evidence that he made an examination as to the view from the point where deceased was approaching the crossing.

"George Wallace, plaintiff's brother, testified that he went over the next morning after the accident to ascertain the probable cause of deceased's death; that the wood at the wood yard along the switch track was ranked up as high as you could throw it off of a wagon; that he— `made a trip over there after this accident, and I was watching for the train, and it took seven seconds from the time you saw the train until it hit the crossing.' Q. Where is the point you could see the train? A. A little bit north of Cordias' wood yard. Q. What would you say as to the distance from the crossing? A. I would say it was two or three hundred feet, possibly. That is the first point I could see the train. Q. Where would you be standing to see the train at that place? A. Right where he was supposed to have shifted gears. Q. Where was that? A. Down in this little branch, before you make the turn to go up on the crossing. Q. That would be how far up to the track? A. Fifty or sixty feet. Your view would not increase any as you pass over that 50 or 60 feet. You would have to be nearly up to the track before you could see up on the dump. Q. And as you would keep coming up over that 50 feet, your view wouldn't be extended very much further?'

"The foregoing statement of facts, taking the evidence most favorable to plaintiff, may be briefly summarized as follows: A train coming north on defendant's main-line track could not be seen by deceased, in the position he was at the time, until it emerged from a point about opposite the north end of the wood yard; at that moment, assuming the deceased was at the place where the public road turned north, he would have been about 50 feet from the east rail of the track at the crossing, and the train would have had to have been within approximately 200 feet of the crossing, in order for it to have been within his line of vision. It is practically conceded the sweet clover and weeds were not of sufficient height to obstruct the view at that point. The train which struck deceased was coasting downgrade, making very little noise comparatively and was traveling at the rate of about 40 miles per hour; the statutory signals were not given. Deceased was driving his car at the rate of about 10 miles per hour. Deceased, who was familiar with the crossing, did not stop his car, but slowed up some, evidently to shift the...