Sullivan v. Atchison, T. & S. F. Ry. Co.

Decision Date30 July 1927
Docket NumberNo. 25819.,25819.
Citation297 S.W. 945
CourtMissouri Supreme Court
PartiesSULLIVAN v. ATCHISON, T. &. S. F. RY. CO. et al.

Appeal from Circuit Court, Carroll County; Ralph Hughes, Judge.

Action by Margaret E. Sullivan, administratrix of the estate of John L. Sullivan, deceased, against the Atchison, Topeka & Santa Fe Railway Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Franken & Timmons, of Carrollton, for appellant.

Cyrus Crane, of Kansas City, and S. J. Jones and Sam Withers, both of Carrollton, for respondents.

LINDSAY, C.

The plaintiff asked recovery of $10,000 as a penalty for the death of John L. Sullivan, who was killed when an automobile in which he was riding was struck by a freight train of defendant railway company, operated by the individual defendants, employees of the railway company.

At the close of the evidence for the plaintiff the court gave peremptory instructions for each of the defendants. The appeal is from the order overruling plaintiff's motion to set aside the involuntary nonsuit taken.

At the time in question, January 3, 1923, at a little before 3 o'clock in the afternoon, the deceased was riding in a Ford touring car, driven by his sister, Evaline Sullivan. The curtains were up. They were the only occupants of the car, and John L. Sullivan sat in the front seat on the right-hand side of his sister. They lived on a farm 6 miles north of Carrollton, and at the time were on their way to the Wabash Depot, in the south part of the city of Carrollton, to meet some friends expected to arrive on the afternoon train. They were driving south on Main street, a much traveled street in said city, which is crossed by the tracks of the defendant railway company. The weather was clear, and the street was dry. The Santa Fe tracks do not cross South Main street in a due east and west direction, but run somewhat from northeast to southwest. Defendant has two main line tracks at that point. The north main line track carries west-bound trains, and the south main line track carries east-bound trains. The distance between them is 12 feet. The collision in question occurred on the north main line or west-bound track. At a point about 165 feet east of the center of the crossing a spur track leads out from the north main line track, and runs thence somewhat northeasterly and parallel with the north main line track. The spur in its easterly course also connects with another spur track.

The foregoing are the tracks especially connected with the facts attending the collision between defendant's train and the automobile. However, as somewhat more completely showing the scene, reference is made to certain other tracks of defendant. In going south on Main street, the first track crossed is an east and west track, spoken of as a coal track. This crosses Main street about 125 feet north of the north main line track, the place of the collision. Also, at a point about 65 feet south of the coal track, is another track, which does not cross Main street, but stops on the east side of Main street. It is a spur or offshoot of the coal track that has been mentioned. Going south on Main street and passing this lastmentioned track, which is about 65 feet north of the main line track, the traveler has a clear view of the tracks of the defendant to the eastward for about one-half mile. At a point about 13 feet north of the north main line or west-bound track and 10 feet east of the east street curb line of Main street there was a wigwag signal. This signal is a round disc on a pole about 14 feet high. The disc is about 24 inches in diameter, and has printed on it in large letters the word "stop." There is a gong on, or a part of, this signal. When trains are appraching, or, are standing within a certain distance of the crossing, the disc swings and the gong rings. The disc can be seen by persons approaching from the north at a distance of several hundred feet. About one hour before the collision occurred a local freight train of defendant came in from the west, on the south main line or east-bound track. Several of the cars of this train were left standing on the east-bound track at some distance to the west of Main street. The engine and other cars thence went eastward for the purpose of switching and setting certain cars, and, just prior to the time when the deceased and his sister approached the north main line or west-bound track, the engine and cars of this freight train returned, backed westward, along the spur track that has been described as leading out of the north main line track at a point 165 feet east of the crossing, and thence on and along the north main line or west-bound track over the Main street crossing. The train consisted of the engine, which was at the east end of the train, and was facing east, and nine cars. The two ears at the west end were flat cars. In backing westward along the spur and thence on the north main line or west-bound track, the cars were upon a slight curve, which prevented the engineer, who was on the right side of the engine, from seeing the crossing. The fireman, who was on the left-hand, or north side of the engine, looking westward, could see the crossing.

Upon certain points there is no material variance in the testimony of the witnesses, all of whom were called by plaintiff. The train, as it moved back westward along the spur and upon the north main line or west-bound track, was moving slowly, or at about 6 miles an hour. The gong on the wigwag signal was sounding, and the disc was moving. There was testimony that the whistle for the crossing was sounded as the train started to back, and that the bell of the engine was ringing in approaching the crossing. The day was clear. As the train was thus backed slowly westward, the automobile approached the crossing coming from the north. The testimony of several of the witnesses was that when they first saw it, at a point about 75 feet north of the west-bound main line track on which the train was approaching, the automobile was moving at a speed of about 10 miles an hour.

As we have heretofore indicated, when the automobile reached the point opposite the track which ended on the east side of Main street, or about 65 feet north from the west-bound main line track, there was no obstruction whatever to the view to the eastward. Virtually all the testimony of those who saw the accident is that, when the automobile in which deceased was riding was about 70 or 75 feet north of the main line track the west end of the advancing flat car at the end of the train in question was 30 or 35 feet east of the crossing. The testimony is that at that time the speed of the train was about one-half the speed of the automobile. At that time also an automobile coming from the south on Main street stopped at a point about 30 feet south of the north main line track, to allow the train to pass. The automobile in which deceased was riding, moving south, was struck near its center, by the end of the fiat car of the train. The automobile was pushed westward, and John L. Sullivan was thrown or fell out partly between the rails, at a point a little beyond the west line of the street. The wheels of the flat car passed over his neck, killing him instantly. The automobile was pushed on somewhat farther west" ward to or near the platform of a water crane. Evaline Sullivan, the driver of the car, was thrown out and so injured that she lived only a few minutes.

The plaintiff called as witnesses the individual defendants who were operating the train, and also the occupants of the automobile which had stopped on the south side of the track: also another witness, who, standing at a point some 75 feet away, witnessed the occurrence. The testimony shows that the automobile in which the deceased was riding was owned by his sisters, Evaline and Margaret E. Sullivan, the administratrix; that John L. Sullivan had no interest in the automobile; that he was a single man and lived with his two said sisters on the farm that has been mentioned. The testimony further is that both of the women habitually drove the automobile, but that John L. Sullivan did not drive it; that it was in good condition, the steering gear was in good shape, and the brakes in perfect condition; that Miss Evaline Sullivan had good eyesight and good hearing; that she and John L. Sullivan came to town frequently, and both were familiar with this crossing. As to John L. Sullivan himself, the testimony was that some years previous to the time in question, he had received an injury to his head, through being kicked by a horse; that, as a result, there was a partial paralysis of his left side. His brother Ambrose Sullivan testified that John L. Sullivan did not have the real use of his left side he should have; that he was a little deaf in one ear, the left ear; that his vision was "fairly good, normal"; that he was slow of speech, and slow of action; that he did not talk or move as readily as an ordinary person; that John L. Sullivan had ridden many times in an automobile over that crossing, knew about the swinging signal at the crossing, often came to Carrollton in the automobile, driven by the one or the other of his said sisters. Miss Margaret Sullivan, testifying as to the sight and hearing of John L. Sullivan, was somewhat indefinite and evasive in her statements. However, her testimony was that John Sullivan could hear, and engaged in ordinary conversation, sometimes went to town by himself, went about the neighborhood, "chored around with the stock on the farm," and that she "supposed" he could see an approaching car a "reasonable distance."

The plaintiff pleaded the provisions of an ordinance of the city of Carrollton making it the duty of defendant when backing a train to have a man stationed on the top of the car at the end farthest from the engine, to give danger signals; pleaded failure to...

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