Sullivan v. Atchison, Topeka & Santa Fe Railroad Co.

• Decision Date: 30 July 1927
• Docket Number: 25819
• Citation: 297 S.W. 945,317 Mo. 996
• Parties: Margaret E. Sullivan, Administratrix of Estate of John L. Sullivan, Appellant, v. Atchison, Topeka & Santa Fe Railroad Company, William A. Delong and C. W. Hosford
• Court: Missouri Supreme Court

297 S.W. 945

317 Mo. 996

Margaret E. Sullivan, Administratrix of Estate of John L. Sullivan, Appellant, v. Atchison, Topeka & Santa Fe Railroad Company, William A. Delong and C. W. Hosford

No. 25819

Supreme Court of Missouri

July 30, 1927

Motion for Rehearing Overruled. September 16, 1927.

Appeal from Carroll Circuit Court; Hon. Ralph Hughes Judge.

Affirmed.

Franken & Timmons for appellants.

(1) The failure of the defendants to observe the provisions of Section 29 of Ordinance No. 28 of the Town of Carrollton requiring an employee to be stationed on the rear end of every train backing within the limits of said town for the purpose of giving danger signals, was negligence per se. Hale v. Railway Co., 287 Mo. 520; Cytron v. Transit Co., 205 Mo. 716; Hovarka v Transit Co., 191 Mo. 441; Sluder v. Transit Co., 189 Mo. 107; Bergman v. Railroad, 88 Mo. 678; Dahlstrom v. Ry. Co., 108 Mo. 525; Kelly v. Union Ry. Co., 95 Mo. 279. (2) The negligence of the driver of the automobile cannot be imputed to John L. Sullivan, who was riding therein as a passenger or guest. Rawie v. Ry. Co., 274 S.W. 1035; Corn v. Ry. Co., 228 S.W. 78; Mahany v. Ry. Co., 286 Mo. 601; Boyd v. Kansas City, 291 Mo. 622; State ex rel. Hines v. Bland, 237 S.W. 1018; State ex rel. Transfer Co. v. Trimble, 250 S.W. 396; Treadway v. United Rys. Co., 300 Mo. 156; Montague v. Interurban Ry. Co., 305 Mo. 283; Stotler v. Railroad, 200 Mo. 107; Sluder v. Transit Co., 189 Mo. 138; Farrar v. Railroad, 249 Mo. 210, 219; 29 Cyc. 543; Pusey v. Ry. Co., 106 S.E. 452; Barry v. Harding (Mass.), 139 N.E. 298; Moore v. Admeidinger, 15 Ohio App. 503; Pope v. Holpern, 223 P. 470; Clark v. Ry. Co., 224 P. 920; Pine Bluff Co. v. Whitelaw, 227 S.W. 13. (3) The deceased, John L. Sullivan, was not guilty of contributory negligence as a matter of law. Mahany v. Rys. Co., 286 Mo. 601, 254 S.W. 21; Treadway v. United Rys. Co., 300 Mo. 156; Rawie v. Ry. Co., 274 S.W. 1031; Melican v. Construction Co., 278 S.W. 366; Durbin v. Ry. Co., 275 S.W. 361; Stotler v. Railroad, 200 Mo. 107; Praught v. Ry. Co., 144 Minn. 309, 175 N.W. 998; L. & N. Ry. Co. v. Scott, 184 Ky. 319, 211 S.W. 747; Hines v. Johnson, 264 F. 465; Corn v. Ry. Co., 228 S.W. 78; 18 A. L. R. 303, 309-361, annotation; Taylor v. St. Ry., 256 Mo. 191; Farrar v. Railroad, 249 Mo. 219; Preston v. Railroad Co., 292 Mo. 442; Kidd v. Ry. Co., 274 S.W. 1090; Rigley v. Pryor, 290 Mo. 10. (4) Even though John L. Sullivan were guilty of contributory negligence, still there was ample evidence to require submission to the jury the question as to whether the defendant railway company and its servants had ample time to warn the driver of the automobile and the said Sullivan of the near approach of said backing train, by the exercise of ordinary care, after they saw, or by the exercise of ordinary care could have seen, the perilous position of said occupants of said automobile and their obliviousness to danger, which warning could have been heard and acted upon in time to have prevented the death of Sullivan. Bergman v. Railroad, 88 Mo. 678; Kelly v. Union Ry. Co., 95 Mo. 279; Dahlstrom v. S. Ry. Co., 108 Mo. 525; Ellis v. Railroad, 234 Mo. 680; Maginnis v. Mo. Pac. Ry. Co., 268 Mo. 667; Murrell v. Railroad, 279 Mo. 92; Tavis v. Bush, 280 Mo. 383; Hill v. K. C. Rys. Co., 289 Mo. 204; Logan v. Ry. Co., 300 Mo. 611; State ex rel. Wabash Ry. Co. v. Trimble, 260 S.W. 1000; Morgan v. Railroad Co., 159 Mo. 281.

Cyrus Crane, S. J. Jones and Sam Withers for respondents.

(1) The court did not err in sustaining the demurrer at the close of plaintiff's evidence. (a) The deceased was himself guilty of negligence. Burge v. Railroad, 244 Mo. 94; Tannehill v. Railroad, 279 Mo. 168; Leapard v. K. C. Rys. Co., 214 S.W. 268; Friedman v. Rys. Co., 193 Mo. 235; Sorrell v. Payne, 247 S.W. 462; Ry. Co., v. Sellers, 5 F.2d 31; Paramore v. Ry. Co., 5 F.2d 912; Trenholm v. Ry. Co., 4 F.2d 562. (b) The admitted negligence of the driver of the car, and deceased's own negligence, either or both were the proximate cause of the death. Peterson v. Railway, 270 Mo. 67; Lumb v. Forney, 190 S.W. 988. (c) The humanitarian rule was not applicable. Taylor & Sons Brick Co. v. Railroad, 213 Mo. 715; Butler v. Railway, 293 Mo. 259; State ex rel. v. Reynolds, 289 Mo. 479; Dyrcz v. Railroad Co., 238 Mo. 33; Beal v. Ry. Co., 256 S.W. 733; Sullivan v. Railroad Co., 308 Mo. 48. (2) The deceased, for whose death this action was brought, and his sister, the driver of the automobile were on a joint enterprise. It is admitted by appellant's counsel that the sister, the driver, was negligent. There can be, therefore, no recovery in this case and the trial court was clearly right in sustaining the respondents' demurrer to the evidence. Gersman v. Ry. Co., 229 S.W. 170; Tannehill v. Railroad Co., 279 Mo. 171.

Lindsay, C. Seddon, C., concurs; Ellison, C., not sitting.

OPINION

LINDSAY

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 three 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 six 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 travelled 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 westbound trains, and the south main-line track carries eastbound trains. The distance between them is twelve feet. The collision in question occurred on the north main-line or westbound 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 sixty-five 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 off-shoot of the coal track that has been mentioned. Going south on Main Street and passing this last-mentioned track, which is about sixty-five feet north of the main-line track, the traveller has a clear view of the tracks of the defendant to the eastward, for about one-half mile. At a point about thirteen feet north of the north main-line or westbound track, and ten feet east of the east street-curb line of Main Street, there was a wig-wag signal. This signal is a round disc on a pole about fourteen feet high. The disc is about twenty-four 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 approaching, 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 eastbound track. Several of the cars of this train were left standing on the eastbound 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 westbound 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 westbound 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 cars at the west end were flat cars. In backing westward along the spur and thence on the north main-line or westbound 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...