Tannehill v. Kansas City, C. & S. Ry. Co.
| Citation | 279 Mo. 158,213 S.W. 818 |
| Decision Date | 05 July 1919 |
| Docket Number | No. 19872.,19872. |
| Parties | TANNEHILL v. KANSAS CITY, C. & S. RY. CO. |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Cass County; Andrew A. Whitsett, Judge.
Action by James E. Tannehill, curator of the estate of Ruth K. Tannehill and others, against the Kansas City, Clinton &. Springfield Railway Company. From judgment for defendant, plaintiff appeals. Affirmed.
Appellant, as the curator of certain minor children of one H. Earl Tannehill, deceased, sued to recover damages for the negligent killing of the latter by a passenger train of defendant.
Upon a trial nisi, the court at the close of plaintiff's case in chief sustained defendant's demurrer to the evidence. Thereupon plaintiff took a voluntary nonsuit with leave. Cast in his motion to set this nonsuit aside, plaintiff in the conventional mode appealed.
The grounds upon which plaintiff, pursuant to his petition, seeks to fix liability upon defendant, are: (a) The failure and neglect of defendant's servants, agents, and employs in charge of said train to sound the whistle or ring the bell upon defendant's locomotive at the crossing where the decedent was struck and killed; and (b) the negligent failure to avoid striking and killing decedent at a place whereat he could, and ought to, have been seen in a position of danger in time to have stopped the train and thus avoided killing him. Defendant's answer is a general denial and a plea of decedent's contributory negligence.
Decedent, who lived at Garden City, Mo., while riding in an automobile was struck and killed at a grade crossing of a public highway, called in the record the "Kenagy crossing," on December 18, 1914. The time was about 1 o'clock in the afternoon. The train was practically on time. The day was cloudy and overcast, damp and foggy, or misty. A light snow partially covered the ground, and the roads were muddy, or slushy. The railroad and the highway crossed at an angle of 45 degrees.
Decedent and one of his brothers were returning to their home at Garden City from a trip to Clinton in an automobile. Decedent's brother was driving the car; which car was jointly owned by decedent, the brother who was driving, and another brother. The curtains of the car were down as the car approached this crossing, though a view of objects to the side was obtainable through celluloid covered spaces, or windows, some 7 or 8 inches by 12 or 14 inches in dimensions. Decedent was about 35 years of age, and slightly hard of hearing. His business was that of a real estate agent, wherein he seems to have been engaged with the brother in question, and perhaps with another brother, at his home town of Garden City.
The only eyewitness who testified upon the trial was the brother of decedent, who, as stated, was driving the car at the time the decedent was killed. Upon the testimony of this brother the case, of necessity, must largely turn. He says that as he and decedent approached this crossing and when at a distance of some 400 feet therefrom he looked for an approaching train; that he knew a train was due from the south at about 1 o'clock, but that he did not know what time of day it was. Seeing no train, though from the point at which he looked a train coming as was the one which killed decedent could ordinarily have been seen when a quarter of a mile distant from the crossing, he continued driving. When he and decedent reached a point some 40 feet from the crossing, and while driving on an upgrade at the rate of 5 or 6 miles an hour, he again looked for a train. From this last point of observation a train could" ordinarily have been seen a quarter of a mile away, but on this day, on account of the prevailing weather conditions, the witness says he could only have seen a train when the same was some 200 feet distant from the crossing. Seeing no train from this final point of observation, hearing none, and hearing no crossing signals, he looked in the other direction toward Garden City, and continued driving until he reached the railroad track. There he suddenly saw the locomotive right upon him, and was instantly struck, and hurled with the car and decedent some 100 feet. From this impact decedent was fatally injured, dying in the afternoon of the same day, and the witness rendered unconscious for some few minutes. The automobile, this witness says, at the rate it was traveling when struck, could have been stopped in from 8 to 10 feet.
Whether the required statutory signals were given by sounding a whistle, or whether the train on this day and at this time was visible at a greater distance than that stated by decedent's brother, is contradictory upon the record before us; some of plaintiff's witnesses saying these signals were given, some that they were not given, and some that if they were given the witnesses did not hear them. Touching the visibility of the train, so far as such visibility was affected by existing weather conditions, some of plaintiff's witnesses say they actually saw it on this day and at this time, while it was from a quarter of a mile to a mile and a half away. This, however, by the way, for the rule requires us here to apply every inference in favor of plaintiff, and to consider in his favor the very highest points shown by the proof.
Since the case is a fact case, we will on this account reserve other facts for recital when we shall come to discuss what we deem to be the controlling law of the case.
L. M. Crouch, of Harrisonville, Parks & Son, of Clinton, and Campbell & Campbell, of Kirksville, for appellant.
John II. Lucas, of Kansas City, and D. C. Barnett, of Harrisonville, for respondent.
FARIS, J. (after stating the facts as above).
As forecast, this case presents but one question; that question is, Was the evidence sufficient to take the case to the jury? Plaintiff in effect contends, with absolute correctness, we think (if it were, or could here be, considered alone), that there was sufficient evidence of one element of negligence pleaded, that is, as to the failure of the defendant to sound the whistle or ring the bell upon the engine (section 3140, R. S. 1909), as to constitute prima facie negligence, to take the case to the jury. In this connection, plaintiff urges upon us the rule stated in the case of Peterson v. Railroad, 265 Mo. 462, 178 S. W. 182, which rule he excerpts bodily from the syllabus of the case. Taking the rule stated in the Peterson Case as his text, plaintiff insists that since contributory negligence is an affirmative defense, the moment a prima fade case bottomed upon defendant's negligence is made out, every such case must go to the jury, and therefore this case ought to have gone to the jury.
This view, we think, leaves out of consideration another controlling point by which the rule contended for is in a proper case always modified. That point is that, even if the plaintiff's evidence makes out a prima facie case, or, to be more exact, makes out proof of defendant's negligence, yet if in developing such a case the evidence adduced by plaintiff also proves plaintiff's own contributory negligence as a matter of law, then the case is not one for the jury, but is one for the court, and the court ought to sustain a demurrer to the evidence. Sissel v. Railroad, 214 Mo. 515, 113 S. W. 1104, 15 Ann. Cas. 429; Harris v. Railroad, 250 Mo. loc. cit. 577, 157 S. W. 564. In the Sissel Case, supra, Graves, J., upon a point presented in that case which was much similar, and wholly analogous upon principle, said at page 526 of 214 Mo., at page 1107 of 113 S. W. (15 Ann. Cas. 429), this:
In the instant case, there is a defensive plea of contributory negligence. If plaintiff may not recover when his own evidence, or evidence which he offers, shows contributory negligence as a matter of law, even when defendant has not pleaded such contributory negligence, then a fortiori he cannot recover in such situation when defendant has interposed this plea. Even the case of Peterson v. Railroad, supra, which seemingly is largely relied on by plaintiff, does not, when the facts in that case are examined, nor even when the language used is carefully read, bear out the rule contended for by plaintiff. For the learned writer of that opinion, in stating the rule which is urged upon us, was careful to restrict it to cases wherein the prima fade case had been made out, thus clearly negativing its application to a case wherein, though prima fade the negligence of defendant is shown, yet goes farther and destroys such prima facie case before he stops offering evidence, by proving his own contributory negligence as a matter of law. The rule we cite from the Sissel Case is too well-settled for either dispute or cavil.
Applying this rule to the facts shown in evidence in the instant case, we are of the opinion that the plaintiff's proof shows contributory negligence of decedent as a matter of law, and thus precludes plaintiff's recovery. Numerous witnesses offered by plaintiff testified to having seen the train which killed decedent when it was...
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