Tannehill v. Kansas City, Clinton & Springfield Railway Company

• Decision Date: 05 July 1919
• Citation: 213 S.W. 818,279 Mo. 158
• Parties: JAMES E. TANNEHILL, Curator of Estate of RUTH E. TANNEHILL et al., Appellant, v. KANSAS CITY, CLINTON & SPRINGFIELD RAILWAY COMPANY
• Court: Missouri Supreme Court

213 S.W. 818

279 Mo. 158

JAMES E. TANNEHILL, Curator of Estate of RUTH E. TANNEHILL et al., Appellant, v. KANSAS CITY, CLINTON & SPRINGFIELD RAILWAY COMPANY

Supreme Court of Missouri, Second Division

July 5, 1919

Appeal from Cass Circuit Court. -- Hon. Andrew A. Whitsett, Judge.

Affirmed.

L. M Crouch, Parks & Son and Campbell & Campbell for appellant.

(1) "Contributory negligence, as a rule, is a matter of defense, which must be pleaded and proved by the defendant. When plaintiff makes out a prima-facie case, entitling him to go to the jury, the burden then shifts to the defendant, if he relies upon plaintiff's negligence, to disprove and overcome that case, to the satisfaction of the jury. And the prima-facie case for plaintiff having been made out, the case can never be peremptorily taken from the jury; for, however strong the countervailing testimony of plaintiff's contributory negligence may be, its credibility and weight are for the jury." Peterson v. C. & A. Ry. Co., 265 Mo. 462; Farrar v. Met. St. Ry. Co., 249 Mo 210; Taylor v. Met. St. Ry., 256 Mo. 191, l. c. 213 215; Krehmeyer v. Transit Co., 220 Mo. 639; DeRousse v. West, 200 S.W. 783; Kennayde v. Railroad, 45 Mo. 255; Underwood v. Ry. Co., 190 Mo.App. 407; Thornsberry v. Ry. Co., 178 S.W. 197, l. c. 200, par. 5; Hubbard v. Lusk, 181 S.W. 1028; Goebel v. United Rys. Co., 181 S.W. 1051; Montague v. Mo. & K. I. Ry. Co., 193 S.W. 935; Walker v. Wabash Ry. Co., 193 Mo.App. 249. (2) "On demurrer to the evidence, plaintiff is entitled to every favorable or reasonable inference arising therefrom." Lamport v. Fire & Life Assn. Co., 197 S.W. 95; Hanser v. Bieber, 197 S.W. 68; Jetter v. St. Joseph Terminal Ry. Co., 193 S.W. 956; Hendrix v. United Rys. Co., 193 S.W. 812; Montague v. Mo. & K. I. Ry. Co., 193 S.W. 935; Campbell v. St. L. & Sub. Ry. Co., 175 Mo. 161. (3) the presumption of due care on the part of H. Earl Tannehill accompained him, as he approached the railway crossing, regardless of whether or not there was any evidence to show that he looked and listened for an approaching train. McQuitty v. Kansas City Southern Ry. Co., 194 S.W. 888; Underwood v. St. L. I. M. & S. Ry. Co., 190 Mo.App. 415; Hubbard v. Lusk, 181 S.W. 1031. (4) The demurrer should have been overruled and the case submitted to the jury, under the evidence in the case and under the pleadings under the humanitarian or last-chance doctrine. Ellis v. Metr. St. Ry. Co., 234 Mo. 657; Flynn v. Metr. St. Ry. Co., 166 Mo.App. 187; Bruening v. St. Ry. Co., 181 Mo.App. 264; Norders v. Metr. St. Ry. Co., 168 Mo.App. 172; Flack v. Railroad, 162 Mo.App. 650; Cole v. Metr. St. Ry. Co., 133 Mo.App. 440; McNamara v. St. Ry. Co., 133 Mo.App. 645; Delmar v. Metr. St. Ry. Co., 136 Mo.App. 443; Sheldon v. St. Ry. Co., 167 Mo.App. 404; Johnson v. Traction Co., 176 Mo.App. 174; Crutcher v. Railroad, 241 Mo. 137; Taylor v. Railroad, 256 Mo. 191; Strauss v. Railroad, 166 Mo.App. 153; White v. Railroad, 202 Mo. 539; King v. Wabash Ry. Co., 211 Mo. 1; Shipley v. Metr. Str. Ry. Co., 144 Mo.App. 7; Lynch v. C. & A. Ry. Co, 208 Mo. 1; Reyburn v. Railroad, 187 Mo. 575; Rine v. Railroad, 100 Mo. 234; Krehmeyer v. Transit Co., 220 Mo. 639; Farrar v. Metr. Str. Ry. Co., 249 Mo. 220. (5) The negligence, if any, of Thos. P. Tannehill, could not be imputed to H. Earl Tannehill, for the evidence shows that H. Earl Tannehill was not driving the automobile, nor was he in any way exercising any control over the car or in any way directing Thos. P. Tannehill in its control and management, but on the contrary Thos. P. Tannehill had the exclusive control over its operation and management. Johnson v. Traction Co., 176 Mo.App. 185; Moon v. St. Louis Transit Co., 237 Mo. 434; Stotler v. C. & A. Ry. Co., 200 Mo. 146-148; Farrar v. Metr. St. Ry. Co., 249 Mo. 219; Sluder v. Transit Co., 189 Mo. 107; Ebert v. Metr. St. Ry. Co., 174 Mo.App. 45; Connor v. Railroad, 149 Mo.App. 675; Diskon v. Railroad, 104 Mo. 491; Baxter v. St. Louis Transit Co., 103 Mo.App. 598; Keitel v. Railroad, 28 Mo.App. 657.

John H. Lucas, Wm. C. Lucas and D. C. Barnett for respondent.

(1) There was no evidence on which to base a submission of either of the two alleged acts of negligence, viz.: Failure to sound the whistle or ring the bell. There was an entire failure of proof of either allegation. The rule is well established "when the evidence is of such a character that the trial judge would have a plain duty to perform in setting aside the verdict as unsupported by the evidence, it is his duty and prerogative to interfere before submission to the jury and direct a verdict for the defendant." Jackson v. Hardin, 83 Mo. 175; Hite v. Metroplitan St. Railway Co., 130 Mo. 132; Warner v. St. L. & M. R. Railroad, 178 Mo. 132; Waggoner v. Railroad, 152 Mo.App. 179; Weltmer v. Bishop, 171 Mo. 116; Sexton v. Met. St. Ry. Co., 245 Mo. 272; Burge v. Wabash Railroad, 244 Mo. 94. (2) The deceased was guilty of such contributory negligence as barred a recovery. McManamee v. Mo. Pac. Ry. Co., 135 Mo. 449; Huggart v. Mo. Pac. Ry. Co., 134 Mo. 679; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 372. (3) There is no room for the application of the humanitarian rule, and the claim therefor is without substantive evidence to support the contention. Keele v. A., T. & S. F. Railroad, 258 Mo. 77; McGee v. Wabash Railroad, 214 Mo. 541; Rollison v. Wabash Railroad, 252 Mo. 537; Phippin v. Mo. Pac. Ry. Co., 196 Mo. 343. (4) The final contention is that as the deceased was not driving the car he was absolved from the exercise of ordinary care, a contention unsustained in reason and unsupported by precedent. It was the duty of the deceased to look and listen for the approaching train, and this duty could not be shifted to his business associate. Burton v. Pryor, 198 S.W. 1120; Erie R. R. Co. v. Hurlburt, 221 F. 907; Brommer v. Penn. Railroad, 29 L.R.A. 924; Coby v. Q., O. & K. C. Railroad 174 Mo.App. 648.

OPINION

FARIS, J.

Appellant as the curator of certain minor children of one H. Earl Tennehill, 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 employees 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, Missouri, 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 one 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 forty-five 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 seven or eight inches by twelve or fourteen inches in dimensions. Decedent was about thirty-five 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 eye-witness 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 one 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 forty feet from the crossing and while driving on an up-grade at the rate of five or six 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...