Vail v. Thompson

• Decision Date: 10 July 1950
• Docket Number: No. 41660,No. 1,41660,1
• Parties: VAIL v. THOMPSON
• Court: Missouri Supreme Court

Page 491

232 S.W.2d 491

360 Mo. 1009

VAIL v. THOMPSON.

No. 41660.

Supreme Court of Missouri, Division No. 1.

July 10, 1950.

Motion for Rehearing or to Transfer to Court en Banc

Overruled Sept. 11, 1950.

Richard H. Beeson, David P. Dabbs and Dean F. Arnold, Kansas City, for appellant.

E. E. Thompson, Eugene R. Brouse, and Sam Mandell, Kansas City, for respondent. Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel.

HYDE, Judge.

Action for damages for wrongful death of plaintiff's husband in Kansas. Plaintiff had verdict and judgment for $10,000.00. Defendant has appealed. The principal question is whether plaintiff made a jury case under the Kansas last clear chance rule. On this issue, we will not consider defendant's evidence as there is nothing in it to aid plaintiff.

Plaintiff's husband, William F. Vail, was killed when defendant's passenger train struck his truck on a street crossing in Neodesha, Kansas. The casualty occurred early in the afternoon on a clear day in February 1945. Defendant's main line track ran north and south, along the west side of the town, parallel to Twelfth Street which was on the west side of the track. The main line track was two and a half feet above Twelfth Street and 20 feet east of it. There were two switch tracks east of the main line track. The train was traveling south about 30 miles per hour. The track was downgrade to the south, about 2.75 feet per mile. Vail was driving his truck south on Twelfth Street at a lower rate of speed than the train and, when he reached North Carolina Street, he slowed down, turned east (left) and drove up the incline on to the track, going about 6 to 8 miles per hour. This incline on North Carolina from Twelfth Street to the track was covered with cinders which were soft and deeply rutted. The crossing was rough, rutty and full of chuck holes. It had rained that morning and there was water standing in the ruts and holes. Two witnesses, working on a building about 500 feet away (northwest) across Twelfth Street saw the truck turn and heard the train whistling. They could not see the train at that time because of a larger building north of them. When the train came into their view, it was between 400 and 500 feet from the crossing. At that time, the truck was on the crossing with its front wheels at or near the east rail.

These witnesses said the truck stopped, or stalled, on the track. They could see Vail moving around inside the cab. He was moving his arms around; he looked down and also looked to the north. 'The truck jiggled and moved back and forth a time or two. * * * The truck was sort of rocking * * * jerking.' One of these witnesses said he couldn't tell what Vail was doing but 'he was messing with something in there.' The other witness said he saw Vail turn to the left and move his arms around and that there was a jerking motion of the truck; 'part of the time he was looking down and once in a while he would look north.' The engine struck about the left door of the truck cab and threw it to the southwest, across Twelfth Street. The truck was a 1939 Chevrolet with left-hand drive.

The train consisted of an engine, tank and seven cars. Plaintiff had testimony of two retired railroad engineers estimating that such a train going 30 miles per hour, could be stopped in 250 to 275 feet. It was actually stopped with the engine 725 feet south of the crossing and the evidence was that the brakes were put on about 75 feet north of the crossing. However, the testimony of plaintiff's experts taken as a whole (considering their estimates on reaction time and reduction of speed in each 100 feet) would not amount to substantial evidence of a total stopping distance of less than 300 feet.

The essential elements of the Kansas last clear chance rule are stated as follows: '(1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence has ceased; (3) that defendant, seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part, had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care; and (5) as a result of such failure plaintiff was injured.' Goodman v. Kansas City, M. & S. R. Co., 137 Kan. 508, 21 P.2d 322, 324; Ross v. Chicago, R. I. & P. R. Co., 165 Kan. 279, 194 P.2d 491. There is no question about Vail's negligence in driving on the track with the train whistling and coming toward him in plain view. Therefore, the decisive questions here are: when did Vail's negligence cease? and what could defendant have done thereafter? The burden of proof on these issues is on the plaintiff. Bollinger v. St. Louis-San Francisco R. Co., 334 Mo. 720, 67 S.W.2d 985; Murphy v. Atchison, T. & S. F. R. Co., 353 Mo. 697, 183 S.W.2d 829; Murphy v. Atchison, T. & S. F. R. Co., 355 Mo. 643, 197 S.W.2d 632. We do not think that plaintiff has sustained this burden herein.

Under the Kansas law, the contributory negligence of an injured person ceases to be a complete defense only when such person is in helpless peril; 'that is in a condition of peril from which he cannot by the exercise of reasonable care extricate himself.' Bollinger v. St. Louis-San Francisco R. Co., supra [334 Mo. 720, 67 S.W.2d 989]; Caylor v. St. Louis-San Francisco R. Co., 332 Mo. 851, 59 S.W.2d 661; Dyerson v. Union Pacific R. Co., 74 Kan. 528, 87 P. 680, 7 L.R.A.,N.S., 132, 11 Ann.Cas. 207; Bazzell v. Atchison, T. & S. F. R. Co., 133 Kan. 483, 300 P. 1108. Until his position of peril is such that he cannot escape therefrom by his own efforts, his negligence (in not doing what he could to save himself) is considered to be a continuing concurring cause. Dyerson v. Union Pacific R. Co., supra; see also Buchhein v. Atchison, T. & S. F. R. Co., 147 Kan. 192, 75 P.2d 280; Trower v. Missouri-Kansas-Texas R. Co., 347 Mo. 900, 149 S.W.2d 792, Id., 353 Mo. 757, 184 S.W.2d 428. Thus the question under the Kansas law is: Did Vail's negligence cease to be effective (as a concurring cause) so as to create a sufficient margin of time thereafter and prior to the collision in which defendant had a fair opportunity, a last clear chance, to prevent the collision?

We think this case is ruled by Jamison v. Atchison, T. & S. F. R. Co., 122 Kan. 305, 252 P. 472, 474. In that case, the plaintiff drove an automobile west on to a steep muddy railroad crossing, which caused his rear wheels to spin so that he could make no forward progress. He saw the train coming south toward him about 400 feet away at 30 miles per hour. He then made another effort to get the car across the track but killed the engine and his car was struck. The Court said that plaintiff could have backed the car off or stepped out and that it was bound to hold that his negligence did not cease to operate for a sufficient time prior to the collision to shift the exclusive blame to defendant. The Court said: 'Even after plaintiff did discover the train 400 feet away, coming at 30 miles per hour, he still had 9 seconds to step from his car and get out of danger. He could...