Vandeventer v. Chicago & A. R. Co.

• Decision Date: 01 April 1915
• Docket Number: No. 17008.,17008.
• Citation: 177 S.W. 834
• Parties: VANDEVENTER v. CHICAGO & A. R. CO. et al.
• Court: Missouri Supreme Court

177 S.W. 834

VANDEVENTER v. CHICAGO & A. R. CO. et al.

No. 17008.

Supreme Court of Missouri, Division No. 1.

April 1, 1915.

Rehearing Denied April 12, 1915.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Lucy B. Vandeventer against the Chicago & Alton Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed.

The following are the photographs referred to in the opinion:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Scarritt, Scarritt, Jones & Miller, of Kansas City, for appellants. Kennen & Kennen, of Laddonia, and Fauntleroy, Cullen & Hay, of St. Louis, for respondent.

GRAVES, J.

This action was instituted by plaintiff in the circuit court of Audrain county, Mo., on the 1st day of May, 1911, under section 5425, R. S. 1909, to recover for the death of her husband, Dr. E. D. Vandeventer who was struck and killed at Laddonia, Audrain county, Mo., on July 4, 1910, at 11:45 p. m., by the east-bound fast passenger train of the Chicago & Alton Railroad Company, running between Kansas City and Chicago. Plaintiff seeks to hold defendants liable on the theory that the Chicago & Alton Railroad Company was operating the train which killed deceased, that the Louisiana & Missouri River Railroad Company was its lessor, and Al Steddings was the engineer in charge of said train, at time and place of accident.

It is charged in petition that defendants were guilty of negligence in running said train through Laddonia at the time of said accident at the rate of 60 to 80 miles per hour, in violation of the speed ordinance of 8 miles per hour of said town; that said defendants did not within 80 rods, or within any other distance of said crossing, ring the bell or blow the whistle on said train of cars, and keep the same ringing and blowing until said engine had passed said crossing, but negligently, carelessly, and unlawfully failed and refused to give any signals at all of the approach of said train at said crossing, and negligently ran said train against said plaintiff's husband; that after the employés of defendants saw and knew, or by the exercise of due diligence might have seen and known, that plaintiff's husband was in a perilous position, and unaware thereof, and unable to escape from the impending danger, said defendants and their employés failed to sound the usual and ordinary signals of danger in time to avert the injury, or at any other time, and negligently failed to stop or slacken the speed of said train in time to avert a collision, when, as a matter of fact, said train might, by the exercise of due care, have been stopped, or the speed thereof slackened in time to avert such injury; that, if said signals had been given, as they should have been, and had defendants exercised due care, said collision and the death of plaintiff's husband would have thus been averted.

Defendant Steddings answered with a general denial and a plea of contributory negligence upon the part of deceased. The answer of Louisiana & Missouri River Railroad Company is a general denial, with plea of contributory negligence of deceased, and contains the averment that section 3078, R. S. 1900, under which said last-named company was sought to be held as lessor, was unconstitutional and void. The separate amended answer of the Chicago & Alton Railroad Company was a general denial, with a plea of contributory negligence upon the part of deceased, and it contained an averment to the effect that the speed ordinance of Laddonia pleaded in petition was unreasonable, unconstitutional, and void. Plaintiff's reply is a general denial.

The undisputed evidence discloses that the train which killed deceased was running at rate of speed in excess of 8 miles per hour, at the time and place of accident, and hence was violating the 8-mile per hour speed ordinance of Laddonia. With the record thus pruned, we are confronted in its analysis with the following propositions:

(1) Is said ordinance of Laddonia unreasonable and unconstitutional as being an attempt to interfere with and regulate interstate commerce, contrary to provisims of section 8 of article 1 of the Constitution of the United States, vesting in Congress the sole power to regulate commerce among the several states, and is it violative of the fourteenth amendment to the Constitution of the United States, and section 30 of article 2 of the Constitution of Missouri, guaranteeing that no person shall be deprived of his property without due process of law?

(2) For the purposes of the case, conceding said ordinance to be valid, was deceased guilty of contributory negligence at time and place of accident as a matter of law?

Laddonia is a city or town on the Chicago & Alton road about 20 miles west of Mexico, Mo., and located in Audrain county, of said state. It contained, according to census, about 651 inhabitants. The above railroad enters the western part of said city, and passes through same in a northeasterly direction. The depot of said company at Laddonia is located on the north side of the main track. Pine street, of said city, runs practically north and south, and crosses the tracks of said railroad company about 310 feet west of the board walk south of said depot, upon which deceased was killed by a fast interstate passenger train on the night of July 4, 1910, at about 11:45 p. m. Said train was traveling from Kansas City, Mo., to Chicago, Ill., on evening of accident, and did not stop at Laddonia. It was known as the "Red Hummer," and usually passed through said city traveling in excess of 30 miles per hour. On the evening of accident said train was composed of locomotive, tender, mail car, combination baggage car, chair car, and sleeper. There were about seven cars in the train. About two-thirds of the town of Laddonia is located south of the Chicago & Alton tracks, and practically all the business is done on the south side. The school building, printing office, and blacksmith shop were located on the north side of said railroad tracks. The school building and blacksmith shop were kept open after night, and were open at time of accident. The Farmers' Bank was located about 166 feet south of the depot, and there was a board walk from 6 to 8 feet in width extending north from said bank to the depot. The evidence tends to show that this walk had been extensively used by pedestrians going to the depot, and also by pupils attending the school, and by the inhabitants generally who desired to pass over the railroad north in that vicinity. In other words, the evidence tends to show that the plank walk upon which deceased was struck and killed had prior thereto become a public thoroughfare for pedestrians.

At the time of said accident, the Chicago & Alton road had already installed and in operation an electric signal bell or the north side of track, between 10 and 11 feet east of Pine street, and about 282.8 feet west of the board walk where deceased was killed. It was 491 feet from said board walk to the cattle guards west of Pine street, and 1,472 feet from said walk to west whistling post. The distance from said board walk to the western limits of said city was 1,571 feet. Exhibits G and H were photographs introdued in evidence, and are made a part of this opinion, in order that they may be printed therewith as explanatory of the surroundings at and near said depot where the accident occurred. The distance from said board walk west to east edge of the warehouse on south side is 125 feet. The clear space between the north edge of said warehouse and the south rail of switch track north of coalhouse is 22.2 feet. The coalhouse is south and 34.2 feet from center of main line track. The distance from center of main line track to center of switch track south of same is 13.5 feet. The clear space between the coalhouse and south rail of switch track is 18.4 feet. The distance from the center of said board walk to the coalhouse west is about 18 feet. The distance from center of main track south to warehouse is 40.6 feet at east end, and 41.5 at the west end. The distance between the north rail of the switch track and the south rail of the main track at the board walk is 8.8 feet. The distance from board walk west to east end of stock cars on switch track was about three car lengths or from 108 to 114 feet. The other stock cars on switch were still further west. From where board walk crosses the main line track south of depot said main line track is straight for several miles.

On the night of accident deceased started north from the Farmers' Bank, and passed along said board walk until he was struck by the east-bound passenger train as he was stepping from the main line track to the depot platform. After he had passed north of the coalhouse and warehouse there was nothing to obstruct his view looking west, except the box cars standing on switch track 108 to 114 feet west of the board walk. As soon as deceased passed over the north rail of switch track he had an unobstructed view of the brilliant electric headlight of the passenger train locomotive, traveling east on the main line track, had he looked in that direction, before stepping upon said track in front of the rapidly moving train. He not only had before him 8.8 feet of space between the north rail of switch track and south rail of main track before entering upon the latter, but, with the train running on the main track, it was in plain view, had he looked, as soon as he passed over the north rail of switch track, regardless of the stock cars located 108 to 114 feet west of said board walk. We do not understand that the above conclusion is controverted, for upon pages 3 and 4 of respondent's brief it is said:

"After one passes the coalhouse he could get a plain view of the track west unless there were cars standing on the side track, and if cars were on the side track they would cut off the view...