Wallace v. St. Louis-San Francisco Ry. Co
| Decision Date | 07 January 1924 |
| Docket Number | No. 3449.,3449. |
| Citation | 257 S.W. 507,216 Mo. App. 148 |
| Parties | WALLACE v. ST. LOUIS-SAN FRANCISCO RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.
Action by Ora Wallace against the St. Louis-San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.
W. F. Evans, of St. Louis, and Ward & Reeves, of Caruthersville, for appellant.
Shepard & Hawkins, of Caruthersville, for respondent.
The plaintiff is the widow of W. M. Wallace, deceased, who was killed at a railroad crossing in Caruthersville by one of defendant's trains, and recovered a judgment for $5,000. It is from that judgment defendant brings this appeal.
The only point of consequence relied upon is that the court erred in refusing to sustain a demurrer to the evidence at the close of the trial, and this because the appellant contends the evidence shows that the deceased was guilty of contributory negligence as a matter of law. This necessarily requires a review of the facts of the case which are most favorable to the plaintiff.
The plaintiff's husband was driving a Hudson automobile in a north or northeasterly direction along a road which adjoined and paralleled defendant's railroad line. The railroad tracks were to his right. As he proceeded north along this road he had an open view of defendant's railroad for about half a mile to the north. In the automobile with him, seated to his right, was a man companion by the name of Barnett, who is the principal witness for plaintiff in this case. On the back seat of the automobile were two women. The witness Barnett testified that they traveled north along this road, and that he and the deceased knew that the passenger train was due about that time of day, it being 4:30 in the afternoon, in the month of June; that when they came to a point in the road some 225 feet south of Tennessee street, which runs easterly and westerly, it became necessary to steer the car to the west along the road to avoid a mudhole, and that from that point, 225 feet from Tennessee street, a barn located on the north side of Tennessee street stood between the occupants of the automobile and defendant's track from the north, and that the barn obstructed the view to the north until the automobile reached a point near the intersection of the road upon which they were traveling and Tennessee street. The plat introduced in evidence, and admitted by both sides to be correct, shows that this barn was located 36.3 feet west of the railroad tracks, which establishes it as a physical fact that, when the automobile reached a point 36.3 feet from the railroad crossing on Tennessee street, a clear view to the north could be had by looking for practically half a mile; and the physical facts also disclose that as they entered Tennessee street on a curve or angle, having gone around the mudhole, and the barn being situated on the north side of Tennessee street, the clear view to the north would have been at a distance farther than 36.3 feet.
We are going to dispose of this case on the testimony of Barnett, who is plaintiff's sole witness of what took place in the automobile which was being driven by her deceased husband. We may state that the record shows that Wallace and one of the women were killed, and Barnett and the other woman escaped with their lives, and that Barnett was the only witness produced who was in the automobile. He admits that after the automobile came out from behind the barn he nor the deceased looked to the north or paid any attention to the railroad from the north until they had reached a point some 10 or 12 feet from the tracks, and that then they were so close, and the train being right on them, a collision could not be avoided. He also testified that the brakes on this automobile were not working well, and that the deceased knew that they were not in good order. The evidence also shows that the deceased lived in Caruthersville, and was familiar with this railroad crossing.
The view we take of this case is that, if a person running an automobile comes to a railroad crossing with which he is familiar, knows that a train is about due, drives along the road for some 200 feet where there are obstructions to the view, and then comes to a place some 36 to 50 feet of the track where there are no obstructions to the view, traveling at a speed of 10 or 12 miles an hour, fails to look within such 50 or 36 feet, and, drives on the tracks or so close to the tracks before discovering the train that he cannot stop, his conduct is declared by the Supreme Court in a number of cases and by every Court of Appeals in the state to be negligent in law, which forbids a recovery regardless of whether the defendant's servants rang the bell, blew the whistle, and exceeded speed ordinances.
A good deal of criticism appears in the brief of respondent concerning holdings of this court, and in fact all the courts, on railroad crossing cases. This court, of course must follow the last rulings of the Supreme Court, and we will dispose of this case by quoting a few excerpts from recent Supreme Court cases growing out of collisions at crossings between trains and automobiles.
In the case of Evans v. Illinois Central R. Co., 289 Mo. 493, 233 S. W. 397, it is held:
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