Ward v. Missouri Pac. Ry. Co.

• Decision Date: 25 November 1925
• Docket Number: No. 24681.,24681.
• Citation: 277 S.W. 908
• Parties: WARD v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

277 S.W. 908

WARD v. MISSOURI PAC. RY. CO.

No. 24681.

Supreme Court of Missouri, in Banc.

November 25, 1925.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Josephine I. Ward against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James F. Green, H. H. Larimore, A. E. L. Gardner, and M. U. Hayden, all of St. Louis, for appellant.

Claude M. Crooks and Charles E. Morrow, both of St. Louis, for respondent.

WHITE, J.

The plaintiff, in the circuit court of St. Louis county, sued for damages on account of the death of her husband, Albert Hesse, who was killed through the alleged negligence of the defendant in operating its train. She recovered judgment June 7, 1922, for $8,000, and the defendant appealed.

Albert Hesse was killed July 7, 1921, while riding in a Ford automobile as the guest of one Otto C. Carpenter, when the latter drove across the tracks of defendant at a place called Lake Hill in St. Louis county. Lake Hill, 17½ miles west of St. Louis, on the south side of the defendant's railway tracks, was an amusement resort, consisting of dancing and dining pavilions, swimming pool, lake for boating, stands, and concessions. Defendant maintained a station there where passengers sometimes were received and discharged.

A public highway, called Daugherty Ferry road, runs parallel with the railroad tracks a short distance north of Lake Hill. A road runs south from Daugherty Ferry road and crosses the defendant's tracks at Lake Hill. There is some dispute as to the character of this road, but the defendant displayed a sign over it, "Railroad Crossing," and appellant's counsel in his brief admits that it was a public crossing of a highway over the railroad tracks. Carpenter, with Hesse, in his Ford car, was driving from the north on this road, and, in attempting to cross the defendant's railroad track at Lake Hill, his car was struck by defendant's west-bound passenger train, and both the men were killed.

The railroad track at that point runs on an embankment about 15 feet above the surrounding country. The road running south through Daugherty Ferry road approached the tracks on an incline until within about 5 feet of the rails where it was on a level with the track. East of Lake Hill the track of the defendant runs through a tunnel which ends on the west in a deep cut. According to the measurements of the defendant, the distance of this cut from the crossing was 985 feet. After leaving the cut the track makes a sharp curve to the south, going west. There was much evidence showing that on the road along the right-hand side of defendant's track, next the crossing, were shrubs, trees, and vegetation of various kinds, such as to prevent sight of the railroad tracks and an approaching train, by any one passing south on the road until within a very few feet of the track. The engineer in charge of the train testified that he could not see the crossing, and didn't see the automobile until he was within a hundred feet of the crossing. There was testimony to the effect that one would have to be within 5 or 6 feet of the rails before he could look up the track and see the approaching train. Photographs were introduced by the defendant to show the situation there, but it is not clear that any of the photographs were taken from the exact spot where the occupants of the automobile could look up the track. On Sundays and holidays a great many people resorted to the park, and, on the day in which the accident occurred, there were from 100 to 200 people picnicking there. A great many automobiles were crossing the railroad track going to and from the park. It was said that the north and south road was the only access to the park by automobile. There were 17 stations between Lake Park and St. Louis, a distance of 17½ miles, and trains passed very frequently, sometimes every few minutes. Several witnesses, who were near when the automobile was struck, testified to seeing the collision, and heard no warning sound from the train as it approached. One witness for plaintiff said that the Ford car approached within a very few feet of the track, hesitated a second, and then went on; that by the time it got on the track it was struck and knocked to pieces. The train was stopped about a quarter of a mile further west, and both men were then on the pilot, dead.

Evidence showed the train was going at from 40 to 50 miles an hour; the engineer testified that it was running at the rate of 47 miles an hour. Two or three witnesses for "defendant testified that the whistle was blown when the train came out of the cut. Several witnesses for plaintiff watched it from the time it came out of the cut until it struck the automobile, and they testified that they heard no whistle sounded nor bell rung.

According to witnesses for plaintiff, an automobile, in crossing, would have to be so close to the track that the front wheels would be almost on the rails, before the driver could view the track any considerable distance to the east. The engineer testified that he knew Lake Hill was a resort and he had seen crowds of people there, especially on Sundays and holidays. He knew there was a swimming pool there, and that people from the city daily visited the park; that for years he had given the signal whistles for that crossing. The Daugherty Ferry road at that point was 50 feet north of the rails where the north and south road entered it, from the crossing.

Albert Hesse was 28 years of age at the time of his death. He left a widow and 4 children, the eldest 11 and the youngest 3 years of age. At the time of the trial his widow had married Mr. Ward, but was not living with him.

The case was submitted to the jury on two allegations of negligence: The excessive speed of the train; and failure to sound a warning of its approach.

I. Appellant claims that no negligence was shown either in failure to sound a warning or in excessive speed. The plaintiff did not rely upon a failure to give the statutory warning, or upon any legal limit to the speed. Whether, under circumstances like this, the speed of the train is negligent does not depend altogether upon its rate, but to some extent upon the circumstances. A rate of speed may be negligent at common law while within the statutory speed limit. Montague v. Railroad, 305 Mo. 269, 264 S. W. loc. cit. 816; Harrington v. Dunham, 273 Mo. loc. cit. 431, 202 S. W. 1066. Here the train was running in a thickly populated community with stations not more than a mile apart. It came out of a deep cut; had to round a curve in approaching the crossing where people were almost continually passing. The crossing was obscured from view until the train was almost upon it, and it was impossible to slacken the speed before reaching it. It was a question for the jury whether it was a negligent speed to run at a rate such as trains acquired in the open country.

That it was the duty of defendant's employees in charge of the train to sound an adequate warning of its approach there is no question, and it was for the jury to say whether such warning was sounded in this case. Several witnesses, who were present, saw the accident, and watched the train approaching, did not hear any whistle or bell sounded, while witnesses for the defendant, who were on the train, testified that the whistle was sounded and the bell was rung. There is evidence that another railroad track was near there, and a whistle at the distance of the cut, around a curve, might easily be mistaken for one on another track, or the whistle may have been sounded before the train cleared the cut. It was a question for the jury whether the warning was sufficient to apprise any one approaching the crossing that a train was coming.

Appellant further contends that Hesse was negligent, as a matter of law, so as to bar recovery. Some witnesses for plaintiff were where they could look up the track as far as the cut, while others testified that it was impossible for one, crossing from the north, to see up the track until within 5 or 6 feet of the rails, which would put the front wheels almost on the rail before the driver could see an approaching train. According to the engineer, the train was running 47 miles an hour, about 70 feet per second. He struck the automobile within 1½ seconds after he saw it. The Ford could hardly have traveled its length in that time. The hesitation of Carpenter, before driving on the track, when his car was within 2 or 3 feet of it, was probably so that he could look up the track. Then, according to the engineer, he might have been unable to see the train, or he might have seen it and might have become confused so that for a second he was incapable of rational action. The evidence fails to show that he either saw the danger, or negligently failed to see it, or recklessly drove in front of the engine which he knew, or should have known, was dangerously near. Besides it is not contended that his negligence, if it contributed to the injury, was imputable to Hesse, or relieved defendant as to liability.

We think the demurrer to the evidence was properly overruled and the case properly submitted to the jury. Before finding for the" plaintiff the jury were required to find that the defendant was guilty of both acts of negligence, excessive speed and failure to sound a warning as causing the death.

II. For several reasons appellant assigns error to the giving of instruction No. 2, on behalf of plaintiff.

First. It is said that the instruction is erroneous because it is too long. It covers 3½ printed pages of the record. An instruction otherwise unobjectionable will not be held erroneous merely because of its length. Wolfe v. Payne, 294 Mo. 170, 241 S. W. loc. cit. 919; State ex rel. Greer v. Cox et al. (No. 25324) 274 S. W. 373, decided at this term of this court.

Second. Appellant objects to this portion of the instruction:

"And, if the jury further find and...