Williams v. Thompson

• Decision Date: 21 December 1942
• Docket Number: No. 6414.,6414.
• Citation: 166 S.W.2d 785
• Parties: WILLIAMS v. THOMPSON.
• Court: Missouri Court of Appeals

166 S.W.2d 785

WILLIAMS v. THOMPSON.

No. 6414.

Springfield Court of Appeals. Missouri.

December 21, 1942.

Appeal from Circuit Court, Christian County; Warren L. White, Special Judge.

"Not to be published in State Reports."

Action by Sam Williams against Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, to recover damages for the death of plaintiff's wife. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Thomas J. Cole, of St. Louis, and E. A. Barbour, Jr., F. Hiram McLaughlin, and Arthur W. Allen, all of Springfield, for appellant.

Irving W. Schwab and Nat W. Benton, both of Springfield, for respondent.

FULBRIGHT, Judge.

This is an action for damages by Sam Williams for the death of his wife resulting from injuries sustained on February 18, 1940, in a railroad crossing accident. The trial was had in the circuit court of Christian County resulting in a verdict and judgment for plaintiff in the sum of $2,500. From this judgment defendant duly appealed.

The petition is in conventional form and alleges several grounds of negligence among which are: First, the failure of defendant's agents, servants and employees to give the statutory crossing signals required by Statute 4756, R.S.Mo.1929, Mo. R.S.A. § 5213; and second, that the crossing was dangerous because the view was obstructed, and the highway was slick because of snow that had gathered thereon and that defendant was negligent in not sounding the whistle of the engine so that the driver of the car in which plaintiff's wife was riding could be warned of the approaching train.

The answer is a general denial coupled with a plea of contributory negligence.

The accident out of which the cause of action grows occurred on the 18th day of February, 1940, at about five o'clock in the evening at the intersection of Walnut Street and defendant's tracks in the City of Springfield. Walnut Street is an ordinary paved city street, runs east and west and is crossed by two of defendant's railroad tracks in the general direction of north and south, angling slightly from southwest to northeast. Just west of the intersection and south of the street is a coal yard upon which were located coal sheds beginning about 135 or 140 feet west of the tracks and which extended west up the hill for some distance to the office of the coal company. These sheds were boarded up on the street side with corrugated iron to the height of about 12 feet, and were enclosed with a high wire fence. From the office to the west line of the coal yard were piles of wood and coal some 10 or 15 feet in height. From the coal yard office and for some distance west the street is practically level, but about opposite and to the north of the office a sharp down grade leading to the east sets in and continues to within approximately 30 feet of the crossing. From that point on to the crossing the street is comparatively level.

Plaintiff and his wife were riding in a Ford automobile as guests of Lawrence Logan and his wife and were returning to Springfield from Republic driving east on Walnut Street. It had been snowing for possibly an hour and the streets were covered with snow and ice and were slippery. Mr. Logan had stopped two or three times on the road from Republic to wipe the snow from the windshield but no difficulty was experienced in stopping the car and the brakes seemed to be working satisfactorily. He had been driving cautiously at the rate of about 15 to 18 miles per hour. They proceeded east on Walnut Street until they got to a point opposite the piles of coal and wood on the south side of the street near the intersection, and from there on their view of defendant's railroad tracks to the south was obstructed until they reached a point opposite the east end of the coal sheds about half way down the hill, where, for the first time, a view of the approaching train was possible. As the car approached the crossing it was traveling about 10 or 15 miles per hour, the train at about the same or perhaps a little faster speed. All occupants of the car saw the approaching train about the same time and the car immediately veered to the north side of the street, struck the curb and its course was deflected into the path of the train resulting in a collision in which plaintiff's wife received injuries from which she died about two weeks later.

The evidence in some particulars is sharply conflicting especially as to the ringing of the bell and the blowing of the whistle on the locomotive.

Defendant's assignments of error are in substance as follows: The court erred in refusing defendant's demurrers at the close of the plaintiff's evidence, and at the close of all the evidence in the case; the court erred in giving plaintiff's Instruction No. One because it only submits to the jury the failure to ring the bell; and the court erred in giving plaintiff's Instruction No. Two for the reason that it places on the defendant a duty to exercise a greater degree of care than that required either by the common law or by the statute.

In view of all the evidence it appears that plaintiff produced substantial evidence that no warning was given by bell or by whistle on the locomotive and that plaintiff's wife received injuries in the accident from which she died a few days later. In support of his first assignment defendant proceeds on the theory, granting this to be true, that the failure to give such signals was not the proximate cause of the accident, but that the proximate cause was the slippery condition of the highway. It is true, "the mere concurrence of negligence and injury does not make the defendant liable. There must be a direct connection between the negligent act and the injury, and the negligence must be the proximate cause of the injury." Warner v. St. Louis & M.R. R. Co., 178 Mo. 125, 77 S.W. 67, 69; Coble v. St Louis-San Francisco Ry. Co., Mo.Sup., 38 S.W.2d 1031.

There was sufficient evidence to authorize the jury to find that defendant negligently failed to ring the bell or blow the whistle, but such finding alone would not be sufficient to entitle plaintiff to recover unless it further appeared, either by direct proof or reasonable inference that such failure was the proximate cause of the collision in which plaintiff's wife received the injuries that resulted in her death. "The mere proof of negligence is not sufficient to support a verdict. It is one step, but there is another, to wit, the causal connection between the negligence and the injury." Deschner v. St. Louis & M. R. R. Co., 200 Mo. 310, loc. cit. 333, 98 S.W. 737, loc. cit. 743; Kane v. Missouri P. Ry. Co., 251 Mo. 13, 157 S.W. 644.

Further, it may be said that if the injury could not have been reasonably anticipated as the probable result of defendant's act or acts of negligence in failing to ring the bell or sound the whistle save for the intervention of an independent or efficient cause, the intervention of which could not have been anticipated by defendant, recovery is not warranted. Daneschocky v. Sieben, 195 Mo.App. 470, 193 S.W. 966; De Moss v. Kansas City Rys. Co., 296 Mo. 526, 246 S.W. 566.

Keeping in mind the above rules, we shall review briefly the applicable evidence. It is obvious that defendant, as well as plaintiff, was familiar with the snow and ice on the street and the slippery condition thereof. Defendant well knew the hazards surrounding the crossing in question, and that the snow and icy condition increased the danger. It is evident that the snow and ice on the street played an important part in producing the accident. It is also true that plaintiff saw the approaching train in time to have stopped before going on the track had the pavement been free of ice and snow. But there is no merit in defendant's contention that the presence of snow and ice on the pavement was a new intervening and efficient cause which broke all causal connection between its negligence in having failed to ring the bell or blow the whistle, and the accident.

Plaintiff and the other occupants of the automobile approached the crossing oblivious to the on-coming train which was hidden from their view by the obstructions heretofore mentioned, and were about half way down the hill. The evidence indicates that as soon as plaintiff saw the train (all occupants of the car saw it about the same time) the driver immediately tried to stop the automobile. Plaintiff testified: "I could not see beyond that or through it (the obstructions). You could not see a train that might be coming up to the right, * * * until it came out behind that shed. * * * I did see the train there after I got down closer; after we got down to the end of that shed or fence along there. * * * I couldn't have seen it before I did. * * * When I saw that train my wife commenced to scream. She gave the alarm. That is about the time we all saw it. Mr. Logan undertook to turn the car to his left. That would be toward the north side of the street. * * * I do not know what happened after he turned to the left and toward the north side of the street. He swung around a little and then the back end went on around. After the car hit the curbing on the north side of the street the back end swung on around. * * *."

Mrs. White testified: "As I remember, when we were going west this car was coming down the hill in the center of the street and angled off to the left toward the curbing as if it was trying to stop. * * * The wheels on it must have skidded. Either the wheels on his car skidded or he turned in that direction as he saw the train. It was one of two things. * * *."

Omer White testified: "When I first saw the car it was around about the office of the coal company. Almost immediately when I saw the car it cut across the street to the north and it struck the curbing and the curbing threw the car back east in front of the train. * * *."

We now turn to defendant's witnesses. Paul Eslinger, speaking of the automobile in which plaintiff...