Wolverton v. Kurn

• Citation: 149 S.W.2d 62
• Decision Date: 11 February 1941
• Docket Number: No. 6221.,6221.
• Parties: WOLVERTON et al. v. KURN et al.
• Court: Missouri Court of Appeals

149 S.W.2d 62

WOLVERTON et al. v. KURN et al.

No. 6221.

Springfield Court of Appeals. Missouri.

February 11, 1941.

Rehearing Denied April 3, 1941.

Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.

"Not to be published in State Reports".

Action by Bethel Lee Wolverton, a minor, by R. L. Wolverton, her father and natural guardian, against J. M. Kurn and John G. Lonsdale, trustees of the St. Louis-San Francisco Railway Company, for personal injuries sustained in a railroad crossing accident. From a judgment for plaintiff, defendants appeal.

Judgment reversed and remanded.

Ward & Reeves, of Caruthersville, and E. G. Nahler, of St. Louis, for appellants.

L. E. Tedrick and Phillips & Phillips, all of Poplar Bluff, for respondent.

SMITH, Judge.

This is a suit for personal injuries sustained in a railroad crossing accident and was instituted in the Circuit Court of Butler County, on August 29, 1939. The case was tried before a jury in said Court on January 17 and 18, 1940, resulting in a verdict in favor of the plaintiff for the sum of $3,000. After an unsuccessful motion for new trial all proper steps were taken to perfect an appeal to this Court.

The petition alleges that the plaintiff was 13 years of age and the suit is brought through her father and natural guardian, R. L. Wolverton, with whom she resides; that the defendants, J. M. Kurn and John G. Lonsdale, are trustees in charge of the property and bankrupt estate of the St. Louis-San Francisco Railway Company, having been appointed as such by the United States District Court within and for the Eastern Judicial District of Missouri on September 26, 1933. It is further charged that on July 15, 1939, the plaintiff was riding in a wagon being driven by her father in a northern direction, which said wagon was being pulled by a gentle team of mules, and when said wagon and team were approaching what is known as "Webb Crossing" about one mile north of Naylor, in Ripley County, Missouri, a northbound train being operated by the employees of the defendants negligently and carelessly and unnecessarily sounded the whistle on the train, as a result of which the team became frightened and ran upon the crossing immediately in front of the defendants' train. The specific charges of negligence in the petition are as follows:

"That after the engineer in charge of said train had sounded the whistle on said engine, as aforesaid, and that as a result thereof, said team became frightened; that said engineer saw and knew of the fright of said team and that said team was trying to run away and in so doing would reach and be on said crossing aforesaid, immediately in front of said train, and that said train would strike said team, wagon and the persons therein, or could have known of said facts by the exercise of ordinary care, in time thereafter to have ceased blowing said whistle, and to have applied the brakes on said train in time to have stopped or slowed the same down and to thus and thereby have permitted said team and wagon to have passed over said crossing aforesaid in safety, but that said engineer negligently failed to do so, but to the contrary thereof, after he saw or could have seen the fright of said team as aforesaid and the peril to those in said wagon as aforesaid, said engineer negligently and carelessly continued to so sound said whistle as aforesaid, and negligently and carelessly failed and neglected to apply the brakes on said train in order to slow down or stop the same for the purpose aforesaid, or to take any other steps to prevent said train striking said wagon and this plaintiff on said crossing aforesaid, when he could easily and readily have done so and thereby avoided said collision with the means at hand and without injury to said train or the passengers or property thereon, but that he negligently then and there failed and neglected so to do."

It is further alleged in the petition that plaintiff was thrown from the wagon by reason of said collision and she suffered a fractured left thigh bone, as well as other serious injuries.

The answer of defendants was a general denial and also a special plea that the injuries sustained by the plaintiff were brought about by the carelessness and negligence of the father of the plaintiff who was driving the wagon and team of mules, in that although said father knew that the train was approaching he continued to drive said team in close proximity to the railroad tracks when he knew or should have known that said team was likely to become frightened at the approaching train, and that he negligently permitted the team to become unmanageable and out of control, and by reason of which facts they ran in front of the train on to the crossing.

The evidence shows that on July 15, 1939, R. L. Wolverton, his wife and four children, including the plaintiff, had been to Naylor, where they had been to do some trading and buy some groceries. They lived about 6 miles north of Naylor and were en route home traveling along a country dirt and sand road, which was a public highway. The accident took place about 10:35 in the forenoon on a clear, warm day. The railroad runs in a general northeast and southwest direction, and the train was running in a northeasterly direction. The country road immediately adjacent to the crossing runs parallel with the railroad in a northeast direction, and on the south side thereof, until the road turns north and crosses the railroad. At the point where this road turns to cross the railroad, there is a private road extending northeast on the southern side of the railroad. The public road running parallel with the railroad is about 50 feet from the tracks.

R. L. Wolverton, the father of the plaintiff, was driving the team of mules and was seated in a chair on the right-hand side of the front end of the wagon bed, and his wife was in a chair on the left side of the front end of the wagon. The four children were riding behind them on a board which had been laid across the wagon bed. The plaintiff was seated immediately behind her father.

The dirt road, after turning to cross the railroad, runs due north up to the tracks and then from the crossing it turns northeast and runs parallel with the tracks. There is a turn in the dirt road about 200 feet southwest of the crossing and the dirt road after the turn runs parallel with the railroad until it turns to cross the track.

On the day in question when this wagon with its occupants was about 300 feet south of the track, the father and mother of the plaintiff heard a train whistling, which they thought to be up about Naylor, but at that time they could not see the train, and did not know just where it was, because on account of the vegetation and undergrowth they could not, at that point, see the railroad. At this point, they stopped the team in front of Webb's house. After they stopped about five minutes they proceeded ahead. They traveled north on this dirt road until they came to the railroad right of way where the road turns northeast parallel with the railroad, and when they had gotten to a point on this parallel road about 125 feet from the road that turns off and leads across the tracks, they heard the train whistle again. The father, the mother and the plaintiff all looked back and saw the train coming. At that time they testified according to a plat made by an engineer that the train was 503 feet southwest of the crossing and the wagon and team were 125 feet southwest of the crossing. The team became frightened and the team commenced running. The father of the plaintiff, who was the driver of the team, had his foot braced against the front end-gate of the wagon pulling back on the lines. The mules did not have their heads down in a dead run, but they were frightened and were trying to run away, but the father was able to keep them held back so that they were not traveling over 10 miles an hour. The occupants of the wagon say that when they looked back and saw the train coming, they could see the engineer on the train and apparently he was looking towards them. Both the train and the wagon were traveling the same direction. At that time the team was headed northeast up the dirt road parallel with the tracks. When the team got on down this road about 125 feet, they turned sharply to the left, which caused them to proceed towards the tracks. When the team turned suddenly to the left the driver of the team, being the father of plaintiff, was thrown out of the wagon on the right-hand side. After the turn was made and the team proceeded up towards the tracks the mother of the plaintiff fell out of the wagon on the left-hand side. This left the four children in the wagon, and the team ran upon the railroad but did not go over the crossing itself. They went over the tracks southwest of the crossing. The mules got across the tracks, but the train caught the wagon on the left side, striking the left front wheel. The wagon was torn from the mules and pushed ahead of the train some distance down the tracks and plaintiff was thrown out of the wagon several feet down the tracks. As a result of this collision, she suffered a broken leg and was confined to the hospital for about 51 days. When the train came to a stop the engine was 181 feet northeast of the crossing. The wagon was cut loose from the mules and immediately after the accident the mules were grazing adjacent to the tracks on the north side thereof. The lead mule, or the left-hand mule, was blind. There was evidence by some witnesses who stated they heard the father of the plaintiff say shortly after the accident that the reason the mules turned off of the parallel road onto the road which goes across the tracks was because the right line broke, thereby throwing all of his weight on the left line, causing the mules to turn suddenly to the left. Wolverton, however, denied making this statement at the trial, and still maintained that he did not know why the mules made...