Womack v. Missouri Pac. R. Co.

• Decision Date: 12 November 1935
• Parties: Anna Womack, Administratrix of the Estate of Nellie Womack, v. Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

88 S.W.2d 368

337 Mo. 1160

Anna Womack, Administratrix of the Estate of Nellie Womack, v. Missouri Pacific Railroad Company, a Corporation, Appellant

Supreme Court of Missouri

November 12, 1935

Appeal from Butler Circuit Court; Hon. Robert I. Cope Judge.

Affirmed.

Thos J. Cole and Dearmont, Spradling & Dalton for appellant; Edward J. White of counsel.

(1) The burden of proving that appellant's engineer saw, or by the exercise of ordinary care could have seen, the automobile which deceased was driving, after it entered the danger zone in time to warn her of her peril was on respondent. Beal v. Ry. Co., 256 S.W. 733. (2) In the absence of anything indicating to appellant's engineer that deceased, as she approached the crossing, was oblivious to her danger and intended to go on the crossing in front of the train, he had a right to assume that she saw the train approaching and would stop in a place of safety. It was error to refuse appellant's instructions in the nature of a demurrer. Beal v. Ry. Co., 256 S.W. 733; Elkin v. St. L. Pub. Serv. Co., 74 S.W.2d (2d) 600; State ex rel. Ry. Co. v. Reynolds, 289 Mo. 479, 233 S.W. 219; Lackey v. United Rys Co., 231 S.W. 956; Schmidt v. Ry. Co., 191 Mo. 233; Markowitz v. Ry. Co., 186 Mo. 350; Guyer v. Ry. Co., 174 Mo. 344. (3) Appellant's engineer was under no duty to sound a warning, under the humanitarian doctrine, unless he saw, or by the exercise of ordinary care could have seen, deceased about to enter a position of imminent peril. Elkin v. St. L. Pub. Serv. Co., 74 S.W.2d 600; Keele v. Ry. Co., 258 Mo. 80; Tannehill v. Railroad Co., 279 Mo. 173. (4) Deceased was not in a position of imminent peril until she was in or about to enter the danger zone. She was traveling not more than five miles per hour, could have stopped in a distance of from two to five feet and was therefore not in the danger zone until she was within a few feet of the track. Elkin v. St. Louis Pub. Serv. Co., 74 S.W.2d 600; Buyer v. Railroad Co., 174 Mo. 351; Boyd v. Ry. Co., 105 Mo. 371; Beal v. Ry. Co., 256 S.W. 733. (5) There is no substantial evidence showing that the collision could have been avoided by the sounding of a warning, after the peril arose, and appellant's instructions in the nature of a demurrer should have been given. Elkins v. St. Louis Pub. Serv. Co., 74 S.W.2d 600; Markowitz v. Railroad Co., 186 Mo. 359. (6) Appellant's engineer had a right to assume that deceased saw and heard what others nearby saw and heard. Wolf v. Railroad Co., 212 Mo.App. 43; Laun v. Railroad Co., 216 Mo. 580; Burge v. Railroad Co., 244 Mo. 94.

L. E. Tedrick and Phillips & Phillips for respondent.

(1) Plaintiff's right to recover under the humanitarian doctrine was a question for the jury under the facts of this case. Defendant's engineer saw, or by the exercise of ordinary care could have seen, the automobile which plaintiff's daughter was driving, in danger from defendant's train in time to have avoided the collision by sounding the whistle, and negligently failed to do so. Alexander v. Ry. Co., 38 S.W.2d 1023, 327 Mo. 1012; Hencke v. Railroad Co., 72 S.W.2d 798; Smith v. Frisco, 9 S.W.2d 944; Phillips v. Henson, 30 S.W.2d 1068; Rummels v. Ill. Cent., 15 S.W.2d 366; Kloeckner v. St. L. Pub. Serv. Co., 53 S.W.2d 1044, 331 Mo. 396; Smith v. Kansas City Pub. Serv. Co., 43 S.W.2d 553, 328 Mo. 979; Herrell v. Ry. Co., 18 S.W.2d 485; Homan v. Mo. Pacific, 64 S.W.2d 623; Zumwalt v. Ry. Co., 266 S.W. 717; Anderson v. Davis, 284 S.W. 439, 314 Mo. 515; Brockman v. Robinson, 48 S.W.2d 128; Ellis v. Met. St. Ry., 138 S.W. 23, 234 Mo. 657. (2) Engineer could not assume automobile would stop. Hencke v. Railroad Co., 72 S.W.2d 799; Logan v. C. B. & Q., 254 S.W. 711, 300 Mo. 611; Chapman v. Mo. Pac., 269 S.W. 690; Smith v. Ry. Co., 282 S.W. 64; Holmes v. Mo. Pac., 207 Mo. 149, 105 S.W. 624; Dutcher v. Wabash, 241 Mo. 165, 145 S.W. 63. (3) The question of the right of defendant's employees to assume that the automobile would stop before driving on the crossing is not in this case because none of the train crew testified that they saw the car and relied on its stopping, and as a result thereof failed to give timely signals. Anderson v. Davis, 284 S.W. 449, 314 Mo. 515; Green v. Mo. Pac., 192 Mo. 131. (4) Defendant's engineer "was required and trained to be in a position of watchfulness where he could not be surprised and could act quickly in emergencies" that might present themselves at crossings over public highways. Zumwalt v. Ry. Co., 266 S.W. 725; Moore v. Frisco, 283 S.W. 734.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action for wrongful death, on behalf of next of kin, under Section 3262, Revised Statutes 1929. Plaintiff's daughter, Nellie Womack, was killed by defendant's train on a public crossing in Butler County. The case was submitted only upon negligence under the humanitarian doctrine in failing to give warning of the approach of the train. Plaintiff recovered a verdict for $ 10,000, and from the judgment entered thereon defendant has appealed.

Defendant did not call the trainmen to the witness stand and offered no evidence except photographs and measurements, but contends that plaintiff's evidence was not sufficient to make a jury case. We will therefore consider the evidence from the viewpoint most favorable to plaintiff's contentions. Miss Womack was the teacher at a country schoolhouse located on the west side of plaintiff's right of way, which ran through that locality in a northerly direction. She stayed at the farm home of B. A. Stoecker, about 1000 feet east of the right of way. The day of the accident was the last day of school and there was to be a community dinner at the schoolhouse. Miss Womack started in her car, a Model A Ford coupe, about eight A. M. to make preparations. The road from the Stoecker house to the schoolhouse was a dirt road ("some sand and some gumbo"), which ran east and west. The railroad crossed it at almost a right angle. There had been about a one-inch rain during the night so that on the morning of the accident, the road was slick, muddy and full of ruts, "probably a foot to eighteen inches deep." Miss Womack started from the Stoecker house with two small Stoecker children and Mrs. Stoecker's daughter, Mrs. Crenshaw, then Mildred Porter. Miss Womack, driving, sat on the left side of the car; the side windows were open. Miss Porter was seated on the right side of the car and one of the Stoecker children was on Miss Porter's lap, the other seated between them. Only Miss Porter survived the accident and she testified to the course of the car and the actions of the driver before reaching the track. She was unconscious for some time after the accident.

The country on each side of the road was flat and defendant's track was on an embankment from three and one-half to four feet higher than the surrounding country. Beginning at a point about 1520 feet south of the crossing, there was timber which obscured the view of the track on the south. It was, however, possible to see south down the track as far as the timber after passing an orchard, on the south side of the road, about 400 feet east of the crossing. It was possible to see farther south on the track from points nearer the crossing. At fifty feet east the view was 4100 feet south. Near the edge of the right of way and about sixty feet east of the track, there were two trees, one nineteen inches in diameter and the other twenty-one inches in diameter. One tree was in the highway a little north of the south highway fence, the other just south of this fence. These trees were close together and it was shown that they obscured the view of the track at that point so that they made a blind spot, for a few seconds, for a driver going west. There was a mudhole that morning on the right-hand side of the road about even with the two trees, so that "Miss Womack had to go around the mudhole on the left-hand side of the road and that put her over next to the two trees." Miss Porter testified that both she and Miss Womack looked south when they passed the orchard about 400 feet from the crossing; that they could see "down to the woods;" and that "the train hadn't come out of the woods." She said that she looked south again near the right of way when they "had not passed the two trees" and that Miss Womack was then "either looking or she was just turned around in that direction." She said that she "could see down to the scope of woods except the space where the two trees hid the view." Miss Porter also said that the next time she looked south the "front part of the car was on the track;" that then "the train was on the cattle guard;" that she "never heard the train sound any alarm;" and that Miss Womack had "looked twice to the south," the second time being before they passed the trees. Miss Porter further said that "the road was rather wet and rather muddy that morning;" that the mudhole was in the dirt part of the road and "might have been directly across from the right of way fence;" that Miss Womack was driving the automobile at about five miles per hour; and that "it continued at about the same rate of speed on up to the crossing."

The train was about an hour late and was running from sixty to sixty-five miles per hour. The engine was stopped about a quarter of a mile north of where it struck the automobile. The rise of the road to get over the track was shown by the following measurements: 70 feet east of the track, the road was 3.06 feet below the top of the rails; 60 feet east, it was 2.09 feet below; 50 feet east, it was 2.06 feet below; 40 feet east, it was 1.09 feet below; 30 feet east, it was 1.04 feet below; and 20 feet east, it was only six inches below. It had some gravel on it across the right of way, but ...