Woodard v. Bush

• Decision Date: 10 April 1920
• Parties: JESSIE R. WOODARD v. B. F. BUSH, Receiver of MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

220 S.W. 839

282 Mo. 163

JESSIE R. WOODARD v. B. F. BUSH, Receiver of MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

April 10, 1920

Appeal from Jackson Circuit Court. -- Hon. Thomas B. Buckner, Judge.

Reversed and remanded (with directions).

Edward J. White and Thomas Hackney for appellant.

(1) The demurrer to the plaintiff's evidence was properly sustained because of deceased's contributory negligence. (a) If obstructions shut off deceased's view until his truck was so close to the main line track as to be struck by passing trains, it was his duty under the Kansas law to stop his truck and ascertain whether the track was clear before attempting to cross. Wehe v. Ry. Co., 97 Kan. 794. (b) If obstructions did not shut off his view, and before reaching the main line track the deceased, by looking, could have seen the train, it was his duty to stop and look after emerging from the obstructed zone. If he failed to do so he was guilty of contributory negligence. If he did stop and look he necessarily saw the train and was guilty of contributory negligence in attempting to cross in front of same. Atkinson v. Ry. Co., 103 Kan. 446; Williams v. Ry. Co., 102 Kan. 268; Jacobs v. Ry Co., 97 Kan. 247; Moler v. Ry. Co., 101 Kan 280; Pritchard v. Ry. Co., 99 Kan. 600; Butts v Ry. Co., 94 Kan. 328; Palmer v. Ry. Co., 90 Kan. 57; Corley v. Ry. Co., 90 Kan. 73; Beech v. Ry. Co., 85 Kan. 90; Adams v. Ry. Co., 93 Kan. 475; Gage v. Railroad, 91 Kan. 253; Wiley v. Ry. Co., 60 Kan. 819; Railroad v. Wheelbarger, 75 Kan. 811; Ry. Co. v. Jenkins, 74 Kan. 487; Bush v. Ry. Co., 62 Kan. 709; Railroad v. Schriber, 80 Kan. 540; Kelsey v. Railroad, 129 Mo. 372; Hugert v. Railroad, 134 Mo. 679; Hayden v. Railroad, 124 Mo. 566; Sanguinnette v. Railroad, 196 Mo. 494.

Harry G. Kyle for respondent; C. A. Stratton of counsel.

(1) When considering the ruling of the trial court upon the demurrer, this court will view the evidence in a light most favorable to the plaintiff. Stauffer v. Ry. Co., 243 Mo. 316; Hall v. Coal & Coke Co., 260 Mo. 365; Dudas v. Ry. Co., 185 P. 28; Johnson v. Ry. Co., 80 Kan. 463. (2) Violation of a city ordinance as to speed and warning is negligence per se, both in Kansas and Missouri. Hutchinson v. Ry. Co., 161 Mo. 253; Railway v. Moffatt, 56 Kan. 667; Erb v. Morasch, 8 Kan.App. 61; McClain v. Ry. Co., 89 Kan. 25; Railway v. Baker, 79 Kan. 183; Angell v. Railway Co., 97 Kan. 688; Railway Co. v. Herman, 64 Kan. 546; Railway v. Houts, 12 Kan. 328; Railway v. Kennedy, 2 Kan.App. 623. (a) It was a question of fact for the jury to determine whether the excessive speed of the train was the proximate cause of the injury. Lueders v. Ry. Co., 253 Mo. 115; Angell v. Railway, 97 Kan. 690. (b) The evidence supports the inference that deceased would have gotten safely across had not the speed been excessive. Angell v. Ry. Co., 97 Kan. 690. (3) Plaintiff made out a prima-facie case of negligence on failure to warn. (a) Whether deceased would have heard a bell, or other warning, had one been given, is a question of fact for the jury. Angell v. Ry. Co., 97 Kan. 690. (b) Timely warning by bell, or otherwise, while the deceased was still in a place of safety north of the track, would have enabled him to remain off the track and avoid the injury. (c) Plaintiff makes out a prima-facie case on the subject of listening by showing no bell was rung or whistle sounded as train approached the crossing, and the burden shifts to defendant. Weigman v. Ry. Co., 223 Mo. 699; Angell v. Ry. Co., 97 Kan. 688. (4) There is a presumption that the deceased exercised ordinary care. Weller v. Ry. Co., 164 Mo. 198; Riska v. Ry. Co., 180 Mo. 168, syl. 1; Tanner v. Ry. Co., 172 S.W. 445; Weigman v. Ry. Co., 223 Mo. 718; Atchison, Topeka & Santa Fe Ry. Co. v. Baumgartner, 74 Kan. 148; Atchison, Topeka & Santa Fe Ry. Co. v. Hayes, 79 Kan. 544; Fike v. Ry. Co., 90 Kan. 409. (5) The deceased had a right to presume that defendant would obey the law, as declared by the city ordinance, in running its train and in giving timely warning of its approach. Hitchinson v. Ry. Co., 161 Mo. 254; Weller v. Ry. Co., 164 Mo. 199; Riska v. U. D. R. Co., 180 Mo. 168, syl. 4; Lueders v. Ry. Co., 253 Mo. 97, syl. 4; Weigman v. Ry. Co., 223 Mo. 719; Atchison, Topeka & Santa Fe Ry. Co. v. Hague, 54 Kan. 294. (6) There is a presumption that deceased did not commit suicide, or knowingly risk an apparent danger. Hatchett v. Ry. Co., 175 S.W. 878. (7) Although there was no positive evidence deceased looked, that fact raises no presumption. Riska v. U. D. R. Co., 180 Mo. 168, syl. 3. There is no evidence warranting a holding that deceased was guilty of contributory negligence as a matter of law. (a) The question of contributory negligence, if any, of the deceased, is one of fact for the jury. Weller v. Ry. Co., 164 Mo. 198; Hutchinson v. Ry. Co., 161 Mo. 254; Lueders v. Ry. Co., 253 Mo. 97; Weigman v. Ry. Co., 223 Mo. 699, syl. 2; Jackson v. Ry. Co., 189 S.W. 381; Gratiot v. Ry. Co., 116 Mo. 450; Railway Co. v. Richardson, 25 Kan. 391; Railroad v. Hinds, 56 Kan. 758; McClain v. Ry. Co., 89 Kan. 25; Angell v. Ry. Co., 97 Kan. 688; Denton v. Ry. Co., 97 Kan. 498; Smith v. Ry. Co., 91 Kan. 33; U. P. Ry. Co. v. McCulloch, 77 Kan. 844; Ry. v. Moffatt, 60 Kan. 117; Johnson v. Ry. Co., 80 Kan. 456; Railway Co. v. Hague, 54 Kan. 295. (b) Deceased was not required to anticipate defendant's negligence. Hutchinson v. Ry. Co., 161 Mo. 246; Petty v. Ry. Co., 88 Mo. 306; Eswin v. Ry. Co., 96 Mo. 290; Crumpley v. Ry. Co., 111 Mo. 152; Jennings v. Ry. Co., 112 Mo. 268; Sullivan v. Ry. Co., 117 Mo. 214; Gratiot v. Ry. Co., 116 Mo. 450; Jackson v. Ry. Co., 189 S.W. 381. (c) It is only in exceptional cases that the court will declare the deceased guilty of contributory negligence, as a matter of law. Weigman v. Ry. Co., 223 Mo. 722; Underwood v. Ry. Co., 190 Mo.App. 407; Railroad v. Brock, 64 Kan. 90; Denton v. Ry. Co., 90 Kan. 51. (d) Contributory negligence is based on knowledge, or means of knowledge, of the danger, and utter disregard thereto. It is wholly absent in this case. C., R. I. & P. Ry. v. Hansen, 78 Kan. 278, and cases cited by appellant. (e) One suddenly placed in a perilous position by the negligence of another is not required to exercise the same judgment as if he had time for deliberation. Lueders v. Ry. Co., 253 Mo. 117; Weigman v. Ry. Co., 223 Mo. 720; Underwood v. Ry. Co., 190 Mo.App. 418.

GRAVES, J. Blair, P. J., concurs in paragraphs 1, 2 and 3 and the result.

OPINION

GRAVES, J.

Action for the alleged negligent killing of Robert L. Woodard, by one of the trains operated by the defendant. Deceased was a resident of the State of Missouri, but the petition is bottomed upon certain Kansas statutes, duly pleaded, as well as certain ordinances of the city of Kansas City in the State of Kansas. The negligence charged to the defendant is (1) the failure to have a watchman at the crossing where the deceased was killed, in Kansas City, Kansas, (2) running the train at a speed greatly in excess of six miles an hour, the rate of speed duly fixed by another ordinance of said city; and (3) failure to sound the whistle or ring the bell upon the approach of said crossing.

The answer of defendant was (1) a general denial, (2) a plea of contributory negligence, (3) the following special plea of contributory negligence:

"Further answering said petition, the defendant avers that under the law of Kansas, announced by the Supreme Court of that state in the following cases [List of cases we omit] and the cases therein referred to, it was the duty of said Robert Woodard, as driver of the automobile truck to stop said truck before reaching the said railroad tracks mentioned in the petition, and to ascertain whether there was an engine or cars coming before he drove his automobile on said track; and that said Robert Woodard negligently failed to ascertain whether the train was approaching and that his negligent conduct under said decisions precludes a recovery by the plaintiff herein."

And (4) several ordinances of the city of Kansas City are specifically pleaded, and invoked.

Reply was a general denial, and special plea as to repeal of the ordinance set out in answer, and the rulings in Kansas on contributory negligence.

After hearing the evidence for the plaintiff (who is the widow of deceased) the trial court sustained a demurrer to the evidence in this language:

"The court instructs the jury that under the pleadings and the evidence in this case, the plaintiff is not entitled to recover, and your verdict will be for the defendant.

"The reason is that the law is well settled that the traveler, where he approaches a roadway or street crossing and does not look or listen for the approaching train and is injured, it is the result of his own negligence; and if for any reason the passageway is obstructed so he cannot see, the law makes him stop and get in a position where he can see. Otherwise, it imputes to him negligence, and for that reason this instruction is given because the evidence of the plaintiff shows he was guilty of such contributory negligence as bars recovery in this case."

Verdict was for defendant under this instruction. Later the court sustained plaintiff's motion for a new trial, and from such order the defendant has appealed.

There is no formal assignment of error in the brief, but the sole point made in the brief is: "The demurrer to plaintiff's evidence was properly sustained, because of deceased's contributory negligence." The case therefore turns upon the facts under the applicable law of Kansas.

I. The negligence of failing to have a watchman at the crossing was abandoned in the trial. This for the reason that the ordinance relied upon...