Tannehill v. Kansas City, Clinton & Springfield Railway Co. , 279 Mo. 158 ( 1919 )

PARIS, J.

Appellant as the curator of certain minor children of one H. Earl Tennehill, deceased, sued to recover damages for the negligent killing of the latter by a passenger train of defendant. Upon a trial nisi, the court at the close of plaintiff’s case in chief sustained defendant’s demurrer to the evidence. Thereupon plaintiff took a voluntary nonsuit with leave. Cast in his motion to set this nonsuit aside, plaintiff in the conventional mode appealed.

The grounds upon which plaintiff, pursuant to his petition, seeks to fix liability upon defendant, are: (a) The failure and neglect of defendant’s servants, agents and employees in charge of said train to sound the whistle or ring the bell upon defendant’s locomotive at the crossing where the decedent was struck and killed, and (b) the negligent failure to avoid striking and killing decedent at a place whereat he could and ought to have been seen in a position of danger in time to have stopped the train and thus avoided killing him. Defendant’s answer is a general denial and a plea of decedent’s contributory negligence.

Decedent, who lived at Garden City, Missouri, while riding in an automobile, was struck and killed, at a grade crossing of a public highway, called in the record the “Kenagy Crossing,” on December 18, 1914. The time was about one o’clock in the afternoon. The train was practically on time. The day was cloudy and overcast, damp and foggy, or misty. A light snow partially covered the ground, and the roads were muddy, or slushy. The railroad and the highway crossed at an angle of forty-five degrees.

Decedent and one of his brothers were returning to their home at Garden City from a trip to Clinton in an automobile. Decedent’s brother was driving the car, which car was jointly owned by decedent, the brother who was driving, and another brother. The curtains of the car were down as the car approached this crossing, though a view of objects to the side was obtainable through celluloid covered spaces, or windows, some seven or eight inches by twelve or fourteen inches in dimensions. Decedent was about thirty-five years of age, and slightly hard of hearing. His business was that of a real estate agent, wherein he seems to have been engaged with the brother in question, and perhaps with another brother, at his home town of Garden City.

The only eye-witness who testified upon the trial was the brother of decedent, who, as stated, was driving the car at the time the decedent was killed. Upon the testimony of this brother the ■ case, of necessity, must largely turn. He says that as he and decedent approached this crossing and, when at a distance of some 409 feet therefrom, he looked for an approaching train; that he knew a train was due from the south at about one o’clock, but that he did not know what time of day it was. Seeing no train, though from the point at which he looked a train coming as was the one which killed decedent could ordinarily have been seen when a quarter of a mile distant from the crossing, he continued driving. When he and decedent reached a point some forty feet from the crossing and while driving on an up-grade at the rate of five or six miles an hour, he again looked for a train. From this last point of observation, a train could ordinarily have been seen a quarter of a mile away, but on this day, on account of the prevailing weather conditions, the witness says, he could only have seen a train when the same was some 200 feet distant from the crossing. Seeing no train from this final point of observation, hearing none, and hearing no crossing signals, he looked in the other direction toward Garden City and continued driving until he reached the railroad track. There he suddenly saw the locomotive right upon him, and was instantly struck, and hurled with the car and decedent some 100 feet. From this impact decedent was fatally injured, dying in the afternoon of the same day, and the witness rendered unconscious for some few minutes. The automobile, this witness says, at the rate it was traveling when struck, could have been stopped in from eight to ten feet.

Whether the required statutory signals were given by sounding a whistle, or whether the train on this day and at this time was visible at a greater distance than that stated by decedent’s brother, is contradictory upon the record before us; some of plaintiff’s witnesses saying-these signals were given, some that they were not given, and some that if they were given the witnesses did not hear them. Touching the visibility of the train, so far as such visibility was affected by existing wheather conditions, some of plaintiff’s witnesses say they actually saw it on this day and at this time, while it was from a quarter of a mile to a mile and a half away. This, however, by the way, for the rule requires us here to apply every inference in favor of plaintiff, and to consider in his favor the very highest points shown by the proof. .

Since the case is a fact case, we will on this account reserve other facts for recital when we shall come to discuss what we deem to be the controlling law of the case.

Negligence!7

I. As forcast, this case presents but one question; that question is, was the evidence sufficient to take the case to the jury? Plaintiff in effect contends, w^h absolute correctness, we think (if it were, or could here be, considered alone), that there was sufficient evidence of one element of negligence pleaded, that is, as to the failure of the defendant to sound the whistle or ring the bell upon the engine (Sec. 3140, R. S. 1909), as to constitute primafacie negligence, to take the case to the jury. In this connection, plaintiff urges upon us the rule stated in the case of Peterson v. Railroad, 265 Mo. 462, which rule he excerpts bodily from the syllabus of the case. Taking the rule stated in the Peterson case as his text, plaintiff insists that since contributory negligence is an affirmative defense, the moment a prima-faeie case bottomed upon defendant’s negligence is made out, every such ease must go to the jury, and therefore this case ought to have gone to the jury.

This view, we think, leaves out of consideration another controlling point by which the rule contended for is in a proper case always modified. That point is, that even if the plaintiff’s evidence make out a primafacie case, or, to be more exact, make out proof of defendant's negligence, yet if in developing such a case the evidence adduced by plaintiff also proves plaintiff’s own contributory negligence as a matter of law, then the case is not one for the jury, but is one for the couid, and the court ought to sustain a demurrer to the evidence. [Sissel v. Railroad, 211 Mo. 515.]

In the Sissel case, supra, Graves, J. upon a point presented in that ’case which was much similar, and wholly analogous upon principle, said at page 526, this: “Even though there was no plea of contributory negligence, yet the trial court would be authorized to take a case from the jury upon a demurrer to the evidence whenever it was shown by plaintiff’s own proof there was contributory negligence, such as to preclude a recovery. Without a proper plea of contributory negligence the defendant should not be permitted to show, affirmatively, by his proof, that there was contributory negligence, but where the witnesses for plaintiff disclose the facts, an,d the court is thus possessed of them, such court has but one course to follow, and that is to say that by plaintiff’s proof no case has been made. The rule which this court has followed is thus stated in 5 Ency. Plead. & Prac., p. 13: ‘The defendant may take advantage of contributory negligence which is shown in the development of the plaintiff’s case, although he has not pleaded it as a defense.’ ”

In the instant case, there is a defensive plea of contributory negligence. If plaintiff may not recover when his- own evidence, or evidence which he offers, shows contributory negligence as a matter of law, even when defendant has not pleaded such contributory negligence, then a fortiori he cannot recover in such situation when defendant has interposed this plea. Even the case of Peterson v. Railroad, supra, which seemingly is largely relied on by plaintiff, does not, when the facts in that case are examined, nor even when the language used is carefully read, bear out the rule contended for by plaintiff. For the learned writer of that opinion, in stating the rule which is urged upon us, was careful to restrict it to cases wherein the primafacie case had been made ont, thus clearly negativing its application to a case wherein, though prima-facie the negligence of defendant is shown, yet goes farther and destroys such prima-facie case before he stops offering evidence, by proving his own contributory negligence as a matter of law. The rule we cite from the Sis sel case is too well-settled for either dispute or cavil.

Applying this rule to the facts shown in evidence in the instant case, we are of the opinion that the plaintiff’s proof shows contributory negligence of decedent as a matter of law, and thus precludes plaintiff’s recovery. Numerous witnesses offered by plaintiff testified to having seen the train which killed decedent when it was from a quarter of a mile or a mile, or more, distant. Witnesses for plaintiff who were half a mile away at the moment the train struck the car could even see the car, or the debris therefrom, flying through the air. But we concede, of course, that decedent was not under the rule enjoined on us in this sort of case, required to see the train as others saw it. If there be a witness who says that the weather conditions prevailing prevented the seeing of it at so great a distance, the case, so far as this phase is concerned, is one for the jury. [Lamport v. Ins. Co., 197 S. W. 95; Hanser v. Bieber, 197 S. W. 68; Campbell v. Railroad, 175 Mo. 161].

The brother of decedent, who was in the car driving it at and prior to the moment at which the latter was struck and killed, says that he could have seen the train, under ordinary conditions, a quarter of a mile away, at a time and from a place whereat the automobile was 490 feet distant from the crossing. When decedent and his brother got within forty feet or fifty feet of the crossing, this brother again looked south down the track, in the direction whence the train was approaching, and saw — he says — nothing of this train. He then turned his head in the other direction, looking toward Garden City and away from the point whence the train was coming, and without again looking, continued to drive toward the track, traversing the forty-feet of distance, till the car went upon the track and was struck by the train. When the brother looked last, forty feet away from the track, he was in such a position that even the weather conditions. considered, he could have seen the train when it was 200 feet away. Ordinarily, he says, he could from this point have seen it when it-was more than a quarter of a mile away. The automobile was then going up-grade at the rate of five or six miles an hour, and could have been brought to a stop in eight or ten feet. In other words, there was space between the time the driver last looked, and the place and moment at which he tried to cross the track and was struck, to have stopped the car four or five times. There can be no other reasonable inference than that the driver was guilty of contributory negligence, which, if he had been hurt, would have precluded his recovery. We think the physical facts to be deduced from uncontradicted evidence admit of no other inference.

Other facts in the case indicate that the engine and the car both reached this crossing at about the same instant. The front wheel on the left-hand side of the car struck the pilot of the engine. The step upon the right-hand side of this pilot was badly bent, as also were the steps leading from the ground to the cab of the locomotive on this same side. Both wheels upon the left side of the car were demolished, and there was mud upon the right-hand cylinder and the driving rod of the locomotive.

Leaving this phase of the case to be again recurred to, we are further of the'view that the evidence also shows the contributory negligence of decedent himself as a matter of law. Asked touching' the actions of decedent at the moment the automobile approached this crossing, decedent’s brother said:

“Q. And he turned around and was looking back to the rear end of the car at the time and before this collision? That is a fact isn’t it? - A. At the time lie was.

“Q. Was looking back at the time of this collision, be wasn’t looking out in front of the car but was looking back gathering these packages that he was going to give to his children, in the back part of the car, -wasn’t he? A. He had just turned around.

“Q. Well it took sometime to turn around didn’t it, a second or so? A. Oh, it didn’t take so great length of time.

“Q. Took just about as long as it would take to stop the car wouldn’t it? A. About.”

The above excerpt shows, we think conclusively&wkey; and there is nothing in the record to destroy or minimize its force — that decedent was not looking when he was driven into the zone of danger. He was looking to the .rear instead of toward the south, or to the front, a period of time sufficient to have brought about the stopping of the car before the car went upon the track. The mathematics of the situation shows this conclusively. For if, as the only witness upon this point says, the train was running from twenty-five to thirty-five miles an hour, or if, as plaintiff’s counsel assume, the train was running thirty miles an hour, and the car, as the driver thereof says, was running six miles an hour, then when the car got within ten feet of the track the train was in full view and only fifty or sixty feet away. There was then yet remaining time to stop the car, for the driver swears it could have been stopped in eight or ten feet. From the same figures, it is likewise demonstrable that when the train came into view of the deceased and his brother two hundred feet away, the car was then forty feet from the track. The space "was sufficient, upon all the evidence, within which to. have stopped the car four times before reaching the zone of danger. All this is true, with but slight variations, whether we take the minimum or maximum speed of the locomotive and the car, and whether we take the minimum or maximum space within which the car could have been stopped.

In such a situation, what was said by this court in the case of Kelsay v. Railroad, 129 Mo. l. c. 372, applies: ‘ ‘ The duty of a traveler upon a highway, in approaching a railroad crossing, to use all reasonable precautions to ascertain the approach of trains and to avoid injury by them is well settled law, not only in this court, but perhaps of all the courts of this country. This rule imperatively requires him to look carefully in both directions, at a convenient distance from the crossing, before venturing upon it, if by looking, a train could be seen. The duty will not be performed by attempting to look only from a point at which the view is obstructed. The duty is a continuing one until the crossing is reached. If there is a point between the obstruction and the track which gives opportunity to see it is the duty of the traveler to' look. He can not close his eyes and thereby relieve himself of the consequences of his own neglect. [Hayden v. Railroad, 124 Mo. 566.] ”

But, recurring to the question in the negligence of decedent’s brother who was driving, if we were to take the view that decedent was himself free from actual negligence, we are yet of the opinion that the obvious negligence of his brother who was driving is upon the facts in this record, imputable to decedent. For this brother, as stated above, admits that after looking for the train, the time of passing of which he knew, when he was forty or fifty feet from the crossing, he then looked no more, but turned his gaze toward Harden City, which was in the opposite direction from that from which the train was coming, and continued to look in this direction till the instant at which the train was actually upon him and struck the car.

NegSgence

In such situation, the joint enterprise and joint ownership of the automobile considered, the negligence of the driver was imputable to the deceased. It is true, that by the great preponderance of authority the negligence of the driver of an automobile is not imputable to a mere guest, or to a passenger who is riding in the machine, but who has no authority 'either over the machine or over the driver thereof. [Dale v. Denver Tramway Co., 97 C. C. A. 511; Baltimore v. Maryland, 92 C. C. A. 335; Lininger v. San Francisco Ry. Co., 18 Cal. App. 411; Tousley v. Pacific Ry Co., 166 Cal 457; Porter v. Jacksonville Ry., 45 Fla. 692; Ind. Traction Co. v. Love, 180 Ind. 442; Hubbard v. Bartholomew, 144 N. W. 13; Corley v. Ry. Co., 90 Kan. 70; United Railways Co. v. Crain, 123 Md. 332; Littlefield v. Gilman, 207 Mass. 539; Terwilliger v. Railroad, 209 N. Y. 522; Tonseth v. Portland Co.. 141 Pac. 868; Hermann v. Rhode Island Co., 90 Atl. 813; Latimer v. Anderson County, 95 S. C. 187.]

The like rule has been applied to the negligence of the driver of an automobile for hire, in a case wherein the passenger merely gives directions as to the desired designation, but who neither has nor exercises any further control over either the machine, or the driver. [Rush v. Ry. Co., 157 Mo. App. 504; McFadden v. Lott, 161 Mo. App. 652; Thompson v. Ry., 165 Cal. 748; Roby v. K. C. Ry. Co., 130 La. 880; Meyers v. Tri-State Co., 121 Minn. 68; Wachsmith v. Railroad, 233 Pa. 465; Wilson v. Puget Sound Co., 52 Wash. 528; Galloway v. Detroit Ry. Co., 168 Mich. 343.]

But in the instant ease, decedent and his brother, who AA7as the driver of the car of which these two and another brother were joint owners, were engaged in a joint enterprise. They were returning to Garden City, whereat they were engaged as partners in the real estate business, from Clinton, to AAhich place they had been on some sort of business or pleasure, the record so far as we are able to find, not disclosing which. In such case, it is almost universally held that the negligence of the driver of the car is to be imputed to the other member of the joint enterprise. [Payne v. Chicago, etc., Ry. Co., 39 la. 523; Nesbit v. Garner, 75 la., 314; Donnelly v. Brooklyn Ry. Co., 109 N. Y. 16; Schron v. Staten Island Ry. Co., 45 N. Y. Supp. 124; Boyden v. Fitchburg Ry. Co., 72 Vt. 89; Omaha Ry. Co. v. Talbot, 48 Neb. 628.]

Here then, whether decedent and his brother were in their journey to Clinton upon either pleasure or business bent, they were neither master and servant, employee and employer, nor guest or passenger of the other. They owned the car jointly, they were upon a joint enterprise, either of business or' pleasure, and neither had any more or any less control of the car at the time than the other. In such case, it seems clear that the negligence of one part owner of the car, when engaged in a joint enterprise, is imputable to the other. So, upon either view, the ruling of the learned court nisi in sustaining the demurrer to the evidence was well taken.

Doctrine.3,113"”

II. But it is contended that there was a duty, arising from the humanitarian doctrine, to avoid injuring decedent. This contention upon the record before us deserves but short shift. The brother of decedent says that from a point forty or fifty feet from the track is was only possible to see the train when it was two hundred feet from the crossing. The only witness offered in the case to show within what space the train in question could have been stopped, at the rate it was running, swore that it could only have been stopped in from four hundred to six hundred feet. If decedent and his brother could see the train for the first time only when it was two hundred feet from the crossing, we may safely assume that the servants, agents and employees of the defendant in charge of its train could not see the automobile at a distance, on this day, greater than two hundred feet. Therefore,' if it requires a minimum of even four hundred feet within which to stop the train, no further comment is necessary. This view, of course, leaves out of consideration the testimony of other witnesses for plaintiff who swore that the train was in fact visible at a much greater distance than two hundred feet on this day. But none of these witnesses was at the point when they saw the train, that deceased and his brother occupied. Moreover, there inevitably arises in the case upon the latter view, a consideration of how far defendant was justified in concluding that decedent would stop before reaching the track,, in taking the course which defendant took. The learning upon the latter point is extensive, and we need not take up space here to discuss it. Merely remarking, in passing, that if it be in fact a duty incumbent by law upon a defendant railroad to stop its trains whenever those in charge thereof see an automobile within forty or fifty feet of a railroad crossing, and running only five or six miles an hour, it would require in many cases three or four days for a train to cross this State. But upon this point, and upon the rules suggested by what we have said, we may content ourselves with saying that the record herein is replete with facts showing that this is not a last-chance-doctrine case.

It results that the view taken nisi was correct, and this case ought to be affirmed. Let it be so ordered.

All concur.