279 Mo. 158 | Mo. | 1919
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. There
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.
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,
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.
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
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 prima
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, con
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.
*169 “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.
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.
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
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.
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.
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
It results that the view taken nisi was correct, and this case ought to be affirmed. Let it be so ordered.