Malone v. St. Louis-San-Francisco Railway Co.

*13 DAUES, P. J.' — This is an action for damages for personal injuries sustained by plaintiff on December 21, 1923, when an automobile in which plaintiff was riding was struck by one of defendant’s passenger trains at a crossing in St. Louis county, Missouri. There was a verdict and judgment in favor of plaintiff for $2500, from which defendant appeals. The case was submitted on the allegation of negligence that defendant failed to give the statutory signal at the railroad crossing, and though the petition prayed for damages for personal injuries sustained by plaintiff as well as for damages to the automobile, the instructions limited the damages to the personal injuries. The answer is a general denial, with pleas of contributory negligence on the part of plaintiff and the driver of the automobile. The reply is a general denial. The chief assignment of error goes to the action of the lower court in refusing a demurrer to the evidence at the close of the whole case, and the argument is made that both plaintiff and her brother, the driver of the automobile, saw and had notice of the approaching train before the collision, and that accordingly a failure, if any, to give the statutory signal was not the proximate cause of the injury, and that plaintiff is barred from recovery by the negligence of her driver, which is imputable to her. So, with the controversy about these facts in mind, we will attempt to briefly state the,evidence as disclosed by the record. Plaintiff and her brother, Lyman E. Malone, on the day of the accident, were riding in an automobile which belonged to plaintiff and which was then being driven by her brother. They were driving in a westerly direction over Manchester road in St. Louis county, near the town of Allenton at a point where defendant’s tracks cross Manchester road just west of said village. There were two other *14 passengers in the automobile at the time of the accident. Plaintiff was riding in the back seat, and her brother, the driver, was in the front seat when they came to the railroad crossing. Both plaintiff and her brother testified that the automobile was stopped about eight or ten feet from the tracks, and plaintiff from the rear seat and the driver from the front seat looked in both directions and listened for an approaching train. It was their testimony that they neither heard nor saw the train approaching. It was about nine o’clock in the morning and all the witnesses agreed that it was an extremely foggy morning. There is evidence that the train at this point because of the density of the fog could not be seen more than one hundred fifty feet to two hundred feet away. After the car was stopped and the occupants heard and saw no train, the driver then moved up slowly, placing the car in second speed to cross the tracks. He did this after he and plaintiff concluded that the track was clear so far as they could see and hear. After the car had reached to within one to five feet of the track the driver saw a train “poke its nose through the fog.” He immediately exclaimed: “My God! get out of the car.” All left the car in safety excepting the plaintiff, who, it seems, got as far as the running board when the train struck the automobile and thereby injured her. The driver testified that when he saw the train emerge through the fog, same was about one hundred and fifty feet away from him, and that this was as far as one could see the train at that place under those weather conditions. Plaintiff, testifying in her own behalf, frankly admitted that she could not tell the distance in feet or yards, but when invited to make a guess at the distance said she thought it was not more than one hundred and fifty yards, but she made it plain that she was not competent to judge distances in yard measurements. Both agreed, however, that as soon as they saw the train, which was as soon as it could be seen, emerging from the fog it was but an instant until they were struck. The driver testified that he attempted to stop the car when he first saw the train piercing the fog, and that he attempted to stop the car for the reason that, for a moment, he thought the train was on another track, but that when he realized it was on the track that the automobile was on, he discovered it was too late to start the car again and he then ordered all to spring for their lives. He testified that he did not know whether the engine was killed in making the shift. Plaintiff and the driver both testified positively that no signal was given, either by bell or whistle, of the approaching train until within a few feet of the crash, that is to say, about fifty or seventy-five feet away. Defendant’s evidence strongly contradicts the evidence adduced by plaintiff. Witnesses testified as to the ringing of the bell and as *15 to the admission on the part of the driver after the accident that he had killed his engine on.the track. However, in determining the question on the sufficiency of the proof to make a case for the jury, the proponent of a demurrer may not look to his own proof to destroy the prima-faeie case of plaintiff. Plaintiff, however, may resort to the defendant’s proof as an aid to plaintiff’s case, so we are not concerned here with the defendant’s evidence on the side of an argument in favor of the demurrer. Plaintiff by her own testimony, and by the testimony of the driver of the ear, plainly made out a prima-facie case which brought the case to the jury for solution on the facts. Plaintiff and her brother both testified that because of the weather conditions they exercised the precaution to stop their car within eight or ten feet of the track. Not alone the driver, but the plaintiff as well, looked both ways; they listened for an approaching train; they saw none, and they did not hear either whistle or bell or other noise indicating that a train was approaching. They then started the car towards the track, continuing to look and listen for a train; they still saw none and heard no whistle. Other witnesses testified that there were no signals given. Once being on the tracks, they saw the engine burst through the fog at a distance of about one hundred fifty feet away. They momentarily concluded to stop, then fully realizing the danger attempted to leave the car to seek safety, and plaintiff was injured. This made a case for the jury. The doctrine of the case of Peterson v. United Rys. Co., 270 Mo. 67, 192 S. W. 938, and similar eases do not apply under the facts of this case. The mere fact that plaintiff and the driver finally saw the train one hundred fifty feet from the crossing coming through the fog, the train at that time according to the trainmen was then running between twenty and thirty-five miles an hour, and it being admitted that you could not see an object ahead more than two hundred feet away, certainly does not show that the failure to give the statutory signals was not the proximate cause of the collision. [Hornstein v. United Rys. Co., 195 Mo. 440, 92 S. W. 884; Weltch v. Railroad, 190 Mo. App. 213, 176 S. W. 261; Detchemedy v. Wells, 253 S. W. 150; McNulty v. Railroad, 203 Mo. 475, 101 S. W. 1082.] The evidence tends to show that the train could not be seen more than one hundred fifty feet away on account of the fog. The crossing, then, will be treated as an obstructed one. Plaintiff had a right to rely upon the statutory signals being given, and when she and the driver listened for them and heard none, her attempt then to cross would not make her conduct such as to adjudge her guilty of contributory negligence as a matter of law. [McKardell v. Railroad, 257 S. W. 166; Boques v. Rutler Co. R. Co., 264 S. W. 474.] Defendant criticizes plaintiff’s instruction No. 1. This instruction is as follows: *16 “The court instructs the jury that if you find, from the evidence in this ease that the crossing- over the defendant’s tracks at the place mentioned in the evidence was a place where a traveled public road crossed the defendant’s tracks, then when one of the defendant’s trains was approaching said crossing the law of this State requires either that the bell be rung at least eighty rods before the locomotive reached said crossing and that it continue to ring the bell until the locomotive has passed said crossing, or that it sound the whistle at least eighty rods before the locomotive reached said crossing, and that it continue to sound the whistle at interváls thereafter until the locomotive has passed said crossing, and that a failure to perform one or the other of these duties imposed on the defendant by the law would constitute negligence. “The court, therefore, instructs you that if you find from the evidence that on or ab.out the 21st day of December, 1923, that an automobile in which plaintiff was riding was struck by one of the defendant’s locomotives where the tracks cross a public traveled road and that plaintiff was injured; and if you further find from the evidence that the defendant was guilty of negligence in failing to ring the bell or sound the whistle in the manner above set forth, and that the plaintiff and the driver at the time were in the exercise of the highest degree of care, then the law presumes that the striking of the automobile and injury to plaintiff, if any, was the direct result of the failure of the defendant’s agents and employees to give such signals, if they did so fail, and before you can find against the plaintiff on the ground that her injuries, if any, were not caused by the failure of the defendant’s agents and employees to give the signals, if they did so fail, the burden is cast upon the defendant to prove to your reasonable satisfaction that the failure to give the signals, if they did so fail, was not the direct cause of the injury, if any, to plaintiff.” It is said, first, that the instruction tells the jury that if they find the defendant guilty of negligence in failing to give the crossing signals and that plaintiff and the driver at 'the time were exercising the highest degree of safety, then the law presumes that the striking of the automobile and the injury to plaintiff, if any, were the direct result of the failure to give a signal. This instruction, as we read it, tells the jury effectually, and it would be so understood, that if the plaintiff and the driver were not found to be guilty of contributory negligence, and if the statutory signals were not given, then under the law the failure to give the signal is presumed to be the proximate cause of the accident, and that the burden is then cast upon defendant of proving by the preponderance of evidence that the failure to give a signal was not the proximate cause of the accident. *17 In McGee v. Railroad, supra, the Supreme Court said: “Under that statute, plaintiffs Avere relieved from proof that the failure to ring the bell or sound the whistle was the proximate cause of the injury. The statute supplies the causal connection. In other-words, given proof of a failure to comply with the law and that injury ensued at the crossing (as here), then the statute raises a presumption that the injury was the result of disobeying the statute— that they bore the relation of cause and effect — and the burden is cast upon the defendant to show that the failure to give the statutory signals did not cause the injury, ’ ’ citing cases. And there are many authorities in this State to the same effect. We think the first complaint will not avail the defendant. The second objection to the instruction is that it requires the defendant to both ring the bell and sound a whistle. We do not find merit in this objection. It would appear clear to the ordinary juror that the instruction simply declares that under the law of this State it is necessary that defendant either ring a bell or sound a whistle at a crossing. The instruction plainly could not have been understood to mean that the defendant was required to both ring a bell and sound a whistle. We do not believe that the instruction is ambiguous in that particular. However, if an ambiguity is present by remote reason, the defendant cleared up such ambiguity by its own instruction. It should be noted, too, that the portion complained of was a declaration of the duty of defendant under the law in approaching a crossing, and then the jury were charged that if they find from the evidence “that the defendant was guilty of negligence in failing to ring a bell or sound a Avhistle in the manner aforesaid,” etc. Our courts are more and more adopting the view that instructions should be read together, having in mind of course that the necessary elements of recovery must all be included in the main instruction covering the whole case and authorizing a recovery. ■ As was said by the late lamented Judge Lamm, in Deschner v. Railroad, 200 Mo. 310, l. c. 333, 98 S. W. 737: ‘ ‘ But what the jury saw in the court’s instruction through the glass darkly, they saw face to face when the whole body of the law was declared to- them by the reading of defendant’s instruction numbered 4, which runs as follows.” [See, also, Maloney v. Railroad, 237 S. W. 509; Sutter v. Railways Co., 208 S. W. 851.] Defendant also complains of the court’s action in refusing certain of its instructions. We pass this matter with the observation that defendant’s instruction No. 3 was properly refused because the same matter is covered in another instruction given on behalf of defendant. And the defendant’s instructions Nos. 4 and 5 were withdrawal in *18 structions on issues in the case which were abandoned, and the refusal to give these instructions did not constitute reversible error. We have examined the other instructions which were refused and find that they, too, were covered by instructions that were given for the defendant. Finding no reversible error in the record, the judgment is affirmed. Becker and Nipper, JJ., concur.