BRIST, ADMR., v. KURN AND THOMPSON

E.G. Nahler and Ward Reeves for appellants.

The court erred in refusing to give to the jury defendant's Instructions Nos. A and B in the nature of demurrers to the evidence, or pre-emptory instructions to find the issues in favor of the defendants, which were offered at the close of plaintiff's case and again at the close of the whole case. (a) The deceased was guilty of contributory negligence of a degree equal to or greater than any negligence on the part of the defendants. It is admitted that the deceased drove his truck with the left cab window down, in an easterly direction, at a rate of speed of 15 miles per hour, from a point 63 feet at right angles with the railroad tracks and up an incline when the train in question was approaching from deceased's left at a rate of speed of 60 miles per hour in plain view, and within the hearing of the deceased. Under the Arkansas comparative negligence statute the court as a matter of law should have declared deceased's negligence equal to or greater than that of the employees of the defendants, and Instruction No. B should have been given. Mo. Pac. Ry. Co. v. Dennis, 166 S.W.2d 886 (Ark.); Mo. Pac. Ry. Co. v. Carruthers, 162 S.W.2d 912 (Ark.); Mo. Pac. Ry. Co. v. Howard, 161 S.W.2d 759 (Ark.); Mo. Pac. Ry. Co. v. Doyle, 160 S.W.2d 856 (Ark.); Mo. Pac. Ry. Co. v. Davis, 125 S.W.2d 785 (Ark.); Mo. Pac. Ry. Co. v. Moore, 138 S.W.2d 385 (Ark.); Miller v. Union Pac., 290 U.S. 227; Louisiana Arkansas Ry. Co. v. Smith, 133 F.3d 436 ( Certiorari denied) 320 U.S. 212, on June 21, 1943); Hendon v. Kurn, 351 Mo. 980, 174 S.W.2d 806. (b) There was no submissible case made under the Arkansas look-out statute. The Supreme Court of Arkansas holds that where the enginemen both testify a proper look-out is kept, then any statutory presumption that such a look-out was not kept goes out of the case, where, as here, their testimony is uncontradicted. Kansas City S. Ry. Co. v. Mickel, 183 S.W.2d 45 (Ark.); St. L.-S.F. Ry. Co. v. Williams, 180 Ark. 413, 21 S.W.2d 611. (c) The truck approached the crossing at a slow rate of speed and the train was in plain view of the deceased. The operators of the train had the right to assume deceased would stop before placing himself in a position of danger. Kansas City S. Ry. Co. v. Mickel, 183 S.W.2d 45; Mo. Pac. v. Davis, 197 Ark. 830, 125 S.W.2d 785; Crossett Lbr. Co. v. Carter, 201 Ark. 432, 144 S.E.2d 1074; Mo. Pac. v. Lemons, 198 Ark. 1, 127 S.W.2d 120. (d) The deceased approached the crossing at a slow rate of speed for a distance of 63 feet with the window down and train in plain view to his left. Under such circumstances the law required him to see or hear what is plainly to be seen or heard, although he may have neither seen nor heard the train. Mo. Pac. v. Dennis, 166 S.W.2d 886 (Ark.). (e) Under such circumstances the failure to give warning signals become unimportant. Mo. Pac. v. Doyle, 203 Ark. 1111, 160 S.W.2d 856; Mo. Pac. v. Howard, 161 S.W.2d 759 (Ark.); Mo. Pac. v. Davis, 125 S.W.2d 785 (Ark.); Mo. Pac. v. Moore, 138 S.W.2d 385 (Ark.). Wils Davis, L.E. Tedrick and Hal H. McHaney for respondent.

The appellate courts of Missouri in considering the weight and sufficiency of the evidence on appeal in the case a bar will apply their own rules of procedure. Under the rule of procedure applicable in this State, the respondent is entitled to the favorable evidence rule. That is to say: The defendant's demurrer admits as true every fact and circumstance which plaintiff's evidence tends to prove; that plaintiff is entitled to every inference of fact which may reasonably be drawn therefrom; that the evidence must be considered in the light most favorable to plaintiff; that defendant's evidence must be disregarded except as it may tend to aid plaintiff's case and that such demurrer may only be sustained when the facts in evidence and the legitimate inferences to be drawn from such facts are so strongly against plaintiff as to leave no room for reasonable minds to differ. Hopkins v. Jurn (Mo.), 171 S.W.2d l.c. 632; Cento v. Security Building Co. (Mo.), 99 S.W.2d 1, 5. But insofar as the substantive law of the case is concerned, it is the duty of the courts of Missouri to take judicial notice of the statutes of the State of Arkansas, wherein the collision occurred, pertinent to the cause and pleaded in plaintiff's petition, as well as the decisions of the Supreme Court of Arkansas construing those statutes: R.S. Mo. 1939, sec. 1057; Hopkins v. Kurn (Mo.), 171 S.W.2d 625, 631; Draper v. Louisville N.R. Co. (Mo.), 156 S.W.2d 626; Barnes v. St. Louis-San Francisco Ry. Co. (Mo.), 92 S.W.2d 164, 166; Kirkdoffer v. St. Louis-San Francisco Ry. Co., 321 Mo. 166, 37 S.W.2d 569; Newlin v. St. Louis-San Francisco Ry. Co., 222 Mo. 375, 392, 121 S.W. 125, 130. Under the laws of Arkansas a submissible case was made by the plaintiff based upon the failure of the defendant to give the statutory crossing signals under the comparative negligence statute prevailing in Arkansas. Under the laws of Arkansas, as pleaded in plaintiff's petition, it is the duty of a railroad company to ring a bell or blow a whistle at a distance of at least 80 rods from the place where the railroad shall cross any road or street and said bell or whistle shall be kept ringing or whistling until it shall have crossed said road or street and by said statute said railroad company shall be liable for damages that may be sustained by reason of the failure to so ring the bell or blow the whistle. Pope's Digest of the Statutes of Arkansas, sec. 11135; Mo. Pacific Ry. Co. v. Robertson, 169 Ark. 957, 278 S.W. 375. Under the laws of Arkansas, as pleaded in plaintiff's petition, in suits against railroads for personal injury or death caused by running of trains, contributory negligence does not prevent a recovery if the negligence of the person injured or killed is of less degree than the negligence of the employees of the railroad causing the injury. And where contributory negligence is shown on the part of the person injured, it shall not be a bar to recovery but the amount of the recovery shall be diminished in proportion to the contributory negligence. Pope's Digent of the Statutes of Arkansas, sec. 11153; Mo. Pacific Ry. Co. v. Magness (Ark.), 178 S.W.2d 493; St. Louis-San Francisco Ry. Co. v. Beasley (Ark.), 170 S.W.2d 667; Mo. Pacific Ry. Co. v. Creekmore (Ark.) 102 S.W.2d 553; Hendon v. Kurn (Mo.), 174 S.W.2d 806; Kirkdoffer v. St. Louis-San Francisco Ry. Co., 327 Mo. 166, 37 S.W.2d 569; Ramey v. Mo. Pacific Ry. Co., 323 Mo. 662, 21 S.W.2d 873. In the case at bar the deceased truck driver approached the railroad crossing in question traveling at a rate of speed of 15 miles per hour up an incline without slackening his rate of speed. The train approached from the deceased's left traveling at 60 miles per hour. There were some obstructions of the view of the deceased motorist to the north by reason of telegraph poles, weeds, brush and undergrowth located on defendant's right-of-way. The trainmen, located at a much higher elevation than the deceased, had a better view of the deceased than the deceased had of the approaching train. The engineer could have seen the deceased as he approached the railroad crossing for a distance of 63 feet. The deceased could have stopped his truck at any time within 8 feet. The road over which the deceased was traveling was a gravel road and his truck was making a lot of noise. The train was approaching so silently that others in the truck who survived the accident did not hear it until the very instant of the collision. The road over which the deceased was traveling was a very rough, narrow, one-way road. The railroad crossing was located upon a high embankment 6 feet and 10 inches above the elevation of the adjacent U.S. Highway No. 61 from which the deceased had driven. The deceased had traveled south along said highway for a distance of approximately two miles to the gravel road intersection leading east to the crossing in question. As the deceased approached the crossing, he could not see over the road to determine whether or not westbound traffic was approaching him. The last 38 feet and 6 inches of the approach to the crossing over which deceased traveled was 15 feet in width. The road approach from that point west to its intersection with highway 61 increased in width until at said highway it was 45 feet in width. Fifteen to twenty feet of said crossing nearest the tract over which the deceased traveled is abruptly precipitous; while, from that point west to the intersection with the highway the decline is gradual and less precipitous. When the rear of the deceased's truck was approximately one and one-half steps from the concrete pavement of highway 61 or approximately 4 to 6 feet from said pavement and when the front of the truck was approximately 40 feet from the west rail of the railroad track, a negro boy, who had been riding in the rear of the truck and who was peering out of the side of the truck as it approached the crossing, saw the train and excitedly jumped out of the truck and ran across highway, No. 61 and sat down. Another negro boy, in the rear of the truck but who was located on the south side of the truck as it approached the crossing, and who had neither seen nor heard the approaching train but who had observed the excitement of the first negro boy who jumped from the rear of the truck, looked up and down the highway to ascertain the cause of the first negro's excitement and then by accident looked through the cracks of the truck body to the north in time to see the train approaching and to jump from the truck. All of such facts were clearly within the view and observation of the engineer in charge of defendant's train and should have been sufficient to convince any prudent person of the intention of the deceased to go on to the track in front of the approaching train and of his obliviousness of his impending peril. The admitted contributory negligence of the deceased is extenuated by reason of the obvious necessity of the motorist's close attention to the road because of its narrowness, precipitousness and roughness. Under such circumstances the operatives of defendant's train were not justified in assuming that the deceased would stop before going upon the track. It cannot be said as a matter of law that the contributory negligence of the deceased under the circumstances in going upon the crossing was greater than the negligence of the defendant in failing to give the statutory crossing signals, and the case upon this issue was properly submitted to the jury. Thompson v. Shell (Ark.), 185 S.W.2d 81; Mo. Pacific Ry. Co. v. Magness (Ark.), 178 S.W.2d 493; St. Louis-San Francisco Ry. Co. v. Beasley (Ark.), 170 S.W.2d 667; Mo. Pacific Ry. Co. v. Eubanks (Ark.), 139 S.W.2d 413; St. Louis-San Francisco Ry. Co. v. Hovley (Ark.), 137 S.W.2d 231; Louisiana Ark. Ry. Co. v. O'Steen (Ark.), 110 S.W.2d 488; Mo. Pacific v. Bode, 168 Ark. 257, 269 S.W. 361; Moseley v. Thompson (Mo.), 143 S.W.2d 310; Barnes v. Frisco (Mo.), 92 S.W.2d 164; Oxford v. Frisco, 331 Mo. 53, 52 S.W.2d 983; Kirkdoffer v. St. Louis-San Francisco Ry. Co., 327 Mo. 166, 37 S.W.2d 569; Ramey v. Mo. Pacific Ry. Co., 323 Mo. 662, 21 S.W.2d 873. In the case at bar there is no basis for the application of the Arkansas Rule to the effect that the operatives of the train had the right to assume the deceased would stop before placing himself in a position of danger, upon the question of the failure of the defendant to give the statutory crossing signals or the failure of the operatives of the train to keep a constant lookout. In the first place, the enginemen testified they had not seen the approaching truck. Furthermore, the rule mentioned is qualified to the extent that it is not applicable in cases where the action of the motorist and the surrounding circumstances are such as to indicate that the motorist does not intend to stop but intends to go onto the crossing and that he was oblivious of the approaching train. St. Louis-San Francisco Ry. Co. v. Beasley (Ark.), 170 S.W.2d 667; Mo. Pacific v. Taylor (Ark.), 137 S.W.2d 747; St. Louis-San Francisco Ry. Co. v. Horn, 168 Ark. 191, 269 S.W. 576; Gregory v. Mo. Pacific Ry. Co., 168 Ark. 469, 270 S.W. 621. The Arkansas rule in that regard is the same as the Missouri rule under the humanitarian doctrine. Thrower v. Henwood (Mo.), 173 S.W.2d 861; State v. Shain (Mo.), 159 S.W.2d 582; Perkins v. Terminal R.R. Assn. of St. Louis (Mo.), 102 S.W.2d 915; Womack v. Mo. Pacific Ry. Co. (Mo.), 88 S.W.2d 368. The approaching motorist has as much right to assume that the operatives of a train will give the statutory signals for the crossing as does the enginemen to assume that the motorist will not go onto the crossing. Mo. Pacific Ry. Co. v. Lemons (Ark.), 127 S.W.2d 120. Under the laws of Arkansas a submissible case was made by plaintiff based upon the failure of the defendant to keep a constant lookout. Under the laws of Arkansas as pleaded in plaintiff's petition, it is the duty of all persons running trains in that State upon any railroad to keep a constant lookout for persons upon the track and if any person shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible for all damages resulting from neglect to keep such lookout. If the required lookout is not kept and the injury could have been avoided by the exercise of ordinary care, the company is liable and the contributory negligence of the persons injured is not a defense. The burden of proof is upon the railroad to establish the fact that the duty to keep such lookout has been performed. Pope's Digest of the Statutes of Arkansas, sec. 11144; Thompson v. Shell (Ark.), 185 S.W.2d 81; St. Louis-San Francisco Ry. Co. v. Beasley (Ark.), 170 S.W.2d 667; Mo. Pacific Ry. Co. v. Eubanks (Ark.), 139 S.W.2d 415; Mo. Pacific Ry. Co. v. Barham (Ark.), 128 S.W.2d 353; Mo. Pacific Ry. Co. v. Lemons (Ark.), 127 S.W.2d 120; Mo. Pacific Ry. Co. v. Greene, 177 Ark. 217; Gregory v. Mo. Pacific Ry. Co., 168 Ark. 469. The mere testimony of the enginemen to the effect that a proper lookout is kept when the facts and circumstances surrounding the collision and their own admissions contradict them does not establish the keeping of the statutory lookout as required by law. Thompson v. Shell (Ark.), 185 S.W.2d 81; Mo. Pacific Ry. Co. v. Eubanks (Ark.), 139 S.W.2d 415; Mo. Pacific Ry. Co. v. Taylor (Ark.), 137 S.W.2d 747; Mo. Pacific Ry. Co. v. Lemons (Ark.), 127 S.W.2d 120; Baldwin v. Brim (Ark.), 91 S.W.2d 255. It is the duty of operatives of the railway to keep a lookout for persons approaching the track as well as persons on the track. Mo. Pacific Ry. Co. v. Eubanks (Ark.), 139 S.W.2d 415; Mo. Pacific Ry. Co. v. Lemons (Ark.), 127 S.W.2d 120; Mo. Pacific Ry. Co. v. Greene, 177 Ark. 217, 6 S.W.2d 26, 28. Under the Arkansas Lookout Statute, as construed by the Supreme Court of Arkansas, the plaintiff made a submissible case upon the question of the failure of the operatives of the train to keep a constant lookout. The operatives of the train, had they been looking, could have seen and observed the deceased driving at a steady rate of speed of fifteen miles per hour from a place where he would have been expected to stay had he not intended to go across the crossing, up a steep incline on a one-way road leading over a high railroad embankment and that the deceased was having to give close attention to the road; they would have observed people excitedly jumping out of the rear of the truck and other facts hereinbefore recited. Such facts were clearly sufficient to have convinced an ordinarily prudent person of the obliviousness of the deceased of the approaching train and his consequent peril and of his apparent purpose to drive onto the crossing in front of the train. Such purpose should have first become observable to the engineer when the excited negro jumped from the rear of the truck. At that time, the front of the truck was approximately forty feet from the track. Also, it should have been observable when the deceased drove up that part of the road which was narrowed to fifteen feet in width. The truck was then thirty-eight feet and six inches from the track. And it should have been more observable when the truck proceeded up the steep incline toward the track. The truck could have been stopped within eight feet. Had the engineer given a sharp warning with the whistle when either of the events referred to occurred, the driver would have had ample time to have stopped the truck before passing onto the crossing. Under these circumstances, it can not be said "that it was to the engineer `so plain, that average fair-minded men cannot reasonably differ about it,' that deceased did not appear oblivious to the oncoming train and did not show an intention to continue across the track." In Hines v. Betts, 146 Ark. 561, the Supreme Court of Arkansas, in discussing a similar question, said: "if the engineer had blown a sharp blast of the whistle this would have attracted Bett's attention to the nearness of the approaching train, and he might have accelerated his speed or have jumped from the track to a place of safety." Pope's Digest of the Statutes of Arkansas, sec. 11144; Thompson v. Shell (Ark.), 185 S.W.2d 81; St. Louis-San Francisco Ry. Co. v. Beasley (Ark.), 170 S.W.2d 667; Mo. Pacific Ry. Co. v. Eubanks (Ark.), 139 S.W.2d 415; Mo. Pacific Ry. Co. v. Taylor (Ark.), 137 S.W.2d 747; Mo. Pacific Ry. Co. v. Barham (Ark.), 128 S.W.2d 353; Mo. Pacific Ry. Co. v. Lemons (Ark.), 127 S.W.2d 120; Baldwin v. Brim (Ark.), 91 S.W.2d 255; Mo. Pacific Ry. Co. v. Greene, 177 Ark. 217; Gregory v. Mo. Pacific Ry. Co., 168 Ark. 469. The only assignment of error herein is that the court erred in refusing to give to the jury defendant's instructions Nos. A and B in the nature of demurrers to the evidence. Demurrers A and B were general demurrers. The effect of such demurrers is to merely challenge the whole case. If there is sufficient evidence to justify submitting the case upon either theory presented by the plaintiff, the ruling of the trial court in overruling such demurrers should be affirmed. Moore v. James Masonry Construction Company (Mo. App.), 27 S.W.2d 765, 766 (1), and cases there cited; Ramsey v. Miss. River B.T. Rwy. Co. (Mo. App.), 253 S.W. 1079.