In this reassigned cause Nadine Murphy was awarded $10,000.00 for her personal injuries and $10,000.00 for the death of her husband, William "Pat" Murphy. The plaintiff's injuries and her husband's death resulted when the Chevrolet automobile in which they were riding as guests was struck by a Santa Fe train on the grade crossing at Edgerton, Kansas, on the afternoon of July 1, 1942. Therefore, as the parties agree, the cause is governed by and must be adjudicated according to the laws of Kansas. State ex rel. Thompson v. Shain, 351 Mo. 530, 540, 173 S.W.2d 406, 410.
Here, as in its companion case, Mary Louise Murphy v. Atchison, T. S.F. Ry. Co., 353 Mo. 697, 183 S.W.2d 829, the essential outline facts are as follows:
Mary Louise Murphy, her husband, Glenn Murphy, and her brother-in-law, Pat Murphy, and his wife, Nadine, were riding in Glenn's 1941 Chevrolet business coupe on their way to the home of the Murphys' father and mother. Mary Louise was driving. The car was in excellent mechanical condition and Mary Louise was an experienced driver. Nadine sat next to the driver and her husband sat to her right on the seat, while Glenn sat on the raised floor back of the seat. *Page 649 When the car approached the Santa Fe tracks, which are described as running north and south, though they intersect [633] the east-west road at an angle of sixty-one degrees and ten minutes, Mary Louise stopped the car about twenty-five feet from the nearest or west main line rail until a freight train passed over the crossing on the east track. There was a large window in the door of the car and a smaller window just to the rear of the seat and Mary Louise said that because of the angle of the crossing and the manner in which they sat in the car it was necessary for her to look over her shoulder and through the small window to see down the railroad track to the south. As the caboose of the freight train passed over the crossing Mary Louise put the car in low gear and started forward, shifting into second gear about fifteen feet from the west rail. While the automobile was upon the track it was struck by the second section of the Santa Fe's No. 8 passenger train. The Murphy brothers were killed and Mary Louise and Nadine were seriously injured. West of Edgerton there had been a service application of the brakes and the speed of the train had been reduced to eighty miles an hour for an eighty mile an hour curve. The next curve was a seventy or seventy-five mile an hour curve and there had been a second service application of the brakes and the train had been steadied at seventy miles an hour and was traveling at that speed when it struck the car upon the crossing. One of the plaintiff's expert witnesses testified that the speed of the train could have been slackened from 70 miles an hour to "40, close to 35 in a distance of 400 feet." A second expert witness gave it as his opinion that the speed of the train could have been slackened from 70 miles an hour to between 25 and 30 miles an hour by an emergency application of the air brakes, in the distance of 350 to 400 feet. Another of the plaintiff's witnesses determined, to the rhythm of the secondhand on a watch and after several tests, that the Chevrolet coupe could be backed off clear of the track with the front bumper extending over the inside or east rail in "from a second and a half to a second and three-quarters, not over two seconds."
[1] In this as in the companion case it is sought to base the railroad's liability upon the last chance doctrine of Kansas, particularly as the doctrine is set forth in Trower v. M.-K.-T.R. Co., 347 Mo. 900, 909-911, 149 S.W.2d 792, 796-797;353 Mo. 757, 184 S.W.2d 428, and the Kansas cases there cited and discussed. In the companion case Mary Louise, the driver, was the plaintiff suing for her own injuries and for Glenn's death. In that case it was held that there was no liability on the part of the railroad because her own evidence demonstrated that she was guilty of concurrent and continuing contributory negligence, which prevents recovery under the last chance doctrine of Kansas. Dyerson v. Union Pac. R. Co., 74 Kan. 528, 536-537, 87 P. 680, 683; Goodman v. K.C.M. S.R. Co., 137 Kan. 508, 21 P.2d 322. In this case, however, there is the significant *Page 650 and distinguishing circumstance that the plaintiff, Nadine, and her husband were guests in the automobile. Because of that fact the respondent argues that their conduct and the circumstances as applied to them may not be gauged by the standards applicable to Mary Louise and her cause of action. It is urged, since she and her husband were guests, that any concurrent or contributory negligence on the part of the driver, Mary Louise, may not be imputed to them. Clark v. Missouri Pac. R. Co., 115 Kan. 823, 224 P. 920; Bradshaw v. Payne, 111 Kan. 475, 207 P. 802. It is stated that it must be made to appear that there was a failure on her part to exercise reasonable care and that such failure was a legally contributing cause of the injuries complained of before her action may be defeated. Farmer v. Central Mut. Ins. Co.,145 Kan. 951, 955, 67 P.2d 511; Link v. Miller, 133 Kan. 469, 300 P. 1105; Denton v. M.-K.-T. Ry. Co., 97 Kan. 498, 155 P. 812. The appellant railroad contends, nevertheless, that Nadine, as a guest, was guilty of contributory negligence in failing to warn Mary Louise of the approaching train, that her negligence in this respect was the proximate cause of the collision, and, therefore, the railroad is relieved of liability under the law of Kansas. Shepard v. Thompson, 153 Kan. 68, 74, 109 P.2d 126; Rathbone v. St. Louis S.F. Ry. Co., 113 Kan. 257, 214 P. 109. But in the view we now take of the case it becomes unnecessary[634] for us to determine whether the circumstances were such that the guests were guilty of contributory negligence within the meaning of the law of Kansas. Compare: Darrington v. Campbell,150 Kan. 407, 94 P.2d 305; Packer v. Fairmount Creamery Co.,158 Kan. 580, 149 P.2d 629 and Curtiss v. Fahle,157 Kan. 226, 139 P.2d 827. By eliminating this question it also becomes unnecessary for us to construe the Buchhein and Christie cases and determine whether they in fact impute the host's negligence to the guest or whether, in fact, what they say relating to this subject is mere dicta. Buchhein v. Atchison, T. S.F. Ry. Co., 147 Kan. 192, 195-196, 75 P.2d 280; Christie v. Atchison, T. S.F. Ry. Co., 154 Kan. 713, 716, 121 P.2d 208; Trower v. M.-K.-T.R. Co., 353 Mo. l.c. 764, 184 S.W.2d l.c. 431-432. Furthermore, in the view we take of the case, it is not necessary to decide whether, under the law of Kansas, there may be more than one proximate cause of an injury. McRae v. Missouri Pac. R. Co., 116 Kan. 99, 225 P. 1032.
[2] Two of the essential elements — absolutes — of the last chance doctrine of Kansas are (1) that the plaintiff must have been in helpless or inextricable peril and (2) thereafter the defendant could have avoided the injury complained of. Tarter v. M.-K.-T. Ry. Co., 119 Kan. 365, 239 P. 754. "This doctrine can be invoked in negligence cases only where the party relying upon it has by his own prior negligence gotten himself into a predicament from which his subsequent diligence will not avail to extricate him without injury or damage *Page 651 through the act or delict of another party, but where such other party has a fair opportunity — a last clear chance — to avert or minimize the accident, injury or damage, by the exercise of reasonable diligence after the negligence of the first party has ceased." Jamison v. Atchison, T. S.F. Ry. Co., 122 Kan. 305, 308, 252 P. 472, 473; State ex rel. Thompson v. Shain, supra. The evidence is construed most favorably to the plaintiff, but even so the presence of these two elements must be demonstrated and made to appear, in guest cases as well as in actions in which the host or driver is plaintiff. Anthony v. Costello Motor Co.,149 Kan. 690, 692, 88 P.2d 1025; Trower v. M.-K.-T. Ry. Co., supra. And, "The burden of proof is on the plaintiff as to this issue." Bollinger v. St. Louis-S.F. Ry. Co., 334 Mo. 720, 732,67 S.W.2d 985, 991.
[3] In this case Nadine said that as the automobile was stopped about twenty-five feet from the nearest rail she could not see south down the track because of the station. As the automobile moved forward both she and her husband were looking to the south but she could not see beyond him until he would lean forward in the seat. Finally, when the front of the automobile was "just about over the first rail" they both leaned forward "and he screamed, then he braced himself in the car and leaned back and braced himself and I looked up" and the car stopped in between the rails. It was then, for the first time, she saw the train, the front of it, in her "best estimate" and it was "in front of the station or about there." Admittedly the station is less than one hundred feet from the crossing and the train at seventy miles an hour was traveling 102 feet a second. So when Nadine, first saw the train in front of the station and while the wheels of the car were about over the first rail it was not possible thereafter for the speed of the train to have been slackened and the collision avoided and consequently, under her evidence, there could not have been a cause of action under the last chance doctrine of Kansas. Caylor v. St. Louis-S.F. Ry. Co.,332 Mo. 851, 859, 59 S.W.2d 661, 664.
[4] Nor does she rely upon what she saw and the circumstances as they existed at the time she first saw the train as establishing the inextricable peril of herself and her husband and the ability of the railroad thereafter to slacken the speed of the train and avoid the injury. She relies upon the circumstances as they appeared from the viewpoint of Mary Louise and as she detailed them. And Mary Louise said that as the automobile moved forward towards the track, at a speed of five or six miles an hour, she was looking south down the track. Her view down the track was first obstructed by the station, then by the bay window [635] on the front of the station and then by the water tank which was 318 feet from the crossing. When it was first possible for her to see down the track, beyond the water tank, "The front bumper was just over the first rail of the first track." *Page 652 Pat screamed and "the bumper and right wheel of the car was right over the first . . . rail, and I saw this engine coming . . . I would say about 100 or little over 100 feet south of the water tank. . . . I slammed on my brakes the minute I saw the passenger train and heard him scream, and to the best of my recollection, I put the car in reverse and tried to back off the rail. . . . to the best of my memory, I started to back off." She said that when the car stopped the front wheels "would be about in the center of this west track."
Upon this evidence and the testimony of her expert witnesses the plaintiff hypothesized the railroad's liability upon "the single claim that when said automobile in which plaintiff was riding came to a stop upon the railroad track of defendant, . . . plaintiff was in a position of helpless and inescapable peril of being injured . . . and the defendant's engineer . . . could have . . . known thereof, in time thereafter, . . . to have slowed said train . . . so as to have enabled the driver of said automobile to have driven said automobile to a position of safety off of said track . . ."
[5] But whether the situation is seized upon and the plaintiff's case viewed from the time the automobile came to a stop upon the track, or whether it is viewed from the time Mary Louise first saw the train with the bumper and right wheel of the car over the first rail, the circumstances do not permit a finding of the two essential elements of the plaintiff's and her husband's inextricable peril and the defendant's ability thereafter to slacken the speed of the train and thus avoid the collision. As we have pointed out, it is not possible to seize upon and use the circumstances as Nadine saw them for it was then too late for the speed of the train to have been effectively slackened. Therefore she seizes and relies upon the circumstances as they were made to appear from Mary Louise's viewpoint to establish both the peril and the railroad's last clear chance to avoid the collision. When Mary Louise first saw the train it was then 418 feet from the crossing "or little over 100 feet south of the water tank." Assuming that the train was at or near the water tank, 318 feet away, by the time and when the automobile "came to a stop upon the railroad track" her proof precisely shows and there is no other evidence or circumstance upon the subject that the automobile could be backed clear of the track in from "a second and a half to a second and three-quarters, not over two seconds." And Mary Louise said that she "started to back off" and plaintiff's counsel now insist that she was backing off. The train traveling seventy miles an hour (102 feet a second) was then something over three seconds away from the crossing. Therefore, seizing upon the situation at the time when the automobile was stopped upon the track, the circumstances do not show the plaintiff and her husband then in helpless or inextricable peril for by her positive evidence there was a margin of safety or a period of time in which the *Page 653 automobile, upon which she relies as the means to move them off the track, could have been and was backing to safety. As in the companion case, her hypothetical questions required an emergency, application of the train's brakes 300 or 350 feet from the crossing or at seventy miles an hour (102 feet a second) two and ninety-seven hundredths or three to three and one-half seconds from the crossing. After the expiration of a second and a half (in which to place them in inextricable peril) it is then too late for the train to slacken its speed and avoid the collision for by that time it is less than two seconds away. The circumstances are no more favorable if seized upon and viewed from the time Mary Louise first saw the train for it was then over 418 feet from the crossing and the automobile and its occupants could not be in peril, under their evidence, until the expiration of a second and a half or two seconds and again, applying the calculations of the plaintiff's experts, it would be too late. Under the circumstances relied upon her case clearly falls within the law and the facts as stated in Bollinger v. St. Louis [636] S.F. Ry. Co., 334 Mo. 720, 727-732,67 S.W.2d 985, 989-991.
This is not to deprive the plaintiff of the right to have the jury draw contrary inferences or find the facts from reasoning upon the evidence (Thayer, Preliminary Treatise On Evidence, pp. 193-194) because here there is no room for inferences; the plaintiff's evidence specifically and precisely shows the situation in time and space and there is no other evidence upon which the jury may reason. The case is then comparable to Dearing v. Wichita R. L. Co., 130 Kan. 142, 285 P. 621 and Jamison v. Atchison, T. S.F. Ry. Co., 122 Kan. 305, 252 P. 472, even though they are not guest cases. Eubank v. K.C. Ter. Ry. Co.,346 Mo. 436, 142 S.W.2d 19; Fitzgerald v. Thompson (Mo. App.),184 S.W.2d 198 and Metropolitan Street Ry. Co. v. Arnold,67 Kan. 260, 72 P. 857, though not guest cases, present situations in which the jury may reason upon the circumstances presented and find the plaintiffs in inextricable peril and the ability of the defendants thereafter to avoid the injury within the meaning of the law of Kansas. And the facts, as the jury could find them, in the Trower cases, in our opinion, demonstrate a typical last clear chance guest case with respect to these essential elements. But here the plaintiff specifically and definitely proves every fact and circumstance relied upon and however favorably construed they do not permit an inference or finding of inescapable peril and subsequently the railroad's ability to avoid the injuries complained of. The evidence in this case demonstrates the absence of these two essential elements just as the almost identical circumstances in the companion case (353 Mo. 697,183 S.W.2d 829) demonstrated that Mary Louise was guilty of concurrent and contributory negligence under the last chance doctrine of Kansas.
The judgment, therefore, is reversed. *Page 654