I respectfully dissent. Sketchily reviewing the facts stated in the principal opinion, the undisputed evidence showed that the railroad double tracks bore northeasterly and intersected the east and west public highway at an acute angle of 61 degrees on the south side, with the railroad depot inside that angle. The depot and its bay window, and a water tank further south, obstructed an eastbound motorist's view of a northbound train approaching from beyond those structures, until his line of vision had cleared them. And even then, to see the train the motorist would have to look back southwest over his right shoulder. The plaintiff's husband was a large man, 6 feet tall and weighing 230 pounds. He was seated on the right or south side of the automobile, nearest the train. The driver was on the left or north side of the seat. And the plaintiff was between the two, with her view southward obstructed by her husband unless he would lean forward. Both the plaintiff and her husband were riding as guests in the automobile.
The undisputed evidence also shows the engineer of the oncoming train did not see the automobile at all, and the fireman did not see it until the locomotive was 250 feet from the highway crossing, with the result that the train continued at an undiminished speed of 70 miles per hour (102 feet per second) until after the collision occurred. The plaintiff's evidence was that the automobile had previously stopped west of the tracks awaiting the passage of a southbound freight train, and then had proceeded eastward at 5 or 6 miles per hour until the front wheels of the automobile were over the first rail of the track on which the train was bearing down. During that time the plaintiff and her husband had been looking to the south. Her husband saw the train first, screamed and leaned back and braced himself. Because of her obstructed view the plaintiff did not see it until it was about opposite the depot less [637] than 100 feet away. The driver of the automobile saw the train just after the husband screamed. She slammed on the brakes, and to the best of her recollection started to back off the track but did not get in the clear.
The driver testified the locomotive was 100 feet or more south of the water tank when she first saw it, and it is agreed the water tank was 318 feet south of the highway crossing, thereby fixing the distance of the train at 418 feet or more. Plaintiff presented two expert witnesses, one of whom said that at the admitted speed of 70 miles per hour, or 102 feet per second, by a prompt application of the emergency brakes the speed of the train could have been reduced to 40 or 30 miles per hour in a distance of 400 feet. The other expert said *Page 655 the speed could have been reduced to 25 or 30 miles per hour in 350 to 400 feet. A third expert introduced by the plaintiff testified from experiments that the automobile could have been backed off the track into the clear in 1-½ to 2 seconds.
In deciding the case, the principal opinion properly endeavors to view the facts in the light most favorable to plaintiff, since she prevailed below and the defendant appealed, although the defendant railroad had substantial evidence to the contrary. On that theory the opinion concedes the train was 418 feet away when the driver first saw it, and assumes it was 318 feet away when the automobile came to a stop — in other words it assumes the train traveled 100 feet, which would take 1 second, after the driver saw the train and before she got the automobile stopped. Then it points to the plaintiff's evidence that the automobile could have been backed off the track into the clear in 1-½ to 2 seconds, and assumes the shorter time.
On the law, the opinion holds it unnecessary to decide three questions mooted in the briefs: (1) whether the plaintiff and her husband, as guests, were guilty of contributory negligence; (2) whether under two certain Kansas decisions1 the negligence of the driver-host may be imputed to the plaintiff guests; (3) whether under another Kansas decision2 there may be more than one proximate cause of an injury. With these questions eliminated, the opinion then proceeds to reverse the cause outright on the sole ground that the plaintiff's evidence failed to make a case for the jury under the Kansas last chance doctrine, because it wholly lacked any proof that the railroad engineer could have slowed the train enough to avert the casualtyafter the plaintiff and her husband became in helpless peril and no longer could extricate themselves.
That conclusion was reached on the factual theory stated in the second preceding paragraph, that the train was only 318 feet away when the automobile came to a stop on the track; that at 102 feet per second the train would span that distance in 2.95 to 3-½ seconds; that during the 1-½ seconds when the driver could have backed the automobile off the track the plaintiff and her husband were not in inextricable peril, and the engineer was not under any last chance duty to act until that period expired; and when the 1-½ seconds was substracted from the 2.95 to 3-½ seconds, only 2 seconds or less remained, and the locomotive was so close to the crossing that it was impossible to avert the casualty.
It seems to me the opinion errs in both its facts and reasoning. On the facts, this court has no right to assume conclusively that it took a second for the driver to slam on the brakes and stop the automobile coupe, which was traveling only 5 or 6 miles per hour with the parties *Page 656 looking for the possible approach of a train. Further, it is an obvious mathematical fact that going 102 feet per second the train would have required slightly over 4 seconds to travel the 418 feet to the crossing from the point where it was first seen by the driver, if its speed had not been checked at all. And the testimony of plaintiff's two experts was that if the emergency brakes had been applied its speed could have been retarded over one-half in that distance, and its travel time correspondingly increased [638] about 2 seconds, making the elapsed time about 6 seconds. With the 1-½ seconds self-help time deducted therefrom, 4-½ seconds would have still remained for the engineer to act. At any rate, in those circumstances what right has this court to say as a matter of law that the train could not have been slowed up enough to permit the driver to back off the track in 1-½ seconds as she was attempting to do?
[7] But the main objection is that the opinion imputes to the plaintiff the negligence of the driver of the automobile — notwithstanding it had earlier held there was no need to determine whether that could be done in Kansas under the Buchhein and Christie cases, supra.1 By necessary effect the opinion does that, because it subtracts the 1-½ seconds in which the negligent driver could have backed the automobile out of danger, from the assumed 3-½ seconds the train would have consumed in reaching the automobile, and as a matter of law exculpates the engine crew because they could not have averted the casualty in the 2 seconds remaining. In other words, the 1-½ seconds of self-help time is credited to the engine crew, and charged against the plaintiff, although the opinion had also earlier stated it was unnecessary to decide whether the plaintiff was guilty of contributory negligence and thereby conceded for the purposes of the opinion that she was not so guilty.
The foregoing reasoning excuses the engine crew's inaction throughout the 1-½ seconds of self-help time, and makes the innocent plaintiff answerable for the driver's negligent failure to act. Under the Kansas last chance doctrine that would have been proper if the doctrine of respondeat superior were applicable to the plaintiff, or if she could have but negligently failed to avert the collision until it was too late for the engine crew to do so. But neither of those premises is true. Being only a guest, the doctrine of respondeat superior did not apply to her; and under her own evidence and the assumption of the opinion she was not negligent.
It is true the Buchhein case from Kansas, supra,1 denied a plaintiff guest's recovery in an automobile-railroad crossing collision, where it was stated (italics ours): "the car was never entrapped or in a predicament from which it could not extricateitself." But in that case other parts of the decision ruled as a matter of law that the plaintiff guest had ample opportunity to warn the driver and negligently failed to do so, whereas here the principal opinion acquits the *Page 657 plaintiff and her husband of negligence for the purposes of the case. Furthermore, that decision was considered by Division 1 of this court in Trower v. M.-K.-T. Rd. Co., 353 Mo. 757, 764,184 S.W.2d 428, 432(7), and it was said the quoted language appears to have been unnecessary to a decision of the case.
It may well be conceded that the driver of the automobile in the instant case was guilty of contributory negligence, as was ruled in the companion case of Murphy v. A., T. S.F. Ry. Co.,353 Mo. 697, 183 S.W.2d 829. But as held in previous Kansas decisions such as Darrington v. Campbell, 150 Kan. 407, 408-9, 94 P.2d 305, 306, the negligence of the driver is not imputed to the guest, though the latter is required to watch and warn and otherwise take reasonable precautions for self-protection. Neither will the appellant railroad be excused because of the concurrent third party negligence of the automobile driver. Tilden v. Ash, 145 Kan. 909, 916-7, 67 P.2d 614, 618(2); Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558, 566(9).
The Christie case from Kansas cited, supra,1 was regarded as controlling in a former opinion written in this cause, which was set aside when a rehearing was granted on recommendation of its author. But I cannot see that it is even persuasive, at least under present facts. In that case, as here, the plaintiff was a guest in an automobile, which stopped on a parallel track at a railroad-highway crossing awaiting the passage of a train. While so waiting the automobile was negligently struck by another train. In sustaining a demurrer to the plaintiff's petition, disclosing the above facts, the Kansas Supreme Court held the plaintiff was guilty of "contributory" negligence barring her recovery; and that "the proximate cause of the accident" was the negligence of the driver of the automobile in stopping on the parallel track.
[639] It was argued to this court on the former hearing of this case that the above language showed the Kansas court regarded the admitted negligence of the train operatives in colliding with the automobile as "immaterial," and meant the plaintiff's negligence contributed with the automobile driver's negligence [not the railroad's] to cause the collision. But numerous Kansas decisions have held the last chance doctrine in that State requires a showing that a negligent defendant had a reasonable opportunity to avert the casualty after theplaintiff's negligence had ceased — not the negligence of some third party. In both the Buchhein and Christie cases [marginal note 1] the Kansas Supreme Court expressly held the plaintiffs were guilty of contributory negligence as a matter of law. That is not the situation here. The principal opinion for the purposes of this appeal concedes the respondent was not guilty of contributory negligence. Certainly she was not as a matter of law.
In my opinion the statement in the Christie case that the negligence of the driver of the automobile there was "the proximate cause of the *Page 658 injury" did not mean that a non-negligent plaintiff guest would be chargeable with the negligence of the driver of an automobile in which he was riding; or that in such circumstances the concurrent negligence of the defendant would be immaterial. Neither can that conclusion be drawn from the statement in the Buchhein case that "the car was never entrapped or in a predicament from which it could not extricate itself." For these reasons I dissent.
1 Buchhein v. A., T. S.F. Ry. Co., 147 Kan. 192, 195-6, 75 P.2d 280; Christie v. A., T. S.F. Ry. Co., 154 Kan. 713, 716, 121 P.2d 208.
2 McRae v. Mo. Pac. Ry. Co., 116 Kan. 99, 225 P. 1032.