* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 786, n. 76; 4CJ, p. 750, n. 96; Death, 17CJ, p. 1179, n. 83, 85, 86, 87; p. 1181, n. 98; p. 1285, n. 33; Highways, 29CJ, p. 379, n. 61; Pleading, 31Cyc, p. 723, n. 92; Railroads, 33Cyc, p. 1099, n. 2; p. 1129, n. 68. This cause is based on the fourth subdivision of section 4217, Revised Statutes 1919. The petition was filed in Christian county but the venue was changed to Laclede county, where trial was had to a jury resulting in a verdict and judgment for plaintiff in the sum of $2000. Motion for a new trial was filed and overruled and this appeal followed. *Page 1252
Plaintiff brought this action as the administrator of the estate of Louis W. Hendrix, an infant about one year old at the time of its death which was caused by a crossing collision on May 11, 1924. It is alleged that decedent was struck and killed on a public crossing by one of defendant's passenger trains. The negligence charged is the failure to give the statutory signals, exceedingly high and dangerous rate of speed, and a breach of the humanitarian rule. The answer put in issue the grounds of negligence alleged, and denied that the crossing was a public crossing, and challenged plaintiff's right to prosecute the cause. The cause went to the jury on the alleged failure to give the statutory signals and on the humanitarian doctrine.
Error is assigned on the refusal of a demurrer at the close of the case and on the instructions given for plaintiff.
The demurrer raised three questions, viz.: (1) That the petition does not allege that anyone survived who is competent to take under the statute of descent; (2) that there was no evidence to show that the administrator has the right to maintain this suit; and (3) that there was no substantial evidence adduced to show that defendant was guilty of any negligence alleged.
It is contended that the petition fails to show whether or not anyone, entitled to take under the statute of descent (section 303, Revised Statutes 1919), survived the deceased, and that, therefore, the petition utterly failed to state a cause of action. The sufficiency of the petition was not challenged by demurrer, but if no cause of action is stated, then the point may be raised at any time. [Elliott v. Water, Light Transit Co., 245 S.W. (Mo. App.) 568.] The petition alleges that the father and mother of the deceased and the deceased were all killed in the same collision and at the same time. Following this allegation it is alleged that there was neither father, mother, minor child or minor children, natural born or adopted, etc. But there is no allegation that anyone survived competent to take under the statute of descent. Absent such an allegation the petition states no cause of action. [Titus v. Delano et al., 210 S.W. (Mo. App.) 44.] Plaintiff contends, however, that the defect was cured by the admission of evidence, without objection, showing that there were survivors competent to take under the statute of descent. There was such evidence admitted without objection, and such being the case the petition will be considered as amended to conform to the evidence. [Treece State Bank v. Wade et al., 283 S.W. (Mo. App.) 714, and cases there cited; Missouri State Highway Commission ex rel. v. Coopers Construction Co., 286 S.W. (Mo. App.) 736.]
The second question raised by the demurrer is upon this theory. It is alleged that the deceased and the father and mother were all killed at the same time. If either the father or the mother or both survived the deceased then the cause of action for the death of the *Page 1253 deceased vested in the survivor or survivors and could not, therefore, be maintained by the administrator of deceased. The evidence shows that the father and mother and the deceased were all killed by the same collision, but it does not show that they all perished at the same instant, nor that the deceased survived the father and the mother. Defendant contends that it devolved upon plaintiff to prove that the father and mother and deceased perished at the same time or that deceased survived the father and mother; and that under the facts here the presumption that they all three perished at the same time should not be indulged. Where two or more persons perish in a common disaster there is no presumption that one survived the others or that they all perished at the same time. The burden of proving that one survived the others, or that all perished at the same time, is upon the one who asserts such to be the fact. [United States Casualty Company v. Kacer, 169 Mo. 301, 69 S.W. 370.] Since there is no presumption that the deceased survived the father and mother and no presumption that they perished at the same time the issuable fact, defendant contends, should be established by evidence, unless the circumstances be such that no evidence on such issue can be produced. When two or more perish in a common disaster and no evidence can be produced as to whether one survived the other or others or all perished at the same time then defendant concedes that the presumption that they all perished at the same time may be invoked. But where evidence can be produced defendant says that the burden is on the one asserting the fact to establish it by evidence. Conceding, for the question in hand, that such is the law, we think that there are in the record sufficient facts and circumstances to support a finding that deceased and the father and mother perished at the same time. The automobile was traveling south. The railroad ran approximately east and west. The train that struck the automobile approached from the west and struck the automobile, a one seated Ford, when the front wheels were about three feet south of the south rail, and at the same time of the impact the train was running at fifty or fifty-five miles per hour. The automobile according to one witness was knocked fifty feet east and thirty feet south of the crossing. The train backed up and put the dead bodies abroad and carried them to the next station, but no one testified that all were dead or that life yet lingered in one or more when first seen immediately after the impact when the train backed up. Neither is it shown how far from the crossing or where the bodies were when the train backed up. But this terrific impact and the location of the automobile and the fact that the "bodies" were loaded on the train as soon as it backed up we think is substantial evidence on the issue that the deceased and the father and mother perished simultaneously. [Aley v. Railroad,211 Mo. 460, l.c. 480, 111 S.W. 102.] *Page 1254
The third question raised by the demurrer is that there was no substantial evidence tending to show that defendant was negligent in the manner charged. The cause went to the jury on the alleged failure to give the statutory signals and on the humanitarian doctrine and we shall consider only these. Much of plaintiff's evidence on the issue of the statutory signals is of a negative character, and defendant's evidence is of a positive character and tends to show the signals were given. But when measured by a demurrer there is no escape from the conclusion that plaintiff's evidence tends to show that the statutory signals were not given.
Was there any substantial evidence to support the last-chance theory? As stated the railroad ran approximately east and west and the road upon which the automobile was traveling ran north and south. The train approached the crossing from the west at fifty or fifty-five miles per hour and the automobile approached from the north. There is no evidence as to the rate of speed the automobile approached. There were gates at the crossing, but whether the north side gate was closed or open when the automobile reached it does not appear. From the west a train approaches this crossing through a cut on a right hand curve, and the cut terminates about 150 or 200 feet west of the crossing, and the track approximates a straight track from about 200 feet west of the crossing to the crossing. A person standing on the railroad track at the center of the crossing can see a railroad engine from 700 to 800 feet west, but it is not shown how far north of the center of the crossing an automobile on the roadway could be seen by the fireman or engineer on an engine when 700 or 800 feet west of the crossing. The fireman testified that he saw the automobile when the engine was about 300 feet west of the crossing, but there is no evidence as to the probable range of vision of the fireman or engineer north of the crossing from the point 800 feet west of the crossing up to the point where the fireman saw the automobile. When the fireman first saw the automobile he says that it was twelve or fourteen feet from the track, "and it was standing practically still; the wheels were barely turning over." The fireman also testified that when the engine was in about 100 feet of the crossing the automobile "shot up to start across the railroad." The engineer did not see the automobile until the moment of the impact. The fireman gave no notice of the automobile to the engineer and the speed of the train was not slackened until after the impact. There is no evidence in the record except that of the fireman as to the position and approach of the automobile. Plaintiff supports the submission of the humanitarian rule on the evidence that one standing on the crossing can see an engine approaching from the west when it reaches a point 800 feet west of the crossing. Learned counsel for plaintiff in their brief say that the engineer had nine seconds "from the time that he could have seen the perilous *Page 1255 position of these people on the crossing to slow down this train." There is no evidence that the automobile was on the crossing or in the danger zone when the engine was 800 feet west. There is no evidence as to where the automobile was at that time. According to the only evidence on the question when the automobile was first seen the engine of the train was about 300 feet west of the crossing, and at that time the automobile was twelve or fourteen feet north of the track and was practically still. If such was the situation, and there is no evidence to the contrary, then there was no occasion to specially act to save the occupants of the automobile, because they were in no danger. If the automobile suddenly "shot up" when the engine of the train was about 100 feet west of the crossing, and there is no evidence to the contrary, then there was nothing that could have been done by the fireman or engineer to avert the disaster. There is no reasonable analysis of this record that will give any support to the submission of the humanitarian rule. But on the issues as made by the pleadings and the general demurrer was properly refused.
Plaintiff's Instruction 1 and 2 are challenged. Instruction No. 2 submitted the cause on the humanitarian doctrine. What we have already ruled disposes of this assignment. Instruction No. 1 is challenged on the ground that it erroneously submitted the question as to whether the crossing was a public crossing, and because it permitted a recovery without a finding that deceased left surviving some person competent to take under the statute of descent. Since the cause is to be remanded it will not be necessary to rule on the last-mentioned complaint against the instruction. If a retrial is had such criticism may be avoided.
Defendant strenuously contends that plaintiff failed to show that the crossing in question was a public crossing. In 1894 the county court of Christian county made an order establishing the road in question as a public road, and it has since that time been constantly used by the public in general. In addition to the order of the court establishing the road as a public road plaintiff introduced in evidence right of way deeds from all the landowners concerned, as we understand the record, except the defendant. The road as established by the county court extended from the south to the north and terminated fifty yards north of the crossing where it connected with the Billings and Springfield public road. The road in question was worked some years by the road overseer, but not every year perhaps. Defendant kept up the crossing and at the time of the disaster giving rise to this cause there were four good crossing planks in the crossing and it was packed with chat or gravel. The track at this crossing is on a dump and defendant constructed approaches on each side, but did not put in wing fences or cattle guards. Gates were first put in about 1905, but did not remain long, and then were maintained only at intervals *Page 1256 for several years, but had remained for eight or ten years prior to the collision which resulted in the death of deceased. But notwithstanding the gates the road was used constantly by the public and was maintained by the public, and defendant not only acquiesced in this use by the public generally, but invited such use by constructing and maintaining the crossing and the approaches.
Defendant contends that the order of the county court establishing the road as a public road is void and without effect because it does not recite the giving of notice of petition or application for the establishment of the road as was required by section 7797, Revised Statutes 1889. This section has come down without substantial change and is now section 10626, Revised Statutes 1919. But we do not deem it necessary to rule the point made. A road may be given the status of a public road without having been so established by petition and court order. Section 10635, Revised Statutes 1010, among other things provides that all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads. Such was in effect the statute law in 1894 when the public began the use of the road here in question. [See Sec. 7847, R.S. 1889.] And it is not absolutely necessary that public money or labor be expended upon the road each and every year for such ten-year period. It is sufficient if the road is kept in substantial repair. [State v. Kitchen, 205 Mo. App. 31,216 S.W. 981.] Under the facts here we do not think the court committed error in submitting to the jury the question of the public character of the crossing. [Sikes v. Railroad,127 Mo. App. 326, l.c. 334, 105 S.W. 700; Dow v. Railroad,116 Mo. App. 555, 92 S.W. 744; State v. Kitchen, supra.]
The judgment should be reversed and the cause remanded and it is so ordered. Cox, P.J., and Bailey, J., concur.