Gorman v. Franklin
| Decision Date | 01 April 1938 |
| Docket Number | 34432 |
| Citation | 117 S.W.2d 289 |
| Parties | GORMAN v. FRANKLIN et al |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled May 26, 1938.
Homer Hall, of St. Louis, and Clark, Boggs, Peterson & Becker, of Columbia, for appellants.
Ruby Hulen, of Columbia, and Mosman, Rogers, Bell & Buzard, of Kansas City, for respondent.
BRADLEY, Commissioner.
This cause has been reassigned. It is an action, under section 3262, R.S.1929, Mo.St.Ann. § 3262, p. 3353, by the widow of John Gorman, who, while riding as a guest in an automobile, was killed at a crossing. Verdict and judgment for $ 10,000 went for plaintiff. Motion for a new trial was overruled, and defendants appealed.
The cause is a companion case to Kick v. Franklin et al., 117 S.W.2d 284, handed down concurrently herewith. In the present case the engineer, Buhalt, was made a party defendant, while in the Kick Case he was not made a party. Plaintiff alleged failure to give reasonably safe and timely warning of the approach of the train to the crossing, and other specific acts of primary negligence. Also, plaintiff alleged a breach of the humanitarian rule, as follows:
'Plaintiff further alleges as an additional and separate ground of negligence and recovery against defendants, that as said train approached said crossing, plaintiff's said deceased husband and the driver of said automobile were in imminent and inescapable peril therefrom, and defendants knew or by the use of due care would have known thereof in time thereafter by the use of the means at hand and with safety to said train and those upon it to have stopped it or slackened the speed thereof or by alarm blasts of the whistle warned plaintiff's deceased husband of the proximity of the danger thereof in time thereafter to have prevented plaintiff's husband from being killed, all of which defendants negligently failed to do.
'Plaintiff further alleges as an additional and separate ground of negligence and recovery against defendants that after defendants saw and observed plaintiff's deceased husband and the driver of said automobile in a position of imminent and inescapable peril, defendants, by the use of due care and the means at hand and with safety to said train and those upon it, could have slackened the speed of said train and thereby have allowed and permitted plaintiff's said deceased husband to get off said tracks and escape from said approaching train, and thereby have prevented her said husband and the automobile in which he was riding from being struck by said train and plaintiff's husband killed, but defendants negligently failed to do so.'
The receivers answered by a general denial, a plea of contributory negligence, and alleged that the negligence of Kick (driver of the car) was imputable to deceased, John Gorman. Engineer Buhalt answered separately by a general denial and a plea of contributory negligence. Plaintiff filed reply, a general denial, to the answer of the receivers, but did not file reply to the answer of the engineer, but the cause was tried as though a general denial were filed.
Error is assigned (1) on the refusal of a demurrer to the evidence at the close of the whole case; (2) on each of the five instructions given for plaintiff; and (3) on the admission and exclusion of evidence.
Plaintiff went to the jury on primary negligence and on the humanitarian doctrine, therefore, what may be termed the demurrer to the evidence, raises two questions: Was plaintiff's husband guilty of contributory negligence as a matter of law? and, Was there any substantial evidence to support submission on the humanitarian rule as pleaded?
Primary negligence was submitted in plaintiff's instruction No. 1 as follows: 'The court instructs the jury that if you find and believe from the evidence in this case that on the 28th day of September 1932, the plaintiff was the lawful wife of John Gorman, and that at said time the said John Gorman was riding as a guest or passenger in an automobile then driven by one Kick, and if you further find that said Kick was in the sole and exclusive control and management of said automobile, if so, and that John Gorman had no control or right to control said automobile, if so, and that said John Gorman was at all times in the exercise of ordinary care for his own safety, if so, and that said automobile was struck at the crossing mentioned in evidence by a passenger train belonging to the Wabash Railway Company and operated by the defendants, Franklin and Nicodemus, and that defendant Buhalt, was the engineer operating said train, if so, and if you further find that the striking of said automobile by said train, if so, caused said John Gorman to be injured and killed, and if you further find that the bell was not ringing and the whistle was not sounded as the train approached the crossing, and if you further find that in the exercise of reasonable prudence the said defendants should have anticipated that persons were likely to pass over said crossing, if so, and that the said crossing, at and long prior thereto, with the knowledge and acquiescence of defendants, was much used by the public in traveling over same, if so, and if you further find that it was negligence on the part of the defendants to fail to give warning of the approach of said train to said crossing (if they did so fail), and if you find from the evidence that as the direct result of the failure, if any, on the part of the defendants to give warning of the approach of said train to said crossing (if defendants did so fail), the automobile in which said John Gorman was riding was struck and he was killed then your verdict should be in favor of the plaintiff and against the defendants.'
The humanitarian theory was submitted in plaintiff's instruction No. 2, as follows: '* * * and if you further find that the defendants should, in the exercise of reasonable care, have anticipated and known that persons were likely to be on or crossing over said crossing, and if you further find that the said automobile was driven on to said crossing and on the tracks of the Wabash Railway Company and was coming into and was in a position of peril and danger of being struck by the train mentioned in evidence, if so, and if you further find that the said John Gorman was thereby in a place or position of inescapable danger, if so, or was unaware of such danger, if any, at a time when the train was so far distant from said crossing that the defendant Buhalt, as engineer thereof, saw or by the exercise of ordinary care on his part, should or could have seen said peril, if any, and said automobile, if so, in time by the exercise of ordinary care on his part and with the means and appliances at hand and with safety to the persons on said train, if so, to thereafter have slackened or slowed down the speed of said train, if so, and if you further find from the evidence that the defendant Buhalt, could thereafter have so slackened or slowed down the speed of said train by the exercise of ordinary care on his part and with the means and appliances at hand and with safety to the persons in said train, if so, sufficiently, if so, to have thereby avoided colliding with the automobile in which said John Gorman was riding, if so, and if you further find from the evidence that the defendant Buhalt, was negligent in failing to slacken or slow down the speed of said train, if he did so fail, and that such negligence, if any, on his part directly caused said train to strike said automobile and to injure and kill said John Gorman, if so, then your verdict should be in favor of the plaintiff and against all of the defendants, and this is true even though you should find and believe from the evidence that the said John Gorman or Frank Kick, or both of them, were guilty of negligence in getting in to peril, if any, at said time and place.'
Was plaintiff's husband guilty of contributory negligence as a matter of law? The collision between the car in which deceased was riding and the train occurred about 6:30 a.m., September 28, 1932. Frank Kick, who was plaintiff in the Kick Case, and who owned and was driving the car, was a witness for plaintiff. He testified that both he and Gorman, the deceased, were working for Woods Bros., who were doing revetment work on the Missouri river, about a mile west of Missouri City, where both he and Gorman resided; and that he invited Gorman to ride with him that morning, and that Gorman sat with him in the front seat and to his right. He further testified that Gorman was awake; had good eyesight and hearing; that Gorman knew the railroad was there; that Gorman did not say anything about the railroad track, and that he did not say anything about the track to Gorman; that he stopped the car 10 or 15 feet north of the track and looked both east and west and listened for a train; that Gorman, when the car was stopped, looked west, but that when he (Kick) looked east, he could not say what Gorman was doing. Otherwise, the evidence of Kick was substantially the same as his evidence in his own case (which was tried subsequently to the present case), and we make reference to the Kick Case for the further evidence of Kick, pertinent to the present case, except as hereinafter appears.
Defendants alleged that the negligence of Kick was imputable to Gorman but in the brief they say that they make no such claim. On the question of contributory negligence we have this situation. Gorman, in possession of all his faculties, sat beside the driver of the car while stopped 10 or 15 feet north of the track; he knew the track was there, and it is shown that he looked west. The car, after starting up, moved slowly, about 3 miles per hour in low (Kick said about 3 miles in the present case, while in his own...
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