Pearrow v. Thompson

• Citation: 121 S.W.2d 811,343 Mo. 490
• Decision Date: 19 November 1938
• Docket Number: 35508
• Parties: Tarlton Pearrow v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

121 S.W.2d 811

343 Mo. 490

Tarlton Pearrow v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant

No. 35508

Supreme Court of Missouri

November 19, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

Thos J. Cole for appellant.

(1) The court erred in holding the instruction on contributory negligence should not have been given. (a) It was in proper form, because the only possible contributory negligence of which plaintiff could have been guilty was the failure to look before he stepped in front of the cars. Therefore the general instruction on contributory negligence was sufficient. Murphy v. Duerbeck, 19 S.W.2d 1043; Riley v. Independence, 258 Mo. 684. (b) The main Instruction 1, given at the request of plaintiff, submitted contributory negligence in a general way, so if error exists in defendant's instruction it is common or invited error and not reversible error. Monroe v. C. & A., 280 Mo 489; Kincaid v. Birt, 29 S.W.2d 98. (2) The court erred in sustaining the motion for new trial on the ground of error in the other instructions given at the request of the defendant. (3) The court erred in sustaining plaintiff's motion for new trial because plaintiff's own evidence shows he was guilty of contributory negligence as a matter of law. State ex rel. K. C. Southern Ry. Co. v. Shain, 105 S.W.2d 915.

C. O. Inman for respondent.

(1) Instruction 5 given at the request of the defendant was erroneous and prejudicial for the following reasons: (a) The instruction hypothesizes no facts which would constitute negligence on the part of plaintiff, but gave the jury a roving commission to go outside of the issues and to convict the plaintiff of any negligence which the jury might concoct. Schide v. Gottschick, 43 S.W.2d 779; Brashear v. Mo. P. & L. Co., 49 S.W.2d 639; Clason v. Lentz, 61 S.W.2d 730; Harrington v. Dunham, 202 S.W. 1066; Oates v. Met. St. Ry. Co., 168 Mo. 535; Head v. Leming Lbr. Co., 281 S.W. 441; Watts v. Moussette, 85 S.W.2d 491; Anderson v. Northrop, 96 S.W.2d 526. (b) It does not require the jury to find that negligence of plaintiff directly or proximately caused his injuries. Zander v. Transit Co., 206 Mo. 464; Connole v. E. St. L. & S. Ry. Co., 102 S.W.2d 581; Tappmeyer v. Rycoff, 45 S.W.2d 890; Barrett v. Town of Canton, 93 S.W.2d 927; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; Roberson v. Loose-Wiles Biscuit Co., 285 S.W. 127; Howard v. Scarritt Estate Co., 267 Mo. 398; Moore v. Rapid Transit Co., 126 Mo. 265; Oates v. Met. St. Ry. Co., 168 Mo. 535; Monroe v. C. & A. Ry. Co., 280 Mo. 483; Nordman v. Hohn Bakery Co., 298 S.W. 1037; Hires v. Letts Melick Gro. Co., 296 S.W. 408. (2) Instruction 6 given at the request of the defendant was erroneous for the following reasons: (a) In directing a verdict for the defendant if the jury were unable to determine with reasonable certainty whether or not the defendant was guilty of negligence it required a higher degree of proof than the law requires in civil cases. Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691; Payne v. Reed, 332 Mo. 343, 59 S.W.2d 47; Aly v. Term. Railroad Assn., 336 Mo. 340, 78 S.W.2d 851; Sheehan v. Term. Railroad Assn., 336 Mo. 709, 81 S.W.2d 305; Collins v. Beckman, 79 S.W.2d 1052; Werminghaus v. Eberle, 81 S.W.2d 607; Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621; Koebel v. Tieman Coal Co., 337 Mo. 561, 85 S.W.2d 519; Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W.2d 63; Timper v. Mo. Pac. Ry. Co., 98 S.W.2d 548; Finn v. United Rys. Co., 267 S.W. 416; Davidson v. St. L.-S. F. Ry. Co., 207 S.W. 277. (b) It is improper to tell the jury that they must find for the defendant if they are unable to determine an issue, because it is the jury's duty to resolve conflicts and determine issues submitted. (3) Instruction 7 given at the request of the defendant ignored the fact that the burden of establishing contributory negligence is on the defendant because it directed a verdict for defendant if the evidence on the contentions of the parties was evenly balanced. Manar v. Taetz, 109 S.W.2d 721; Chaar v. McLoon, 304 Mo. 250, 263 S.W. 177; Szuch v. Ni Sun Lines, 332 Mo. 476, 58 S.W.2d 473; Clark v. Atchison, etc., Bridge Co., 324 Mo. 565, 24 S.W.2d 143; Brewer v. Silverstein, 64 S.W.2d 291; Raymen v. Galvin, 229 S.W. 747; Barr v. Mo. Pac. Ry. Co., 37 S.W.2d 927. (4) Plaintiff was not negligent as a matter of law. He had the right to assume that the cars were secured. One is not obliged to look for a danger which he has no cause to anticipate and it is not always the duty of a traveler to look before crossing a spur track. Baker v. Ry. Co., 122 Mo. 545; Crawford v. Stockyards Co., 215 Mo. 394; Cento v. Security Bldg. Co., 99 S.W.2d 1; Essenbreis v. Elliott Dept. Store Co., 37 S.W.2d 458; Phillips Petroleum Co. v. Miller, 84 F.2d 148; Mo. Pac. Ry. Co. v. Havens, 164 Ark. 108, 268 S.W. 31; Armour & Co. v. Rose, 183 Ark. 422, 36 S.W.2d 70; Coca Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S.W. 856; Ragland v. Snotzmeier, 186 Ark. 781, 55 S.W.2d 923; Blakley & Son v. Jones, 186 Ark. 1169, 57 S.W.2d 1032.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action for $ 10,000 damages for personal injuries. The jury found for defendant. Thereafter, the court sustained plaintiff's motion for a new trial on the ground that certain instructions, given at the request of defendant, "were erroneous, misleading and prejudicial to the plaintiff." Defendant has appealed from this order.

Defendant contends that any error in instructions is immaterial because plaintiff was guilty of contributory negligence as a matter of law and, therefore, defendant was entitled to a directed verdict. We state the facts shown by the evidence, considered most favorably to plaintiff's case, for the purpose of ruling this contention. Plaintiff testified that he was struck by a string of five cars while he was crossing defendant's switch track at a public road crossing at Deerfield, Arkansas. Plaintiff's home was in Memphis, Tennessee. He was employed there as a switchman on the Illinois Central, but owned farm land at Deerfield. In 1933, he was unable to get planting begun until July because of high water. He had three tenants (James Steelman, Shelby Steelman, and A. D. Smallwood) living on his farm and farming on shares. Plaintiff stayed on the farm that year during July and August, and farmed some of the land himself. Deerfield had no station and only one switch track. The main line track ran north and south and was graded seven or eight feet above the surrounding country. The switch track, which was used principally for loading logs, ran south from the main line track down the embankment ("comes down pretty steep") to the lower level of the fields, and ended without any connection at the south with the main line track. There was a public road running east and west which crossed the main line track embankment south of the switch and crossed the switch track at a point south of the steepest part of its grade. Just south of the point where the road crossed the switch track, there was a loading boom for loading logs into cars. This was on plaintiff's land and he was paid one dollar per car by the logging contractor for its use. The logs were loaded into open coal cars. Every morning, except Sunday, a local freight train would pick up loaded cars and set out empty cars north of the road crossing. As these were needed at the loading boom, they could be uncoupled and allowed to run down by force of gravity upon releasing the brakes.

Plaintiff claimed that he was injured about 5 o'clock on Saturday afternoon, August 19, 1933, by a string of five of these empty coal cars getting loose and running down the grade of the switch track, striking and dragging him, while he was crossing at the public road crossing carrying a small harrow, weighing 40 or 50 pounds. Plaintiff's corn had been laid by that morning and he put in the afternoon gardening on the east side of the tracks where he lived. Plaintiff decided that, before he quit for the day, he would do some work in a small patch of sweet potatoes on the east side of the tracks. He went across to the west side of the railroad to borrow Shelby Steelman's harrow and mule for this purpose. Plaintiff first hitched the mule to the harrow and intended to have it dragged across the track, "because it was easier to take it over with the mule than it was to carry it." Steelman objected, saying: "You are liable to catch the teeth in the track and tear it up." Plaintiff then decided that he would carry the harrow on his back and Steelman agreed to lead the mule to the potato patch, about 150 yards away. Plaintiff unhitched the mule, got the harrow on his back with the frame across his shoulders, teeth up, and began carrying it stooped over with his head down. He said that he knew that there was no train due, but that he stopped at the main line track and made certain that there was no train or engine in sight coming in either direction before he crossed it. He then went on between the two tracks and onto the switch track crossing without looking again. Just as he was within a step or two of the switch track Steelman, walking behind him with the mule, yelled, "Look out!" Plaintiff turned to look toward Steelman and was struck by the cars running down the grade. His clothing was caught by a journal box dragging him into a pile of dirt, where his clothing was torn loose, and the cars went on, running into a partly loaded car under the loading boom. Plaintiff's evidence was that an examination of the cars afterwards showed that all the brake chains were hanging down loose, indicating that none of the hand brakes had been set.

Plaintiff testified that...