148 S.W. 406 (Mo.App. 1912), Davidson v. St. Louis & San Francisco Railroad Company

Citation:148 S.W. 406, 164 Mo.App. 701
Opinion Judge:NIXON, P. J.
Attorney:W. F. Evans and Mann, Johnson & Todd for appellant. Edwin L. Moore for respondent.
Judge Panel:NIXON, P. J. Cox, J., concurs. Gray, J., dissents, and files separate opinion. GRAY
Case Date:June 03, 1912
Court:Court of Appeals of Missouri

Page 406

148 S.W. 406 (Mo.App. 1912)

164 Mo.App. 701

HENRY J. DAVIDSON, Respondent,



Court of Appeals of Missouri, Springfield

June 3, 1912

Appeal from Barton Circuit Court.--Hon. B. G. Thurman, Judge.


Judgment affirmed.

W. F. Evans and Mann, Johnson & Todd for appellant.

(1) The court erred in refusing to sustain defendant's requested instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case and again at the close of all the evidence in the case. Sanquinette v. Railroad, 196 Mo. 466; Porter v. Railroad, 199 Mo. 97; Walker v. Railroad, 193 Mo. 478; Mockowick v. Railroad, 196 Mo. 568; Stotler v. Railroad, 204 Mo. 619; Gumm v. Railroad, 141 Mo.App. 306; Schaub v. Railroad, 133 Mo.App. 444; Grout v. Railroad, 125 Mo.App. 552; Holwerson v. Railroad, 157 Mo. 216; Payne v. Railroad, 136 Mo. 562; Hayden v. Railroad, 124 Mo. 567; Kelsey v. Railroad, 129 Mo. 362; Jones v. Barnard, 63 Mo.App. 501; Lien v. Railroad, 79 Mo.App. 475. (2) Plaintiff's testimony is not entitled to any probative force but it is absolutely contrary to the physical facts and under such circumstances the courts have said time and time again that a court will treat as unsaid by a witness that which in the very nature of things could not be as the witness said. Kreis v. Railroad, 148 Mo. 321; Hook v. Railroad, 162 Mo. 569; McClanahan v. Railroad, 147 Mo.App. 386; Kornfield v. Supreme Lodge, 72 Mo.App. 613; May v. Crawford, 150 Mo. 504; Morris v. Kansas City, 117 Mo.App. 298; Lange v. Railroad, 151 Mo.App. 500; Mann v. Const. Co., 151 Mo.App. 586. (3) The court erred in giving plaintiff's instruction numbered 2. Harriman v. Star, 81 Mo.App. 124; Barr v. Kansas, 105 Mo. 550; Railroad v. Stock Yards Co., 120 Mo. 559; Lanrum v. Railroad, 132 Mo.App. 717; Gibler v. Railroad, 129 Mo.App. 93; Blair v. Railroad, 31 Mo.App. 224. (4) The court erred in admitting the testimony of plaintiff repecting the escape of steam and in refusing to give defendant's instruction lettered "E," seeking to withdraw all of the said testimony from the jury. Mueller v. Weitz, 56 Mo.App. 36; Gutzweiler's Admr. v. Lackman, 39 Mo. 91; Wojtylak v. Coal Co., 188 Mo. 287; Grout v. Railroad, 151 Mo.App. 330.

Edwin L. Moore for respondent.

(1) In considering appellant's first assignment the denial of its demurrer to the evidence, it may be profitable to examine the cases showing the theory on which plaintiff prepared this petition and tried the case. Under section 3140, requiring a signal to be given by locomotives approaching crossings, a collision is not necessary to make defendant liable; but if the omission lures a traveler into a place of danger and his animals are frightened by the train and cause injury, then the omission of the signals is the proximate cause, and the course the unmanageable animals might take is merely incidental and unimportant. Turner v. Railroad, 134 Mo.App. 397; Mitchell v. Railroad, 122 Mo.App. 60; Feeney v. Railroad, 123 Mo.App. 430; Marsh v. Railroad, 104 Mo.App. 580; Morton v. Railroad, 113 Mass. 366; Prescott v. Railroad, 113 Mass. 370; Pollock v. Railroad, 124 Mass. 158. (2) Under this statute it is held that failure of signals and injury make a prima facie case. The law presumes the failure was the proximate cause. Huckshold v. Railroad, 90 Mo. 556; McGee v. Railroad, 214 Mo. 544; McNulty v. Railroad, 203 Mo. 475; Stotler v. Railroad, 200 Mo. 137; Roberts v. Railroad, 113 Mo.App. 9. (3) And when plaintiff once makes a prima facie case, then no matter how much or what kind of evidence defendant may offer, as to his contributory negligence or anything else, and whether plaintiff contradicts it or not, he is entitled to have the jury weigh defendant's evidence, for the jury has the right to reject the whole of it if it sees proper, unless plaintiff himself shows his own contributory negligence, something out of the question here. Gannon v. Gaslight Co., 145 Mo. 516; Mowry v. Norman, 204 Mo. 191; Porter v. Stock Yards Co., 213 Mo. 380; Chinn v. Railroad, 100 Mo.App. 584; Hitt v. Hitt, 150 Mo.App. 638; Barker v. Pub. Co., 152 Mo.App. 722; Loan Co. v. Killian, 153 Mo.App. 111; Milne v. Railroad, 155 Mo.App. 473. (4) Under the foregoing authorities the petition certainly stated a cause of action and at the trial plaintiff sustained it with substantial evidence. That being true a demurrer to the evidence is unavailing. State v. Scott, 214 Mo. 261; Bank v. Redfearn, 141 Mo.App. 386; Aultman v. Organ, 149 Mo.App. 103. (5) Where the evidence is substantial and reasonable minds may differ about it, alleged physical facts are not allowed to break it down as a matter of law. The following cases include photographs, actual measurements, etc., and will be discussed in argument. Phelan v. Paving Co., 227 Mo. 708; Woodward v. Railroad, 152 Mo.App. 475; Goodwin v. Tel. Co., 138 S.W. 943; King v. Railroad, 143 Mo.App. 291; Davis v. Railroad, 46 Mo.App. 185. (6) Any possible omission in respondent's instruction No. 2 as to contributory negligence is fully supplied by the instructions for defendant. Even necessary elements in general instructions, such as proximate cause, etc., may thus be supplied. Asbill v. Joplin, 140 Mo.App. 259; Neale v. McKintrey, 7 Mo. 128; Prewitt v. Martin, 59 Mo. 325; Bradford v. Floyd, 80 Mo. 207; Anderson v. Railroad, 161 Mo. 427; Nephler v. Woodward, 200 Mo. 190; Deschner v. Railroad, 200 Mo. 333; Railroad v. Stewart, 201 Mo. 499; Gibler v. Association, 203 Mo. 222; Carnovski v. Transit Co., 207 Mo. 277; Flaherty v. Transit Co., 207 Mo. 318; Orcutt v. Building Co., 214 Mo. 35; Bell v. Railroad, 125 Mo.App. 668. (7) An instruction is not error for assuming an undisputed fact. Johnson v. Railroad, 77 Mo. 553; Cahill v. Railroad, 205 Mo. 407. (8) An observing but non-expert witness may testify that something is unusual. 17 Cyc. 107; Feeney v. Railroad, 123 Mo.App. 425; Phelan v. Paving Co., 227 Mo. 709; Stotler v. Railroad, 200 Mo. 127. (9) The proximate cause was the omission of the statutory signals and we may trace back through the various incidents to this real cause of the whole calamity, this making the escape of steam merely one link in the chain, even though by itself it might not be negligent. Nagel v. Railroad, 75 Mo. 661; Boggs v. Railroad, 18 Mo.App. 278; Morrison v. Railroad, 27 Mo.App. 434; Shell v. Railroad, 132 Mo.App. 536; Parker v. Transit Co., 108 Mo.App. 465.

NIXON, P. J. Cox, J., concurs. Gray, J., dissents, and files separate opinion.


Page 407

[164 Mo.App. 707] NIXON, P. J.

On March 18, 1910, after sundown and about dusk, respondent was driving a team hitched to a buggy on a public highway in Jasper county where the same crossed the track of appellant's railroad, and his team became frightened at appellant's freight train and ran away, and he was permanently injured. He instituted this suit for damages, alleging that the agents and servants of the appellant in charge of the train failed to give any statutory signals for the crossing, and also that they negligently and carelessly permitted an unusual amount of steam to escape from the engine on such highway, thereby frightening plaintiff's team. The suit was instituted in the circuit court of Barton county, and was there tried before a jury on the eleventh day of April, 1911, resulting in a verdict in favor of the plaintiff for five thousand dollars. A motion for a new trial was filed and overruled and the company appealed to this court.

It appears from the evidence that plaintiff was driving north on the public road which runs north and south, and that the railroad track runs southeast and northwest intersecting the public road at an acute angle. Plaintiff was driving two ponies to a single buggy. With him in the buggy was a young man named Shelton who was leading five head of mules belonging to plaintiff. The plaintiff was coming from the south and the train from the southeast. On the east side of the public road was a peach orchard. The plaintiff with his team and the mules passed over the [164 Mo.App. 708] railroad crossing but the animals then became frightened at the train and the team ran away and plaintiff was thrown out of the buggy and seriously injured, one of his legs having to be amputated.

The plaintiff testified that he had crossed the railroad at this crossing eight different times during the fall and winter preceding the time he was injured and that no signals were given for the crossing. He also stated that steam was escaping from the engine at the time it passed the crossing on the day of the accident. The defendant offered no testimony tending to contradict the above facts, and offered no evidence of any of its employees in charge of the train or otherwise that it gave the proper statutory signals when approaching the crossing, and therefore they may be conceded for the purposes of this appeal as being true.

The plaintiff testified at the trial that his mules were not accustomed to trains, and knowing of the public crossing, he was on the lookout for approaching trains; that he was driving about three miles an hour, in a slow trot, and that he both looked and listened for an approaching train after he passed the corner of the orchard and neither saw the train nor heard any signal. That the orchard comes to a V-shape, the point of the V being made towards the crossing

Page 408

by the public road on one side and the railroad on the other; that traveling on the public road, when he had passed the last tree in the orchard, the railroad track would be about twenty-five or thirty feet from him; that he could not see a train approaching the crossing from the southeast because the railroad comes up out of a valley and trains come through a dirt cut which is grown up with...

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