Shelton v. Thompson

• Decision Date: 05 February 1945
• Docket Number: 39176
• Parties: Leonora Shelton, a Minor, by Archie E. Shelton, Next Friend, v. Guy A. Thompson, Trustee in Bankruptcy of Missouri Pacific Railroad Company, a Corporation, Debtor, Appellant
• Court: Missouri Supreme Court

185 S.W.2d 777

353 Mo. 964

Leonora Shelton, a Minor, by Archie E. Shelton, Next Friend, v. Guy A. Thompson, Trustee in Bankruptcy of Missouri Pacific Railroad Company, a Corporation, Debtor, Appellant

No. 39176

Supreme Court of Missouri

February 5, 1945

Rehearing Denied March 5, 1945.

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

Reversed and remanded.

Watts & Gentry for appellant; Thomas J. Cole of counsel.

(1) The ordinance was not shown to have been violated for it was conditioned upon failure to comply with a notice which the evidence does not show was ever given. No evidence being offered to show such violation, it constituted no ground for recovery and could not properly be submitted to or considered by the jury. Sparkman v. Wabash R. Co., 191 Mo.App 463; Snyder v. Murray, 17 S.W.2d 639; Lackey v. U. Rys. Co., 288 Mo. 120; State ex rel. v. Trimble, 52 S.W.2d 864; Krause v. Pitcairn, 167 S.W.2d 74. (2) Plaintiff's fantastic story concerning the action of the lights and bells at the crossing and her own alleged fall is so unreasonable and so contrary to physical facts and all human experience that it does not amount to any substantial proof and should be disregarded entirely in passing upon the demurrer to the evidence. Where such testimony is given and it is perfectly apparent that it cannot be true, the rule in Missouri is that it must be considered as no evidence at all. Ducoulombier v. Thompson, 124 S.W.2d 1105; Mahl v. Terrell, 111 S.W.2d 160; Cadwell v. Wilson Stove & Mfg. Co., 238 S.W. 415; Scroggins v. Met. St. Ry. Co., 138 Mo.App. 215; Hamilton v. K.C. Southern Ry. Co., 250 Mo. 714; Daniels v. K.C. Elevated Ry. Co., 177 Mo.App. 280; Dunn v. Alton R. Co., 104 S.W.2d 311; Maxwell v. Kansas City, 52 S.W.2d 487; State ex rel. v. Shain, 105 S.W.2d 915; Weltmer v. Bishop, 171 Mo. 111; Carner v. Railway, 89 S.W.2d 947; Alexander v. Ry., 289 Mo. 599; State ex rel. Thompson v. Shain, 173 S.W. 706; Harris v. Thompson, 166 S.W.2d 439; Clark v. Bridge Co., 62 S.W.2d 1079. (3) In numerous cases in which plaintiffs had testified that when approaching a railroad track over which was an unobstructed view in both directions for a great distance, they looked and listened and could neither see nor hear an approaching train, the courts have not hesitated to brand their testimony as false and to disregard it entirely because it was evident from the physical facts presented that if they looked they saw the approaching train, and if they did not see it it was because they did not look. The courts have therefore steadfastly and continuously refused to regard such testimony as having any probative value whatever and have reversed outright many judgments based upon such statements. Phippin v. Mo. Pac. R. Co., 196 Mo. 321; Payne v. C. & A.R. Co., 136 Mo. 562; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 362; Petty v. St. L. & Mer. R.R. Co., 179 Mo. 666; Hook v. Mo. Pac. R. Co., 162 Mo. 569. (4) The plaintiff's evidence plainly shows that the plaintiff heedlessly crawled upon the defendant's track in close proximity to its rapidly approaching train, without taking any precaution to avoid being struck. Therefore she cannot recover damages for injuries so sustained. Becker v. Mo. Pac. R. Co., 144 S.W. 803; Alexander v. St. L.-S. F. Ry. Co., 289 Mo. 599; Green v. Mo. Pac. Ry. Co., 192 Mo. 131; Laun v. St. L.-S. F. Ry. Co., 216 Mo. 563; Keele v. A., T. & S.F. Ry. Co., 258 Mo. 62; Gunn v. K.C. Belt Ry. Co., 141 Mo.App. 306; Whitesides v. C., B. & Q. Ry. Co., 186 Mo. 608; Woodward v. Wabash R. Co., 152 Mo.App. 468; Hamilton v. Railroad Co., 250 Mo. 714; Bohring v. Metropolitan St. Ry. Co., 194 Mo. 511; Schmidt v. Railroad Co., 191 Mo. 215; Reno v. St. L. & S. Ry. Co., 180 Mo. 469; Wolf v. Wabash R. Co., 212 Mo.App. 26, 251 S.W. 441; Farris v. Thompson, 68 S.W.2d 469; Hendrick v. Kurn, 179 S.W.2d 717. (5) A pedestrian, like anybody else going upon a railroad crossing, must exercise ordinary care to look and listen for the approach of trains. If a plaintiff fails to exercise such care and if his negligence directly contributes to and concurs with the negligence of the railroad company in the operation of its train, there is no liability on the part of the railroad company for resulting injury or death. Gumm v. Railroad Co., 141 Mo.App. 306; Laun v. Railroad Co., 216 Mo. 563; Green v. Mo. Pac. R. Co., 192 Mo. 131; Alexander v. Frisco Ry. Co., 289 Mo. 599; Reno v. St. L. & Suburban Ry. Co., 180 Mo. 469; Dove v. A., T. & S.F. Ry. Co., 140 S.W.2d 715; Payne v. C. & A.R. Co., 136 Mo. 562; Burge v. Railroad, 244 Mo. 76; Stotler v. Railroad, 204 Mo. 619. (6) The humanitarian or last clear chance rule takes effect only when a pedestrian is in such a position and the imminent peril is known to the defendant or would be known if he exercised ordinary care to discover it, and then defendant would not be liable unless thereafter there was reasonable opportunity to avoid injuring plaintiff. Hamilton v. Railroad, 250 Mo. 714; Hendrick v. Kurn, 179 S.W.2d 717; Keele v. Railroad, 258 Mo. 62; Krause v. Pitcairn, 167 S.W.2d 74; Whitesides v. C., B. & Q.R. Co., 186 Mo.App. 608; State ex rel. Fleming v. Bland, 15 S.W.2d 798; McGee v. Railroad, 214 Mo. 530; Battles v. U. Rys. Co., 178 Mo.App. 596; Farris v. Thompson, 168 S.W.2d 439; Cochran v. Thompson, 148 S.W.2d 532; 70 A.L.R. 116; Buehler v. Festus Merc. Co., 119 S.W.2d 961; Isabel v. Railroad Co., 60 Mo. 475; Ayers v. Wabash Ry. Co., 190 Mo. 228; Voorhees v. C., R.I. & P.R. Co., 30 S.W. 22; Trigg v. Water, Light & Tr. Co., 215 Mo. 521. (7) Instruction No. 2, permits recovery if the jury find that an ordinance of the City of St. Louis was in effect limiting the rate of speed of defendant's train to six miles an hour and that it was traveling in excess of that speed. No violation of that ordinance was shown. Since the instruction had nothing in the evidence to afford a foundation for it, it was reversible error to give it. Sparkman v. Wabash R.R. Co., 191 Mo.App. 463; Snyder v. Murray, 17 S.W.2d 639; Lackey v. United Rys. Co., 288 Mo. 120; State ex rel. v. Trimble, 52 S.W.2d 864; Krause v. Pitcairn, 167 S.W.2d 74. (8) Plaintiff's Instruction 3 is erroneous in two particulars; in the first place it assumes that the plaintiff was in a position of imminent peril and merely permits the jury to find that the defendant's agents and servants saw her in such position. If such an instruction could have been given it should first have required the jury to find that plaintiff was in a position of imminent peril and then should have permitted the jury to find that the defendant's agents and servants saw her in such position. An instruction should not assume a disputed fact. For such errors as this, judgments have been reversed by our appellate courts. Reel v. Consolidated Inv. Co., 236 S.W. 43; Boland v. St. L.-S. F. Ry. Co., 284 S.W. 141; Gebhardt v. A.C. & F. Co., 296 S.W. 446; Ganey v. Kansas City, 259 Mo. 654. (9) In the second place the instruction is erroneous because there was insufficient evidence to justify application of the humanitarian or last chance rule. The same authorities cited under point 6 are applicable here, as to the inapplicability of the humanitarian rule. Since the evidence did not support that theory, it was reversible error to submit it to the jury. Lackey v. United Rys. Co., 288 Mo. 120; Krause v. Pitcairn et al., 167 S.W.2d 74. (10) The court erred in refusing to give defendant's instruction marked A. Trigg v. Water, L. & Tr. Co., 215 Mo. 521; Crossno v. Term. Railroad Assn., 62 S.W.2d 1092; Hufft v. St. L.-S. F.R. Co., 222 Mo. 286; English v. Wabash Ry. Co., 108 S.W.2d 51; Doucoulombier v. Thompson, 124 S.W. 1105; Voorhees v. C., R.I. & P.R. Co., 30 S.W.2d 22; Cochran v. Thompson, 148 S.W.2d 582; Frye v. Railroad, 200 Mo. 377; Stroud v. Kurn, 159 S.W.2d 307; Angelo v. Baldwin, 121 S.W.2d 731; Yakubinis v. M., K. & T.R. Co., 137 S.W.2d 504. (11) The defense set forth in this refused instruction was not submitted to the jury in any instruction. Since the facts justified it, and the law also justified it, and it was not covered by any instruction, the refusal of this instruction constitutes reversible error. Root v. Q., O. & K.C.R. Co., 237 Mo. 640; Webb v. Byrd, 203 Mo.App. 589; Campbell v. St. L. & Suburban Ry. Co., 175 Mo. 161.

Joseph N. Hassett and Vernon L. Turner for respondent.

(1) Courts are reluctant to set verdicts aside on the ground they are contrary to physical facts, and will do so only when such legal conclusion is so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other conclusion. It is not the province of the appellate court to pass on the weight of the evidence, and it must be an extraordinary case that authorizes the court to regard sworn testimony as manifestly impossible and untrue. Parrent v Mobile & Ohio R., 334 Mo. 1202, 70 S.W.2d 1068; Gately v. St. Louis-S. F. Ry. Co., 332 Mo. 1, 56 S.W.2d 54; Doyle v. Merchants Bridge Term. Ry., 326 Mo. 425, 31 S.W.2d 1010; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960. (2) Defendant's contention that plaintiff's testimony concerning the operation of the electric signals conflicts with physical facts and laws is an attempt to have the court pass on the credibility of the witnesses, and to ascribe absolute verity to the testimony of the engineer who described the operation of the signals for defendant, and ignore the physical law of sight and hearing employed by plaintiff, who was in a position to see and hear and gave positive testimony about the signals. Fritz v. Manufacturers Ry. Co., 124 S.W.2d 603. (3) The alleged variance between the place of injury, as testified to by plaintiff, and the point at which there was other evidence tending to show blood was found upon the rail,...