Monroe v. Chicago & Alton Railroad Company, Louisiana & Mississippi Railroad Company
| Decision Date | 02 April 1923 |
| Parties | T. M. MONROE v. CHICAGO & ALTON RAILROAD COMPANY, LOUISIANA & MISSISSIPPI RAILROAD COMPANY and JOHN A. BROWN, Appellants |
| Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. -- Hon. Ernest S. Gantt, Judge.
Reversed.
A. C Whitson, Alpha N. Brown and Charles M. Miller for appellants.
(1) Plaintiff's negligence in not avoiding collision with the train at the crossing, as a matter of law bars recovery and the judgment herein should be reversed. Reeves v. Chicago & Alton, 251 Mo. 169; Vandeventer v. Chicago & Alton, 177 S.W. 834; Underwood v. West, 187 S.W. (Mo. App.) 84. (2) The trial court erred in admitting on behalf of plaintiff, in rebuttal, evidence relating to sporadic instances of the electric crossing bell ringing continuously and not ringing at times between the accident and the installation of the bell, seven years previous to the accident. Hamburger v. Rinkel, 164 Mo. 398, 407; Wojtylak v. Coal Co., 188 Mo. 289; Scharff v Grossman, 59 Mo.App. 199; Magnet v O'Neill, 51 Mo.App. 35; St. Louis Gaslight Co. v. Amer. Fire Ins. Co., 33 Mo.App. 348, 375. (3) The trial court erred in refusing to admit before the jury evidence relating to the validity of the alleged speed ordinance. (4) The trial court erred in giving plaintiff's instructions numbered 2 and 5, relating to the alleged speed ordinance, which peremptorily instructed the jury that the alleged speed ordinance was a valid and binding ordinance upon the defendants, defendants asserting that said alleged speed ordinance was not a valid and binding ordinance upon defendants, and that said ordinance was unreasonable, an interference with interstate commerce and unconstitutional and void. (5) The trial court erred in giving plaintiff's instruction numbered 9, which instructed the jury that if they found a verdict against the Chicago & Alton Railroad Company, they would in such event also find a verdict against the other two defendants, the Louisiana & Missouri River Railroad Company and Engineer John A. Brown. (6) The trial court erred in refusing defendant's instruction reading: "The court instructs the jury that if they believe from the evidence the electric crossing bell was ringing in time to have warned plaintiff Monroe, of the approaching train so as to have avoided collision therewith, and that he could have heard the bell in the exercise of the highest degree of care and caution of a very careful driver by listening and did not heed the warning of the bell, then he was guilty of negligence and can not recover in this case, and your verdict will therefore be in favor of the defendants, irrespective of whether or not the train exceeded the speed ordinance."
Abbott, Fauntleroy, Cullen & Edwards and Rogers & Buffington, for respondent.
(1) The trial court ruled properly in submitting this case to the jury, because: (a) This court, in the same case and on the same state of facts, has held that plaintiff was not guilty of contributory negligence as a matter of law. Monroe v. Chicago & Alton, 280 Mo. 483; Alexander v. Frisco Ry. Co., 233 S.W. 48. (b) There being no material change in the evidence in the present trial from the evidence in the former trial, the decision of this court on the former appeal constitutes the law of the case and should be followed. Baker v. Railroad Co., 147 Mo. 149; Keith v. Keith, 97 Mo. 231; Hickman v. Link, 116 Mo. 123; Gwin v. Waggoner, 116 Mo. 151. (2) The ruling of the trial court of which complaint is made is clearly correct, because: (a) In order to rebut testimony offered by one party tending to show that an inanimate object such as an engine or an electric signal bell never failed to act and was so construed that it could not fail to act under a given state of facts, the other party may prove instances where the same instrumentality, under similar conditions, failed to act, and such testimony is not collateral. 1 Jones on Evidence, sec. 171, pp. 880, 884; Ross v. Boston & Worster Railroad Co., 6 Allen (Mass.) 87; Loring v. Worchester Ry. Co., 131 Mass. 469; Touhy v. Columbia Steel Co., 61 Ore. 527; Shea v. Fabries Co., 163 Mass. 463; Bemis v. Temple, 162 Mass. 342; Reeve v. Dennett, 145 Mass. 23; Chicago Anderson P. B. Co. v. Reinneiger, 33 Am. St. 257, 140 Ill. 334; Orcutt v. Cent. Bldg. Co., 214 Mo. 53; Coale v. Railroad Co., 60 Mo. 227; Lester v. Railroad Co., Id. 265; Tapley v. Railroad, 129 Mo.App. 92; Matthews v. Railroad, 142 Mo. 645. (b) If one party introduces evidence which might be inadmissible under the strict rules, the other party is entitled to introduce evidence on the same matters and thereby rebut the testimony of his adversary, and in such case the party who first introduces such evidence cannot assign error because the court admitted testimony in rebuttal; and this is true even though the testimony offered by both parties is immaterial and collateral. Rebuttal evidence may pursue the same scope as that developed by the testimony it is designed to rebut. 22 C. J. 195; 10 R. C. L. sec. 103, p. 936; Sharp v. Hall, 86 Ala. 110, 11 A. S. R. 28; De Forge v. Railroad Co., 178 Mass. 59, 86 A. S. R., 464; Parker v. Atlantic C. L. Railroad, 133 N.C. 335, 63 L. R. A. 82; Bickley v. Commercial Bank, 39 S.C. 281, 39 A. S. R. 721; Powell v. Railroad Co., 229 Mo. 246; Crawford v. Stock Yards Co., 215 Mo. 394; Enyeart v. Peterson, 184 Mo.App. 519; Hays v. Metropolitan St. Railway, 182 Mo.App. 393; Hales v. Raines, 162 Mo.App. 46; Baker v. Pulitzer Pub. Co., 103 Mo.App. 54; Hill v. Seneca Bank, 100 Mo.App. 230. (3) The court did not err in refusing to hold that the speed ordinance was invalid or in refusing to permit the jury to hear evidence touching its invalidity because (a) The doctrine is uniformly supported that the question whether an ordinance is reasonable is one of law for the court. 2 McQuillin on Municipal Corporations, p. 1583, sec. 729; Zumwalt v. Air Line, 71 Mo.App. 680; City of St. Louis v. Weber, 44 Mo. 550; Barton v. Odessa, 109 Mo.App. 76; (b) This court has held not only that similar ordinances but this specific ordinance of this particular town is valid and affirmed a judgment in the amount of fifteen thousand dollars because of its violation. Stotler v. C. & A. Railroad, 200 Mo. 109, 204 Mo. 619, 280 Mo. 485. (4) There was no error in instructing for a verdict against both defendants. Where the undisputed and admitted testimony shows all the defendants are liable, the verdict should be against all or none. Whitaker v. Railroad, 252 Mo. 460; McGinnis v. Railroad, 200 Mo. 348. (5) The court did not err in refusing to give the second instruction relating to electric crossing bell. (a) Instruction numbered 9 fully covered the point in the case, and was really too favorable to the defendant. (b) The instruction refused contained unwarranted assumptions of fact and was erroneous in declaring that a failure to heed the warning of the bell constituted contributory negligence as a matter of law. (c) Each of said instructions might well have been refused, because they singled out particular facts and permitted the defendant to substitute the ringing of an electric bell for the signals required by statute.
HIGBEE, C. David E. Blair and Walker, JJ., concur; Woodson, C. J., and Graves, J., dissent as to Paragraph II of the opinion, but concur in the result reached in the other paragraphs James T. Blair, Ragland and White, JJ., dissent.
This is an action for damages for injuries sustained by plaintiff when his automobile was struck and demolished by one of defendant's passenger trains at the crossing of Pine Street in the village of Laddonia, Audrain County, Missouri, on July 17, 1913, Two juries disagreed. On the third trial the verdict was for the defendants. On appeal this was reversed and a new trial ordered. See opinion in 280 Mo. 483, 491, 219 S.W. 68, for a statement of the facts as they appeared on the first appeal. On a re-trial the verdict was for the plaintiff in the sum of $ 7950, for personal injuries and damages to his automobile.
The railroad runs from east to west through the village. The station is on the north side of the main track, and east of Pine Street, which runs north and south through the village. There is a switch or siding on the south side of the main track, which siding is about one-half mile long. Front Street is on the south side of the right of way. There are structures, buildings and trees on the south side of the siding, which obstruct the view to the east as one approaches Pine Street crossing from the south.
Plaintiff, a physician, had lived in Laddonia some years, having a drug store and office about one block east of Pine Street crossing and south of defendant's station. He was familiar with the surroundings and knew the schedules of defendant's trains. He testified "there was a regular mail train that came through every morning, one mail train, and I presume this was the same train." He did a general practice in the country and often drove his automobile over this crossing and knew of the obstructions referred to. On the morning of the accident he drove his car westward on Front Street, and turned to the north to cross the railroad on Pine Street. He testified that the derail was about twenty or thirty feet from the middle of the street, and that he drove within twenty-five feet of the box cars; that he looked attentively both east and west; could see no train coming from the west; "and my attention was all directed to the east, being obstructed by those box cars, and there was no crossing bell ringing and I suppose that everything was clear and I ventured on across the C. & A. crossing."
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