36 S.W. 834 (Mo. 1897), Culbertson v. Metropolitan Street Railway Company

Citation:36 S.W. 834, 140 Mo. 35
Opinion Judge:Gantt, P. J.
Party Name:Culbertson v. Metropolitan Street Railway Company, Appellant
Attorney:R. T. Railey, James Black and Pratt, Ferry & Hagerman for appellant. Buckner, Bird & Lake and W. L. Jerrott for respondent.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur.
Case Date:June 08, 1897
Court:Supreme Court of Missouri

Page 834

36 S.W. 834 (Mo. 1897)

140 Mo. 35



Metropolitan Street Railway Company, Appellant

Supreme Court of Missouri, Second Division

June 8, 1897 [*]

Appeal from Cass Circuit Court. -- Hon. W. W. Wood, Judge.


R. T. Railey, James Black and Pratt, Ferry & Hagerman for appellant.

(1) There was error in admitting in evidence section 701 of the Revised Ordinances. This section had no application in the case of a vehicle meeting a street railway train. Booth on Street Railways, sec. 302; Spurrier v. Railroad, 3 Wash. 659; Hegan v. Railroad, 15 N.Y. 380. (2) There was error in admitting proof that defendant was notified of the fact that Looney was a drinking man, and that he was in the habit of drinking before the accident. This testimony was wholly immaterial, for if the flagman was negligent, then defendant was responsible regardless of what he had ever done before, or regardless of the question of his capacity, and whether he had been negligent at some time before was wholly immaterial. Alcorn v. Railroad, 108 Mo. 81. (3) There was error in admitting the testimony of Orville F. Trueblood. The question as to within what space a car can be stopped is a matter of expertness. The question was not a proper hypothetical one, nor a proper expert question, because it did not ask as to the particular place in question or take into consideration the circumstances and conditions surrounding the situation. (4) There was error in giving plaintiff's instruction 6. First. The instruction assumed that the train passed over the crossing while Culbertson was on it, whereas, in truth, the collision did not even occur at the crossing, and had Culbertson turned to the left instead of to the right he would not have been injured. Second. The instruction assumes that Culbertson diligently complied with the invitation of the watchman, whereas there was an abundance of testimony that the flagman tried to beat his horse off and make him go to the left, but Culbertson refused to pay any attention thereto or to the other warnings given. Third. Upon the facts of this case it was erroneous to say to the jury that there was any right to presume. Lynch v. Railroad, 112 Mo. 420; Weller v. Railroad, 120 Mo. 635; Myers v. Kansas City, 108 Mo. 480; Moberly v. Railroad, 98 Mo. 183; Rapp v. Railroad, 106 Mo. 423; Bluedorn v. Railroad, 121 Mo. 270; Hamm v. Barrett, 28 Mo. 388, 389; Chouquette v. Barada, 28 Mo. 491; 2 Thompson on Trials [4 Ed.], sec. 2290. The instruction is vicious because it singles out an isolated matter and gives undue prominence thereto. Anderson v. Kincheloe, 30 Mo. 520; Clark v. Hammerle, 36 Mo. 620; Fine v. St. Louis Pub. Schools, 39 Mo. 59; Campbell v. Allen, 38 Mo. 213; Jones v. Jones, 57 Mo. 138; Forrester v. Moore, 77 Mo. 651; Weil v. Schwartz, 21 Mo.App. 372; Schulter v. Ins. Co., 1 Mo.App. 285. Fourth. The instruction was erroneous in that the right to presume was given without regard to whether Culbertson knew that the train was coming, or by the exercise of ordinary care could have known it. Lynch v. Railroad, 112 Mo. 420; Weller v. Railroad, 120 Mo. 635; Grippen v. Railroad, 40 N.Y. 34; 1 Shearman & Redfield on Negligence [4 Ed.], sec. 92. (5) There was error in giving plaintiff's instruction 3. First. The testimony showed that there were other duties for the gripman to perform at the time of making this crossing, which rendered it impossible for him to look ahead at all times, and under such circumstances the law does not require a gripman to be constantly looking ahead. Kennedy v. Railroad, 43 Mo.App. 1; Booth on Street Railways, sec. 306. (6) There was error in giving plaintiff's instructions 1 and 8. These instructions require the penalty of $ 5,000, whereas there was submitted to the jury the acts of negligence of the company in failing to employ capable watchmen and in failing to have a sufficient number of watchmen. In such a case the penalty clause has no application. Elliott v. Railroad, 67 Mo. 272; Holmes v. Railroad, 69 Mo. 536; Flynn v. Railroad, 78 Mo. 195; Sullivan v. Railroad, 97 Mo. 113; Crumpley v. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; Rapp v. Railroad, 106 Mo. 423. And where there are several acts of negligence, some of which bring the case within the penalty clause of the statute, and some of which do not, it is error to instruct for the penalty. Crumpley v. Railroad, supra; King v. Railroad, supra; Rapp v. Railroad, supra.

Buckner, Bird & Lake and W. L. Jerrott for respondent.

(1) "The Supreme Court . . . shall not reverse the judgment of any court, unless it shall believe that error was committed by such court, against the appellant . . . and materially affecting the merits of the action." R. S. 1889, sec. 2303. The presumptions are all in favor of the validity of the judgment appealed from. Riley v. Valandingham, 9 Mo. 817. (2) There was no error committed in the introduction of ordinance 701. The ordinance was not introduced for any other purpose than to show the deceased was in the exercise of ordinary care, and driving where he might reasonably be expected to drive under the circumstances in taking the right side of the street. If it had even been introduced to prove such an absurdity as claimed by appellant, the evidence was properly limited in its scope by instruction 8 given to appellants. (3) The testimony showing the flagman Looney was drunk at the time of the accident was competent to show he was in no condition to be careful; and the mere fact respondent showed more than she was required to show by showing that he had been drunk on other occasions and that defendant had knowledge of it, gives appellant no right to complain. Williams v. Railroad, 109 Mo. 475; Werner v. Railroad, 44 N.Y. 465. (4) There was no error in admitting the testimony of Orville B. Trueblood. He properly qualified as an expert. The same facts were established by other witnesses. It was nowhere contended that the gripman did not stop the train very quickly after he saw deceased, but the negligence complained of was his failure to keep a lookout for persons on the track, and in his failure to discover deceased in his position of danger when he could have done so. The negligence was in not seeing deceased in time to have stopped his train when he could have done so had he been looking. Hoffman v. Railroad, 51 Mo.App. 273. (5) Instruction 6 simply asserts that if the watchman, stationed at the place where the injury occurred, signaled and invited the deceased to go over said crossing, he was guilty of no negligence in attempting to do so. Instructions must be construed in the light of the evidence and circumstances of each particular case. Boest v. Railroad, 66 N.Y. 639; Sharp v. Glushing, 96 N.Y. 676; Sweeney v. Railroad, 10 Allen, 368; McGee v. Railroad, 92 Mo. 208; Schultze v. Railroad, 32 Mo.App. 439. (6) It is the affirmative action on the part of the railroad company in extending the invitation to cross, which allows him to indulge in his feeling of security and to think he would not be injured. This distinction is carefully noted in the above cases and is absolutely wanting in every case cited by appellant. The instruction was a proper statement of the law under the facts in the case and was in no sense a comment on the evidence. Fusili v. Railroad, 45 Mo.App. 535; Railroad v. Clough, 134 Ill. 586; Railroad v. Adler, 129 Ill. 335; Railroad v. Sloan, 125 Ill. 72; State v. Railroad, 80 Me. 430; Callahan v. Railroad, 52 Hun. 276; Whelan v. Railroad, 38 F. 15. (7) Respondent's instruction number 3 was a proper instruction. Winters v. Railroad, 99 Mo. 509; Humbird v. Railroad, 110 Mo. 80; Hiltz v. Railroad, 101 Mo. 36; Gulick v. Clarke, 51 Mo.App. 26; Kellny v. Railroad, 101 Mo. 67; Dunkham v. Railroad, 95 Mo. 233; Pope v. Railroad, 99 Mo. 400. (8) The direction of the jury to return a verdict for the penalty of $ 5,000 was proper. The case was tried upon the theory that deceased was struck and killed by the negligence of the servants of appellant, whilst running and conducting its train, when by the exercise of ordinary care they could have avoided the injury. And while respondent might have submitted the case on other acts of negligence proven it did not do so. Every instruction authorizing a recovery required a finding that it was the negligence of the servant running, managing, and operating the train. Such penalty is allowed by the statute, section 4425. The defendant is bound to stand upon the theory it adopted on the trial. Smith v. Callahan, 74 Mo. 388; Davis v. Brown, 67 Mo. 313; Teabo v. Goode, 67 Mo. 126; Noble v. Blount, 77 Mo. 242; Holmes v. Braidwood, 82 Mo. 610; Fairbanks v. Long, 91 Mo. 628; Reily v. Railroad, 94 Mo. 611. (9) In conclusion, we maintain that the case is absolutely free from error. Certainly no error or irregularity can be shown or has been shown which would have produced a different verdict.

Gantt, P. J. Sherwood and Burgess, JJ., concur.


[140 Mo. 42] Gantt, P. J.

This is an action by the widow of William Culbertson, deceased, for damages occasioned by the killing of her husband in a collision between a cable street car on defendant's road in Kansas City with a buggy in which plaintiff's husband was riding and driving at the time. The action was commenced in Jackson county and a change of venue was awarded to Cass county, where there was a verdict and judgment for $ 5,000, from which defendant appeals.

Plaintiff's husband was killed a few feet north of "the junction" of Delaware and Ninth streets in Kansas City on May 27, 1893.

To intelligently understand the situation reference must be had to the plat accompanying this opinion, which was in evidence in the circuit court.

The street car line runs south on Delaware street and at Ninth street crosses the double track cable...

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