Larey v. Railroad Co., 31249.

Citation64 S.W.2d 681
Decision Date19 October 1933
Docket NumberNo. 31249.,31249.
PartiesS.P. LAREY v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. Hon. Darius A. Brown, Judge.

AFFIRMED.

Carl S. Hoffman, Cooper, Neel, Kemp & Sutherland and Frank J. Rogers for appellant.

(1) The court erred in giving plaintiff's Instruction I. (a) Said instruction erroneously submits the hypothesis that the fireman could have stopped the engine and sounded the whistle and bell, which is contrary to and unsupported by the evidence and also submits the hypothesis that the engineer could see the plaintiff as he approached the tracks, which is unsupported by and contrary to the evidence. Chawkley v. Wabash Ry. Co., 317 Mo. 804. (b) Said instruction erroneously submits failure to warn as negligence and a cause of plaintiff's injury. Mockowik v. Railroad, 196 Mo. 550; Peterson v. United Rys., 270 Mo. 67; Gubernick v. United Rys. Co., 217 S.W. 33; Murray v. Transit Co., 176 Mo. 189. (c) Said instruction erroneously fails to limit the failure to warn and to slow down and stop the engine to that time after plaintiff reached a position of peril. Koontz v. Wabash Ry. Co., 253 S.W. 413; Phillips v. Henson, 30 S.W. (2d) 1065; State ex rel. Fleming v. Bland, 15 S.W. (2d) 798. (d) Said instruction fails to submit the question of whether or not plaintiff was in a position of imminent peril from being struck by defendant's engine, but assumes that he was in such position of peril when he was either on or approaching the tracks in question, without having the jury find such to be the fact. Thompson v. Railroad, 18 S.W. (2d) 401; Clark v. Ry. Co., 6 S.W. (2d) 954; Banks v. Morris, 302 Mo. 254. (2) The court erred in refusing to give defendant's Instruction 3. Guyer v. Ry. Co., 174 Mo. 344; Pennell v. Railroad, 153 Mo. App. 566; Tannehill v. Ry. Co., 213 S.W. 822; Clark v. Railroad Co., 6 S.W. (2d) 954. (3) The court erred in refusing to give defendant's Instruction 10. (4) The court erred in refusing to give defendant's Instruction 11. Rollison v. Railroad, 252 Mo. 525. (5) The court erred in refusing to give defendant's Instructions 13 and 14. (6) The court erred in refusing to give defendant's Instruction 17.

Charles A. Orr, Harry G. Kyle and Hume & Raymond for respondent.

(1) The requirement in plaintiff's main instruction that the jury find defendant's fireman could have seen plaintiff approaching the tracks and prevented the accident is not prejudicially erroneous. Furthermore, defendant joined therein by submitting the same issue in its instructions. Grasher v. K.C. Pub. Serv. Co., 35 S.W. (2d) 645; Koontz v. Wabash Ry. Co., 253 S.W. 413; Sparks v. Harvey, 214 S.W. 249; Thompson v. Railroad Co., 18 S.W. (2d) 401; Chawkley v. Wabash Ry. Co., 297 S.W. 20 (a) Plaintiff's Instruction 1 was not erroneous in submitting failure to warn as negligence. Riggle v. Wells, 287 S.W. 803; Steigleder v. Lonsdale, 253 S.W. 487; Westerman v. Brown Cab Co., 270 S.W. 144; McKenzie v. Randolph, 257 S.W. 126. (b) Plaintiff's Instruction 1 is not subject to the criticism that it fails to limit the failure to warn, slow down and stop to the time after plaintiff reached a position of imminent peril. Gray v. Columbia Terminals Co., 52 S.W. (2d) 812; Schmitt v. American Press, 42 S.W. (2d) 969; Romich v. Wilson. 28 S.W. (2d) 430; Rudy v. Autenrieth, 287 S.W. 850. (c) Plaintiff's Instruction 1 is not erroneous as failing to require the jury to find plaintiff was in a position of peril. Fledderman v. Manufacturers Railroad Co., 254 S.W. 717; Packer v. Chicago, M. & St. P. Ry. Co., 265 S.W. 119; Dincler v. Chicago, M. & St. P. Ry., 265 S.W. 113; Crockett v. K.C. Rys. Co, 243 S.W. 902; Allen v. Purvis, 30 S.W. (2d) 196; Tocco v. C.D. Kenny Co., 269 S.W. 928. (2) The court properly refused defendant's requested Instruction 3. Clark v. Ry. Co., 6 S.W. (2d) 954; Martin v. Fehse, 55 S.W. (2d) 440. (3) The court properly refused defendant's requested Instruction D-10. Kleinlein v. Foskin, 13 S.W. (2d) 648; Spencer v. Railroad Co., 317 Mo. 502, 297 S.W. 356. (4) The court properly refused defendant's requested Instruction 11. Banks v. Morris & Co., 257 S.W. 482; Zumwalt v. Railroad Co., 266 S.W. 717. (5) The court properly refused defendant's requested Instructions 13 and 14. Banks v. Morris & Co., 257 S.W. 482. (6) The court properly refused defendant's requested Instruction 17. Seithel v. St. Louis Dairy Co., 300 S.W. 280; Shumate v. Wells. 9 S.W. (2d) 632; Burton v. Phillips. 7 S.W. (2d) 712; Berry v. Railroad Co., 43 S.W. (2d) 782; Cox v. Term. Railroad Assn., 43 S.W. (2d) 586; Agee v. Mo. Pac. Ry. Co., 288 S.W. 996; Grubbs v. K.C. Pub. Serv. Co., 45 S.W. (2d) 71.

HYDE, C.

This is an action for damages for personal injuries, sustained when plaintiff's Model T. Ford met defendant's switch engine on a grade crossing. Plaintiff received a verdict for $11,500. and from the judgment entered thereon defendant appealed. Before the introduction of any evidence, plaintiff dismissed all the charges of primary negligence and announced that he expected to go to the jury on the humanitarian rule. Defendant does not contend that plaintiff failed to make a submissible humanitarian case, but assigns error only concerning the action of the trial court in giving and refusing instructions. We will, therefore, state the facts which the evidence of each party tends to prove. [Rule 6, Supreme Court.]

Plaintiff's evidence tends to prove that he was driving east on Twelfth Street, in Kansas City, under the Twelfth Street viaduct and, having missed the place where he intended to go upon the lower deck of the viaduct, he decided to drive back east to it. To do so he drove on across the railroad tracks, running under the viaduct, turned around one of the south supporting columns of the viaduct at the east edge of the tracks, and then started back across the tracks in a northwesterly direction. When he first drove east across the tracks he looked south and saw a switch engine "standing there headed south." When he turned around the column and started back west he looked south again "and that switch engine was apparently standing in the same place" as before, forty or fifty feet south of the south edge of the crossing. Plaintiff drove across the tracks in low gear at the rate of three or four miles an hour. When the front wheels of his automobile reached the track, upon which the switch engine was, he looked up and saw the tender of the switch engine within three feet of him. At that time, he was about fifteen feet from the north edge of the crossing. This street crossing was seventy-three feet wide and was paved with brick with boards between the tracks. Plaintiff's evidence further tended to show that his car was struck by the back end of the tender of the switch engine, which was backing north across the crossing pulling three cars; that it was pushed off the crossing and up the track, over some switches, about thirty-five feet north of the north edge of the crossing; and that his car did not turn over nor was he hurt until it was pushed off of the crossing onto the switches. The accident happened in March, about noon; there was a cold wind blowing from the north; plaintiff had side curtains with isinglass windows on his automobile; and there was a storm curtain at the back of the cab of the switch engine. Plaintiff's evidence also tended to show that no bell or whistle was sounded by the switch engine; that there was no crossing flagman at the crossing; that the switch engine was traveling at four to eight miles per hour; that it could have been stopped in eight feet (defendant's engineer said it was stopped in that distance but later changed his testimony to thirty feet); that when the switch engine approached the crossing the fireman was sitting on the east side, the engineer on the west side and a switchman was standing on a foot board at the rear of the tender; and that none of them gave him any warning. Plaintiff put defendant's engineer and fireman on the stand and also introduced their depositions. Their evidence was somewhat contradictory.

Defendant had some evidence tending to prove that plaintiff's car was traveling about twenty miles per hour, about three times as fast as the switch engine; that the view of the fireman on that side of the switch engine was obstructed, in approaching the crossing, by a two-story switch shanty so that he could not see plaintiff's car until it came out from behind this shanty; that the whistle was blown on the switch engine; that its bell was ringing; that there was a flagman at the crossing waving a stop sign in front of plaintiff and blowing a police whistle; and that the fireman and others yelled at him to stop, but that he drove onto the track in front of the switch engine without looking toward it. The evidence of defendant's engineer and fireman also tends to prove that at the time plaintiff started west over the tracks, about thirty feet from the track on which he was struck, the rear end of the tender of the switch engine was fifteen feet north of the south edge of the crossing; that it was then about thirty feet from the point where it struck plaintiff's automobile so that the engine and the automobile traveled the same distance in the same time; that the switch engine, and cars, could not have been stopped in less than thirty feet and was stopped in that distance; and that plaintiff's automobile was only pushed partly over the north edge of the crossing.

Defendant assigns as error the giving of plaintiff's Instruction No. 1. This instruction, after hypothesizing the facts concerning the approach of the automobile and the switch engine toward the crossing, authorizes a verdict for plaintiff if the jury finds those facts "and that plaintiff was approaching a position of imminent peril, upon said track, if so, and that plaintiff was oblivious to his danger, if so, and that the...

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