Alexander v. Railway Co.

• Decision Date: 21 May 1931
• Docket Number: No. 29373.,29373.
• Citation: 38 S.W.2d 1023
• Parties: A.C. ALEXANDER v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

38 S.W.2d 1023

A.C. ALEXANDER v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 29373.

Supreme Court of Missouri. Division One.

May 21, 1931.

Transferred from Springfield Court of Appeals.

AFFIRMED.

E.T. Miller, Mann & Mann and J.W. Miller for appellant.

(1) Respondent was guilty of contributory negligence as a matter of law. Respondent drove onto the tracks and in front of the oncoming train when he had a clear view for at least 600 feet down the track in the direction from which the train came. He could have stopped within three feet. The train was there for him to see it, had he looked, or hear it had he listened, at a time when he could have stopped in safety; and it avails him nothing to say he looked and listened and didn't see the train or hear it, because it would have been physically impossible for the train to have been out of sight around the curve 600 feet away until it was too late for the respondent to have stopped in safety and then for the train to have reached the crossing and struck respondent's truck before he got across. Sanguinette v. Railway, 196 Mo. 473; Kelsey v. Ry. Co., 129 Mo. 371; Huggart v. Ry. Co., 134 Mo. 673. (2) Respondent was bound to use a high degree of care in driving his truck. Laws 1921 (Ex. Sess.), p. 91; Monroe v. Railroad. 249 S.W. 650. (3) Testimony in contravention of the physical facts will be disregarded. Kelsey v. Railroad, 129 Mo. 374; Sanguinette v. Railway, 196 Mo. 466; Hoodenpyle v. Wells, 291 S.W. 522. (4) There was no competent or creditable testimony that the engineer could have stopped or slowed down and thereby avoided the accident after he saw, or by the exercise of ordinary care should have seen, respondent in a place of danger and oblivious thereto. Respondent did not prove or introduce testimony tending to prove sufficient facts to make a case under the "last chance" or "humanitarian rule." Hahn v. Hammerstein, 272 Mo. 262; Sullivan v. Railroad, 271 S.W. 983; State ex rel. v. Bland, 281 S.W. 690; Degonia v. Railroad, 224 Mo. 596; Quindley v. Traction Co., 180 Mo. App. 305. (5) No negligence can be predicated on the alleged failure to give a warning after the engineer saw, or by the exercise of ordinary care should have seen, respondent in danger, because respondent then knew the train was coming. A warning then would have served no purpose. Gubernick v. Rys. Co., 217 S.W. 34; Peterson v. Rys. Co., 270 Mo. 67; Hutchinson v. Railroad Co., 195 Mo. 546. (6) Respondent could not rely on the observance of the ten-mile speed limit ordinance by appellant in driving upon the track, as, he did not know of the existence of such ordinance at the time. Volker v. Railroad, 185 Mo. App. 316. (7) Appellant's duty, after respondent's danger, and the fact that he was oblivious thereto was discovered, was to use ordinary care to stop its train or slacken the speed thereof to avert the danger, having regard to the safety of the equipment, passengers and crew of the train. It was shown and uncontradicted by the evidence that when the train was as close to the station as this train was, the passengers would be getting up, moving about, preparing to get off, and that a sudden stop with the emergency brake would cause a jar which would result in injury to the passengers. Under such circumstances it was improper to permit the witnesses to testify as to how quickly the train could have been stopped in emergency at this point. Ellis v. Street Ry., 234 Mo. 671. Appellant was only bound to use ordinary care under the conditions that then existed and with the means then at hand to avoid injuring respondent when he was discovered, or by the exercise of ordinary care should have been discovered, in a place of peril and oblivious thereto. Haley v. Railroad, 197 Mo. 25; State ex rel. v. Ellison, 182 S.W. 182; Moore v. Ry. Co., 176 Mo. 544.

Schmook & Sturgis for respondent.

(1) Violation by defendant of the speed ordinance was negligence per se. If injury to plaintiff and damage to his property arose therefrom, defendant is liable. Henderson v. Railroad, 248 S.W. 987, 284 S.W. 788: Schurentz v. Railroad, 96 Mo. 509; Keim v. Railroad, 90 Mo. 321. It makes no difference whether plaintiff knew of the speed ordinance or not. Unterlachner v. Wells, 296 S.W. 762; Henderson v. Railroad, 248 S.W. 987. For defendant's operatives, by violating the speed ordinance, to negligently put themselves in a position where they know they cannot stop in time to avoid injuring a traveler after his peril is, or with ordinary care could have been, discovered, is the same as if they had discovered his peril in time and had negligently failed to act. Defendant's negligence is not to be determined by its ability to avert the danger at the actual rate of speed of forty to forty-five miles per hour when that rate was itself negligence and in violation of the ordinance rate of ten miles per hour. Smith v. Railroad Co., 282 S.W. 64; Goben v. Railroad, 226 S.W. 633, 206 Mo. App. 5; Ruenzi v. Payne, 231 S.W. 294, 208 Mo. App. 113; Mason v. United Rys. (Mo. Sup.), 246 S.W. 318; Sullivan v. Ry., 117 Mo. 214; Murrell v. Ry., 105 Mo. App. 88. (2) Failure to sound bell and whistle is negligence. Allen v. Railway Co., 281 S.W. 742. (3) Locomotive operatives in approaching highway crossing within city limits were required to keep constant lookout to discover persons on crossing and had no right to expect clear track. Smith v. Railroad Co., 282 S.W. 62; State ex rel. Wabash Ry. v. Trimble (Mo. Sup.), 260 S.W. 1002. (4) The court erred in refusing plaintiff's instruction in form as requested and in giving same as modified by the court, by striking the words "sounding an alarm or by stopping." The jury was thereby led to believe that defendant's failure to resort to available means in the form of warnings was immaterial under the issues of both the humanitarian rule and primary negligence. Timely warning might have enabled plaintiff to have extricated himself from the danger zone, before the locomotive reached him. Gould v. Railway Co., 290 S.W. 138. All the means at defendant's hands must be used. Allen v. Ry. Co., 281 S.W. 742. (5) The granting of a new trial on the ground that the verdict is against the weight of the evidence is peculiarly in the province of the judge who presided at the trial. His action in this particular will not be interfered with, unless the discretion has been unsoundly or arbitrarily exercised. Iron Mountain Bank v. Armstrong, 92 Mo. 280. The trial judge may weigh the evidence and grant a new trial if he thinks an injustice has been done, where he would not be justified in taking an issue from the jury, and the appellate court is not warranted in interfering with such ruling. Settles v. McGinley, 296 S.W. 848; McCarty v. Transit Co., 192 Mo. 396; Reid v. Insurance Co., 58 Mo. 429. The engineer may not supinely wait until the traveler takes the last step in entering or approaching the zone of danger before acting to avert the impending disaster. His duty to prevent the collision, by all the means at his command, arises upon the first appearance of danger. Burke v. Pappas, 293 S.W. 146. (6) The fact that the engineer and fireman, who knew the facts and in defendant's employ, were present at the trial and did not testify, warrants this court, as it did the trial court, in drawing unfavorable inferences. Smith v. Railroad, 282 S.W. 64; Whitemore v. Express Co., 269 S.W. 657. These unfavorable inferences are: (a) That the train was being run at a high rate of speed, as testified by other witnesses; (b) that no signal by bell or whistle was given as this train approached the crossing, until the engine was within two to three hundred feet of the crossing, and that plaintiff's truck was then on the crossing; (c) that such engineer and fireman were not keeping watch and at their posts ready to give warning or to stop the train at the appearance of danger; (d) that they did not see and observe plaintiff at the earliest opportunity after he moved into danger, oblivious to the same, or then in danger and unable to escape; (e) that they did not, as soon as they might have discovered his peril, warn plaintiff and use every available means to avert the accident. (7) In passing on the demurrer to the evidence the law requires the court to give the plaintiff the most favorable view of the most favorable testimony in the whole case, that of defendant as well as plaintiff. Maginnis v. Railroad, 268 Mo. 667, 187 S.W. 1165; Anderson v. Davis, 284 S.W. 450.

FERGUSON, C.

This is an action for personal injuries sustained by plaintiff and damage to plaintiff's automobile truck and cargo in a collision between one of defendant's trains and said truck when driven by plaintiff upon the crossing of Sherman Avenue over defendant's railroad track, in the city of Springfield, Missouri. The jury returned a verdict for defendant. The trial court sustained plaintiff's motion for a new trial on the ground that the verdict was against the weight of the evidence, and defendant appealed. The appeal went to the Springfield Court of Appeals, being within the jurisdiction of that court. In an opinion by BRADLEY, J., reported at 4 S.W. (2d) 888, the Court of Appeals reversed and remanded the cause with directions to the trial court to reinstate the verdict and enter judgment for defendant thereon, but certified and transferred the case to this court on the ground that the "holding respecting the consideration of prior or antecedent negligence in the application of the humanitarian doctrine is in conflict with the holding of the Kansas City Court of Appeals in Smith v. Railroad, 282 S.W. 62; Ruenzi v. Payne, 208 Mo. App. 113, 231 S.W. 294; Murrell v. Railroad, 105 Mo. App. 88, 79 S.W. 505; and Williams v. Railroad, 149 Mo. App. 489, 131 S.W. 115."

When a cause is transferred by a court of appeals on the ground and in the manner specified by our Constitution (Sec. 6 of the Amendment of 1884 to Art. 6), this court...