Alexander v. St. Louis-San Francisco Ry. Co.

• Decision Date: 20 January 1928
• Docket Number: No. 4406.,4406.
• Citation: 4 S.W.2d 888
• Parties: ALEXANDER v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

4 S.W.2d 888

ALEXANDER v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 4406.

Springfield Court of Appeals. Missouri.

January 20, 1928.

Rehearing Denied April 7, 1928.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by A. C. Alexander against the St. Louis-San Francisco Railway Company. Verdict for defendant, and from the court's order sustaining plaintiff's motion for a new trial, defendant appeals. Reversed and remanded with directions.

E. T. Miller, of St. Louis, and Mann & Mann and J. W. Miller, all of Springfield, for appellant.

Schmook & Sturgis, of Springfield, for respondent.

BRADLEY, J.

Plaintiff's truck which he was driving was struck on a crossing in the city of Springfield, Mo. He sued to recover for personal injury and for damages to the truck and cargo. The cause was tried to a jury resulting in a verdict for defendant. The court sustained a motion for a new trial, and defendant appealed.

The petition alleged: (1) The breach of a city ordinance limiting the speed of trains to 10 miles per hour; (2) failure to give the statutory signals; (3) failure to keep a proper lookout; and (4) a breach of the humanitarian rule. The answer was a general denial and a charge of contributory negligence. The plea of contributory negligence is based upon the alleged failure of plaintiff to observe the care required of him in approaching a railroad crossing and the alleged breach of a city ordinance requiring all vehicles to come to a complete stop before proceeding across the street where the collision occurred. The cause went to the jury on all the alleged grounds of negligence.

The motion for a new trial was sustained on the ground that the verdict was against the weight of the evidence. Plaintiff contends that the action of the court in granting a new trial should be sustained on the ground given by the court, and also that such action can be sustained on the action of the court in modifying his instructions 3 and 7. Also it contended that the granting of the new trial can be sustained on the refusal of the court to sustain plaintiff's challenge for cause of a juror. There is nothing in the record before us pertaining to the voir dire examination except what appears in the motion for a new trial and the motion does not prove itself.

It is contended by defendant that the humanitarian doctrine cannot, under the facts, be invoked, and that the record shows that plaintiff was guilty of contributory negligence as a matter of law, and that therefore he cannot recover, and that the granting of a new trial cannot be sustained on any theory.

There was substantial evidence tending to establish all of the allegations of primary negligence, hence the chief questions here for determination are: (1) Does the record show that plaintiff was, as a matter of law, guilty of contributory negligence? And (2) may the humanitarian doctrine be invoked?

The collision occurred at the intersection of Sherman avenue and George street in the city of Springfield, Mo. Sherman avenue runs north and south and George street runs east and west. The railroad tracks at the intersection run northeast and southwest. The collision occurred about 7:15 a. m. November 19, 1926. The train was a passenger train and approached the crossing from the northeast running about 40 or 45 miles per hour. Plaintiff was delivering milk and was driving a Ford truck which was about 10 feet in length, and approached the crossing on Sherman avenue from the north. There is a store on the west side of Sherman avenue between 50 and 60 feet north of the track. Plaintiff delivered milk to this store, and for this purpose he stopped his truck, according to his evidence, a short distance south of the store and 27 feet north of the north or nearest rail of the track. Carl Akers, a young man, was accompanying plaintiff, and was assisting in delivering milk. The helper, Akers, got off the truck north of the store to deliver milk, and plaintiff delivered at the store. When they started up, after delivering at the store and other nearby places, Akers cranked the engine and stepped on as the truck moved past him. Plaintiff drove in low from the starting point south of the store and at a rate of 3 or 4 miles per hour until he reached the point of collision, and, according to his evidence, did not see nor hear the approaching train until the front wheels of his truck were at or just over the north rail. Plaintiff on discovering the approaching train "shoved on the gas" and attempted to clear, but did not quite succeed. The engine struck the rear left corner of the bed of the truck, "right back of the back wheel," and resulted in the damage sued for. Six hundred feet northeast of the crossing the railroad track curves to the left and north, and an approaching train cannot be seen from the 27-foot point, nor from that point to the track until the engine passes around the curve. There was grade from the point where plaintiff started up all the way to the track. Plaintiff's own version of the facts are as follows:

"When I stopped 27 feet back there and when I started up on the crossing, I was on the grade; the grade goes on over the track. As I approached the track after I started up, I would go upgrade until I got up across the track; it comes on a level. The truck was loaded with milk; I had 24 cases of milk besides my can milk. When we were ready to start, the boy cranked the car; I was in the seat of the truck when he cranked it. The boy just stepped from in front of the truck and stepped on as I went by him. I looked up the track. You can see a railroad engine from the point there where I started up looking east on that track something like 600 feet. I went up there and measured it since then with a line. You can't see the engine before it would reach that point on account of a curve up there, and then there are buildings and trees, shrubbery, and things like that. As I went on the track I looked in a northeast direction, the way the train was coming. The truck curves north as you look up the track. I looked and there wasn't any train in sight. The train at that point would be traveling downgrade as it came towards that crossing; downgrade most all the way. After I looked and listened, I then went on and proceeded to cross the track. Just as I entered the track, the train came around there in sight. As I went towards the track, I was just getting started, I had a load—I had the truck in low and was getting started; I really didn't have any speed to speak of. When I reached the north rail, that would be the nearest one to me, I wasn't going over 3 or 4 miles an hour, something like that; I really had no speed. When I first discovered there was a train coming, I was just over the first rail, just on the track far enough that I couldn't stop. I either had to back up or go on; I tried to get across and the train struck me. When I saw the train coming, I could not have stopped before I got on the track; I had entered the track. The front end of my truck was over the rail. I jerked my gas down and pressed hard on the foot lever, shoved on the gas. I had to let it in high; I didn't have power enough to put it in high; the low rate of speed I was going, if I had thrown it in high, I would have killed my engine. I was still in low. I throwed the lever down and held it in low with my foot. I had increased my speed before I got across. After I discovered the train was coming, I held it in low; it wouldn't hardly pick up any; it might possibly have picked up a little."

Carl Akers, plaintiff's helper, was a witness for plaintiff, and his evidence in the main was similar to that of plaintiff. Other witnesses corroborated plaintiff in some matters, but not in all.

Defendant's version of the facts is about as given by its witness Paul Adams, who testified as follows:

"I remember the circumstance of an accident out here at the Sherman street crossing when Mr. Alexander's truck was struck by a Frisco train. At that time I was standing right by the truck. I was right there when it happened. Mr. Alexander, when I first saw him that morning, was in the store, and Mr. Alexander's boy was coming down the street and his truck was in front of the store. I was coming right up Sherman street from the south and going north toward the store. I stopped there and talked with Mr. Alexander's boy while Mr. Alexander was in the store. We was standing there talking and Mr. Alexander came out and got on the truck and started off. This truck was a little bit north where the driveway comes out of the house; it was standing right there, about the north corner of the store. I think Alexander cranked the truck and he drove it. He got on the truck and started off. I heard the train whistle and looked up, and the train was just coming around the curve as he started off, and as he started off I hollowed at him three or four times. He kept driving; he never heard it. The train come on and kept whistling; it was whistling when it hit him. As Alexander got in the truck and started off, it whistled as it come around the curve. When he started I looked up and saw the train when he started off, and I yelled at him but he didn't hear me; he kept going. He just drove off in a slow rate of speed. They weren't paying attention to me yelling at them. If Mr. Alexander ever looked to see if a train was coming, I never saw him if he did; I couldn't say; I think I could have seen him if he had looked. The train was there; I could see it. I was standing back there where the truck started from. Between that point and the crossing, from that place where the truck was standing out to the crossing, there was not any new obstruction came in to keep one from seeing just what I could see back there. I think they could see further around the curve the closer to the crossing they got. I heard the train when it whistled at the boulevard. At that time Akers was standing there with me, and Alexander was coming out of...