Ashby v. Illinois Term. R.R. Co.

• Decision Date: 07 November 1939
• Docket Number: No. 24924.,24924.
• Citation: 132 S.W.2d 1076
• Parties: RAY ASHBY, RESPONDENT, v. ILLINOIS TERMINAL RAILROAD COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

132 S.W.2d 1076

RAY ASHBY, RESPONDENT, v. ILLINOIS TERMINAL RAILROAD COMPANY, A CORPORATION, APPELLANT.

No. 24924.

St. Louis Court of Appeals, Missouri.

Opinion filed November 7, 1939.

Motion for rehearing denied November 21, 1939.

Writ of certiorari quashed November 9, 1940.

Appeal from the Circuit Court of City of St. Louis. — Hon. Wm. S. Connor, Judge.

REVERSED AND REMANDED.

Frederick W. McCoy and Moser, Marsalek & Dearing for respondent.

(1) That plaintiff may have been a trespassor guilty of contributory negligence constitutes no defense because defendant's motorman is chargeable with actual knowledge of plaintiff's peril and while plaintiff was in such peril, the motorman started the car forward and struck plaintiff. Bobos v. Krey Packing Co., 317 Mo. 108, 117; Gray v. Columbia Terminals Co., 331 Mo. 73, 83; Philips v. Henson, 326 Mo. 282, 293; Menard v. Goltra, 328 Mo. 368, 387; Whitehead v. Railway Co., 99 Mo. 263, 269. (a) In Missouri, under the humanitarian doctrine, the failure to exercise care after imminent peril arises constitutes wantonness, wilfulness and recklessness. Cox v. Terminal R.R. Assn., 331 Mo. 910, 914. (2) Plaintiff went upon the track pursuant to the invitation and direction of defendant's motorman and he therefore was not a trespasser, nor was he guilty of contributory negligence as a matter of law. (a) The act of the motorman in directing and inviting plaintiff to get on the track, for the purpose of reaching and boarding the car, was done in the scope of the motorman's employment and the jury was justified in so finding. 39 C.J. 1282; Hinkle v. C.B. & Q.R. Co. (Mo.), 199 S.W. 227; Whiteaker v. Railroad, 252 Mo. 438, 457; Whitehead v. Railway, 99 Mo. 263, 271; Haehl v. Wabash Railroad Co., 119 Mo. 325, 339; Maniaci v. Express Co., 266 Mo. 633; Goebel v. United Rys. Co. (Mo. App.), 181 S.W. 1051, 1053; Nolan v. Railroad, 250 Mo. 602; Sturgis v. K.C. Rys. Co., 228 S.W. 861; Dorton v. K.C. Rys. Co., 204 Mo. App. 262, 224 S.W. 30; Gray v. Phillips Bldg. Co. et al., 51 S.W. (2d) 181, 184; Clack v. Electrical Supply Co., 72 Mo. App. 506; Houck v. C. & A. Ry. Co., 116 Mo. App. 559, 564. (3) (a) Since the jury found that the motorman directed plaintiff to go upon the eastbound track, there is no question of his knowledge involved. Armstrong v. Kroger Gro. & Bkg. Co. (Mo. App.), 78 S.W. (2d) 564, 570; English v. Sahlender (Mo. App.), 47 S.W. (2d) 150, 154; Murphy v. Fidelity Nat. Bank, etc., 226 Mo. App. 1181, 49 S.W. (2d) 668, 671. (b) Contributory negligence constitutes no defense where the recovery is based on a violation of the humanitarian doctrine Rodabaugh v. Williford (Mo.), 116 S.W. (2d) 118; Wolfson v. Cohen (Mo.), 55 S.W. (2d) 677; Pence v. K.C. Laundry Service, 332 Mo. 930, 59 S.W. (2d) 633; Favorite v. Bethel, 227 Mo. App. 645, 55 S.W. (2d) 702. (c) Defendant cannot complain that the word "negligently" was not defined in plaintiff's Instruction No. 1 because defendant failed to request an instruction defining that term. Scott v. K.C. Public Service Co. (Mo. App.), 115 S.W. (2d) 518, 525; State v. Garrett, 285 Mo. 279, 226 S.W. 4; Kneezle v. Scott Co. Milling Co. (Mo. App.), 113 S.W. (2d) 817; Chavaries v. Insurance Co. (Mo. App.), 110 S.W. (2d) 790.

Anderson, Gilbert, Wolfort, Allen & Bierman for appellant.

(1) The demurrers to the evidence offered by defendant should have been given and read to the jury and the jury instructed to return a verdict in favor of the defendant. (a) Because there is no evidence in the record sufficient to submit the issue of defendant's negligence to the jury. Elkin v. St. Louis Public Service Co., 335 Mo. 951. (b) Because the evidence shows that plaintiff was guilty of contributory negligence as a matter of law. Speaks v. Met. St. Railway Co. et al., 179 Mo. App. 311; Laun v. St. L.S.F.R.R. Co., 216 Mo. 563; Archer v. Union Pac. R.R. Co., 110 Mo. App. 349; Dyrcz v. Mo. Pac. Ry. Co., 238 Mo. 33; Jones v. Baltimore & Potomac R.R. Co., 95 U.S. 418, 24 L. Ed. 507-508; Heaton v. K.C.P. & G. Ry. Co., 65 Mo. App. 479; Clark v. City of Seattle, 252 Pac. 100; Tiers v. Pa. R.R. Co., 292 Pac. 522; Gunderman v. Railroad, 58 Mo. App. 370; Scrivner v. Railroad, 260 Mo. 421; Peters v. Milwaukee Ry. & Light Co., 259 N.W. 724; O'Donnell v. Railroad, 197 Mo. 110, 118; Rogers v. Packing Co., 185 Mo. App. 109; Hickman v. Railway Company, 180 Mo. App. 433; Smith, Admr., v. Ozark Water Mills Co., 215 Mo. App. 138; Crane v. Exhibition Co., 168 Mo. App. 301; Bonanomi v. Purcell, 287 Mo. 436; Moore v. Kansas City, etc., Railway Co., 146 Mo. 572, 582; Groggin v. Wells, 273 S.W. 1108. (c) Because plaintiff was a trespasser and defendant owed him no duty except not to unlawfully or wantonly injure him. Frye v. St. L., I.M. & So. Ry. Co., 200 Mo. 403; Aufdenberg v. St. L., I.M. & So. Ry. Co., 132 Mo. 565; Oatman v. St. Louis-So. W. Ry. Co., 304 Mo. 38; Hall v. Railroad, 219 Mo. 553; Mayfield v. Kansas City & So. Ry. Co., 85 S.W. (2d) 125. (2) (a) The giving of Instruction No. 1 offered by plaintiff and read to the jury was erroneous in that it was broader than the pleadings, and submitted issues not pleaded. Kuhlman v. Water, Light and Transit Co., 307 Mo. 607, 635. (b) Because it purported to cover the whole case and failed to submit the issue raised by defendant in its answer to the jury. Daniels v. Langensand, 96 S.W. (2d) 919; Alexander v. Hoenshell, 66 S.W. (2d) 168; Wood v. Moore, 48 S.W. (2d) 206. (c) Because "negligently," as used in the instruction, was not defined. There was no guide given the jury as to the degree of care which plaintiff owed defendant. Magrane v. Railway. 183 Mo. 119, 132; Raybourn v. Phillips, 160 Mo. App. 534; Stewart v. St. Louis Pub. Serv. Co., 75 S.W. (2d) 634. (d) The instruction was erroneous for the further reason that it submitted an issue as to whether or not in giving the signal the motorman was acting within the scope of his authority. The instruction in so doing went further than the pleadings, was broader than the pleading, and submitted an issue which was not supported by any evidence. Gardner v. Turk, 123 S.W. (2d) 158, 162; Taylor v. Superior Oxy-Acetylene Co., 335 Mo. 379, 382, 73 S.W. (2d) 186, 187 (1-3), 123 S.W. (2d) 162; Byrnes v. Poplar Bluff Printing Co., 74 S.W. (2d) 20, 26; Banks v. Morris & Co., 302 Mo. 254, 267, 257 S.W. 482; Massman v. Kansas City Pub. Serv. Co., 119 S.W. (2d) 833, 836.

HUGHES, P.J.

This is an action for damages for personal injuries sustained by plaintiff as the result of being struck by one of defendant's cars near the station of defendant on its elevated track at North Market Street and Broadway in the City of St. Louis on the twenty-first day of January, 1937. Upon trial to a jury plaintiff obtained a verdict in the sum of $7500. Judgment was rendered in accordance with the verdict, and defendant appeals to this court.

The defendant maintains parallel tracks on North Market Street elevated above the street; the north track being used for westbound cars and the south track for eastbound cars. Over the intersection of North Market Street and Broadway the top of the concrete viaduct, on which the tracks were laid, is enclosed and the spaces between the rails and tracks filled with concrete and rock to prevent debris or objects falling to the street below. On the north and south side of North Market Street, and beginning about thirty-seven feet west of the west side of the concrete viaduct over the intersection are platforms alongside the tracks and somewhat higher than the tracks for the use of passengers getting on or off defendants' cars. There is no connection between these platforms, the space between the tracks being open. The north platform is for the use of passengers using defendants' westbound cars, and the south platform for those using the eastbound cars, the entrance being from the street by separate stairways. The plaintiff had ridden the defendants' cars before, but from another station and had never before been in the North Market Street station, and did not know that there was a separate stairway leading to the north and south platforms. On the day of his injuries he was intending to take one of defendants' eastbound cars. He went up the stairs that were on the north side of the track which placed him on the north platform which was for the use of westbound cars. He immediately discovered that he was on the wrong platform, and he saw the eastbound car which he wanted to take standing alongside the platform on the south side. The plaintiff testifies that he stepped down from the north platform to a plank alongside the north rail of the track and motioned to the motorman on defendants' car and pointed to the east, and that the motorman nodded his head and pointed toward the viaduct and motioned his finger in that direction. There is no evidence that the motorman again actually saw plaintiff before he was struck by the car. But plaintiff says he proceeded east a distance of about thirty-seven feet to the concrete viaduct; crossed over the viaduct to defendants' eastbound track, and turned facing the car at the platform and walked towards it, in order to reach the south platform and board the car, and the motorman was all this while looking to the south and did not see him. When plaintiff was within about fifteen feet of the front end of the car, the car suddenly started forward striking him and throwing him from the track so that he fell to the street below and received the injuries complained of.

The motorman testifies that he never saw plaintiff at any time on the north platform or near thereto, and that he never signaled or motioned or nodded his head to him, but was at all times facing the south and watching passengers getting on and off the car; and when all the passengers had boarded the car and while looking at the car doors to the south he started the car, and then looked forward and saw plaintiff in the middle of the track about four feet ahead of the car,...