Bebout v. Kurn

• Citation: 154 S.W.2d 120,348 Mo. 501
• Decision Date: 25 September 1941
• Docket Number: 37214
• Parties: Minnie R. Bebout, Curatrix of the Estate of Jo Ann Davis, a minor, v. James M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company, a Corporation, Appellants
• Court: Missouri Supreme Court

154 S.W.2d 120

348 Mo. 501

Minnie R. Bebout, Curatrix of the Estate of Jo Ann Davis, a minor, v. James M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company, a Corporation, Appellants

No. 37214

Supreme Court of Missouri

September 25, 1941

Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.

Reversed and remanded.

E G. Nahler, Mann & Mann and Ray Bond for appellants.

(1) The demurrer to the evidence should have been sustained. The evidence is insufficient to warrant the finding that the collision could have been averted by reducing the speed of the train after the peril became apparent to the enginemen. Stark v. Berger, 125 S.W.2d 870. No duty to act upon the part of the enginemen arose until the deceased was actually in a place of imminent peril and was oblivious thereof, or until his obliviousness would become reasonably apparent to the enginemen. Hilton v. Terminal Ry Assn., 137 S.W.2d 520; Buehler v. Festus Merc. Co., 119 S.W.2d 961; Pogue v. Kurn, 140 S.W.2d 13. By "place of imminent peril" is not meant a place wherein there is a mere bare possibility of an injury occurring, it means a place wherein there is certain danger. Branson v. Abernathy F. Co., 130 S.W.2d 562; Wallace v. St. Joseph Ry., L., H. & P. Co., 336 Mo. 282, 77 S.W.2d 1011; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014; Ziegelmeier v. East St. Louis & S. Ry. Co., 330 Mo. 1013, 51 S.W.2d 1027; Ridge v. Jones, 71 S.W.2d 713. The evidence was wholly insufficient to warrant the finding that a warning by whistle was not given, or that the failure to give an emergency warning was the proximate cause of the collision. (2) The witness, C. B. Toles, was not qualified to testify as an expert on the distance within which the train could be stopped at a given rate of speed, and his testimony on that question constituted reversible error. Irwin v. St. Louis-S. F. Ry. Co., 325 Mo. 1019, 30 S.W.2d 56; Marshall v. K. C. Ry. Co., 205 S.W. 971; Robertson v. Wabash, St. L. & P. Ry. Co., 84 Mo. 119; Gourley v. St. Louis-S. F. Ry. Co., 35 Mo.App. 87; Lynch v. Chicago & A. Ry. Co., 208 Mo. 1; Culbertson v. Met. St. Ry. Co, 140 Mo. 35. (3) Plaintiff's Instruction 1 is erroneous, in that (a) The instruction submits an allegation of negligence not pleaded. The specific allegation of negligence was the failure to avert the collision "by slowing down said train," while the instruction submitted the failure to stop the train. The instruction is, therefore, broader than the issues raised by the pleadings. State ex rel. Central C. & C. Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Gandy v. St. Louis-S. F. Ry. Co., 44 S.W.2d 634; Engle v. St. Joseph R., L., H. & P. Co., 44 S.W.2d 175; Rishel v. Kansas City Pub. Serv. Co., 129 S.W.2d 851; Budd v. Budd, 97 S.W.2d 149; Bach v. Ludwig, 109 S.W.2d 724; Kliethermes M. Co. v. Coal M. S., 102 S.W.2d 819. (b) It assumes and does not require the jury to find a fact essential to plaintiff's right of recovery, namely that the negligence hypothecated was the proximate cause of the collision. Dunsmore v. Hartmann, 256 S.W. 1031; Lackey v. United Rys. Co., 288 Mo. 120, 231 S.W. 956; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Blackwell v. Union Pac. Ry. Co., 331 Mo. 34, 52 S.W.2d 814; Schubert v. American Press, 19 S.W.2d 472. (c) The causal connection between the negligence and injury being a necessary element of plaintiff's case, the omission of that element in an instruction attempting to cover the entire case and directing a verdict is not cured by any other instruction given in the case. Connole v. East St. Louis & S. Ry. Co., 102 S.W.2d 581; Hall v. Manufacturers C. & C. Co., 260 Mo. 351. (4) Plaintiff's Instruction 2 was erroneous, in that: (a) It assumes and does not require the jury to find a fact essential to plaintiff's right of recovery, namely, that the negligence hypothecated was the proximate cause of the collision. Cases under Points 3 b, c. (b) It authorized a verdict for plaintiff if the jury found that the enginemen, after discovery of the peril, failed to sound "an emergency warning with the whistle." The evidence was wholly insufficient to warrant the finding that a warning whistle was not sounded. The facts do not bring this case within the rule that an issuable fact is presented where witnesses, hearing no whistle, testified that they were listening and were in a position to hear, and would have heard, the whistle if sounded. Reid v. Schaff, 210 S.W. 85; Rollison v. Wabash Ry. Co., 252 Mo. 525. Several witnesses testified to numerous whistle signals having been given. The last of these was still being sounded when the engine passed the station and until the engineer released the whistle cord in order to apply his brakes. The jury may have believed this testimony and yet were required to find a verdict for the plaintiff because no "emergency warning" was sounded. The instruction does not require the jury to find that no whistle signal was sounded. It ignores the testimony that these signals were given and erroneously assumes that the signals given were insufficient and that an additional or different type of whistle signal was required, without requiring the jury first to find that the signals given were not reasonably adequate. Camp v. Kurn, 142 S.W.2d 772; Blackwell v. Union Pacific Ry. Co., 52 S.W.2d 814. (5) Plaintiff's Instruction 3 providing that the negligence, if any, of the driver of the automobile could not be imputed to Jo Ann Davis was erroneous in that it submitted a false issue where, as here, the case was submitted solely under the humanitarian negligence theory. Sillman v. Munger L. Co., 329 Mo. 235, 44 S.W.2d 159; Smithers v. Barker, 111 S.W.2d 47; Crews v. Kansas City Pub. Serv. Co., 111 S.W.2d 54; Wolfson v. Cohen, 55 S.W.2d 667; Schultz v. Smercina, 318 Mo. 486, 1 S.W.2d 113; Willbauck v. Chicago, R. I. & P. Ry. Co., 332 Mo. 1165, 61 S.W.2d 336; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Borgstede v. Waldbauer, 88 S.W.2d 373. This instruction is further erroneous for the reason that it is in conflict with defendants' sole cause Instruction 10, and was confusing and misled the jury on that issue. (6) The giving of plaintiff's Instruction 6 on the duty of the defendants to keep "a careful lookout for persons on, near or approaching said crossing" constitutes reversible error for the reasons: (a) The failure, if any, to keep a lookout is an act of primary negligence only, and not being an issue under the humanitarian theory this instruction injected into the case a foreign and prejudicial issue. Mayfield v. K. C. So. Ry. Co., 337 Mo. 79, 85 S.W.2d 116; State ex rel. Brosnahan v. Shane, 126 S.W.2d 1193. (b) If, as we deny, it is proper in a humanitarian negligence case occurring at a public crossing to instruct the jury as to the duty of the enginemen to keep a lookout, which fact is sufficiently covered by plaintiff's instructions 1 and 2, the giving of this instruction constituted reversible error because it broadened the issues properly to be submitted in a humanitarian negligence case, by requiring the enginemen to keep "a careful lookout for persons on, near or approaching said crossing." The failure to discover the automobile "near or approaching" the crossing was not a breach of any duty in this case because the automobile and its occupants when in such position were not in a place of imminent peril. Hilton v. Term. Ry. Assn., 137 S.W.2d 520; Buehler v. Festus Merc. Co., 119 S.W.2d 961; Pogue v. Kurn, 140 S.W.2d 13.

Kelsey Norman, Alfred K. Lee and Henry Warten for respondent.

(1) The demurrer to the evidence was properly overruled. Waterfield v. Wabash R. Co., 190 S.W. 981. (2) Plaintiff's witness, C. B. Toles, was qualified to testify as an expert on the distance within which the train could be stopped at a given rate of speed. Robinson v. Chicago Great Western Ry. Co., 66 S.W.2d 180, 185. (3) Respondent's Instruction 1 was not erroneous because the instruction did not require the jury to find that the negligence hypothesized was the proximate cause of the collision. State ex rel. Met. St. Ry. Co. v. Ellison, 208 S.W. 443. (4) Plaintiff's instruction could not have possibly been erroneous for directing a recovery for plaintiff if the jury found that the enginemen, after discovery of the peril, failed to sound "an emergency warning with the whistle." Zumwalt v. Chicago & A. Ry. Co., 266 S.W. 717; Rollison v. Railroad Co., 252 Mo. 538; Allen v. Chicago, B. & Q. Ry. Co., 281 S.W. 737; Hinzeman v. Railroad, 199 Mo. 65; Murrell v. K. C., St. L. & C. Ry. Co., 279 Mo. 111; Rice v. St. Louis-S. F. Ry. Co., 52 S.W.2d 746. (5) Respondent's Instruction 3, was not error because it informed the jury that the negligence of the driver of the automobile could not be imputed to respondent's ward, Jo Ann Davis. Crews v. Kansas City Pub. Serv. Co., 111 S.W.2d 54; Carney v. Chicago, R. I. & P. Ry. Co., 323 Mo. 470, 23 S.W.2d 993; Watts v. Moussette, 84 S.W.2d 487; Boland v. Railroad, 284 S.W. 141; Peppers v. St. Louis-S. F. Ry. Co., 295 S.W. 757. (6) Enginemen are required at public highway crossings to keep a continuous lookout, and at such public highway crossings the humanitarian rule has been extended to discoverable, as well as discovered peril. Womack v. Mo. Pac. Ry. Co., 88 S.W.2d 368.

OPINION

Ellison, J.

Respondent's ward, Jo Ann Davis, six years old was injured while riding in an automobile with her grandparents, Mr. and Mrs. Bowler and her aunt, when the same was struck by appellants' westbound passenger train, the Blue Bonnet, at a public road crossing in Strafford in Greene County, on September 11, 1937, about dusk. All the other occupants of the automobile were killed. The train had just passed eastbound passenger train, the Will Rogers. The...