Benfield v. Thompson

• Decision Date: 25 March 1940
• Docket Number: No. 6080.,6080.
• Citation: 139 S.W.2d 1009
• Parties: BENFIELD v. THOMPSON.
• Court: Missouri Court of Appeals

139 S.W.2d 1009

BENFIELD v. THOMPSON.

No. 6080.

Springfield Court of Appeals. Missouri.

March 25, 1940.

Rehearing Denied May 15, 1940.

Appeal from Circuit Court, Jasper County; Wilbur J. Owen, Judge.

"Not to be published in State Reports."

Action by Anna Benfield against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, for personal injuries allegedly received by plaintiff when an automobile in which plaintiff was riding overturned near a railroad crossing. From a judgment for plaintiff, defendant appealed and a motion was made by plaintiff to add a penalty to the judgment on the ground that the appeal was frivolous.

Judgment affirmed and motion overruled.

Thomas J. Cole, of St. Louis, and David E. Blair, of Joplin, for appellant.

T. C. Tadlock, Kelsey Norman, Alfred K. Lee, and Henry Warten, all of Joplin, for respondent.

SMITH, Judge.

This action was commenced in the Circuit Court of Jasper County, Division No. 1, at Carthage. The action was first tried in that division and resulted in a hung jury, plaintiff then took a change of venue and said action was transferred to Division 2 of said court, at Carthage. Thereafter the action was transferred to Division 2 of said court at Joplin and, on second trial to a jury on January 16th, 17th and 18th, 1939, resulted in a verdict for plaintiff in the sum of seven thousand dollars, and, after unsuccessful motion for new trial, defendant was granted an appeal to this court.

The petition alleged in substance that defendant left an abandoned railway crossing in a rough and unguarded condition causing injury to the plaintiff below. The answer of appellant was a general denial, after admitting the trusteeship of appellant. There is no controversy as to the incorporation in Missouri of the Missouri Pacific Railroad Company, or that appellant, as trustee of said railroad company, was then and still is operating all of the lines of said railroad company, and appellant does not claim that the crossing mentioned in the evidence was guarded in any way. It was the contention of defendant that there was nothing at said crossing to require guards of any sort.

The evidence shows that on November 23, 1936, plaintiff was riding in an automobile with one W. S. Pilkenton, who has a suit growing out of the same alleged accident, pending against the Missouri Pacific Railroad Company, or its trustee. This automobile was being driven by Pilkenton from Joplin, Missouri, to Aroma, Missouri, and said automobile overturned at the side of the highway south of an old railroad crossing in said highway, and plaintiff was injured by such overturning of said automobile.

The crossing was in Highway 16, sometimes referred to by the witnesses as Highway H. Highway 16, or H, was a gravel highway connecting with paved U. S. Highway No. 60, before said paved highway entered the town of Granby, Missouri, from the west. The crossing in question was about a mile south of U. S. Highway No. 60, and in Highway 16, or H, and was about a mile and a half or two miles southwest of Granby.

On Friday, November 20th, an extra gang of railroad laborers, under Foreman Laird, approached this crossing from the east and found it impassable, on account of disuse and grading over it, to get a hand car or motor car over it, and these men did some work at the crossing so that they could get the hand car across the graveled road. After doing work on this crossing, this gang of laborers commenced the work of taking up rail and probably some ties, to the southwest of the crossing, and were working toward the crossing, but about a quarter mile from it, at the time of the alleged accident at the crossing, and, on account of the distance and the presence of intervening obstructions, did not see the alleged accident at all.

Apparently no one saw the accident to plaintiff and said Pilkenton, except plaintiff and Pilkenton. Plaintiff's witnesses testified that said crossing was very rough; while the extra gang, and some of the outside witnesses living in the neighborhood, testified that said crossing was not rough, and there was testimony which showed that many automobiles passed over the crossing, some of them at high speeds, between the time that the extra gang did some work on the crossing on Friday evening and the time of the alleged accident about noon on Monday following. There is no controversy that no lights, guards or any warnings were installed at or near said crossing. This was a public highway and much used by the travelling public in automobiles and other vehicles.

There was quite a difference of opinion on the part of the witnesses as to the condition of this crossing at the time of the accident. Practically all of the witnesses for both sides said that some gravel and dirt had been removed from the crossing so that the hand car could be pushed across the highway on the rails of the old railroad. Several witnesses for the plaintiff testified that from four to eight inches of gravel and dirt had to be removed down to each of the rails so that the hand car could be pushed across the highway. Some of these witnesses said that in digging down, there was caused ditches over each of the iron rails which made two ditches across the highway, the distance apart being the width of the distance the railroad irons were apart. Several witnesses testified to this condition of the highway. On the other hand, several witnesses for the defendant testified that not nearly so much dirt was removed and not nearly so deep ditches were dug. Some of these witnesses said that not more than an inch in depth of the dirt and gravel was removed. It was the contention of the plaintiff that this bad condition of the road was what caused the car in which she was riding to get from under control and turn over and injure her.

We think there is no question but that the evidence was sufficient to make the condition of the crossing a question of fact for the jury and the trial court, as well as the injury to the plaintiff.

The last paragraph of appellant's statement is as follows: "The errors complained of are the abuse by the trial court of his ordinary discretion in regard to cross examination; and error in giving and refusing instructions. No complaint is made of the size of the verdict, if plaintiff was entitled to recover against defendant at all."

The appeal is presented to us under three assignments of error. The first of these is as follows: "1. The trial court erred in refusing defendant below the right to show on cross examination, that divorce proceedings were instituted and pleadings were filed against plaintiff's star witness Pilkenton, which pleadings made most serious charges against said Pilkenton, affecting his character, and that he totally disregarded such charges, made no denial thereof, and, by his silence and in effect, admitted such allegations, contained in such petitions, to be true."

When W. S. Pilkenton, referred to in the above assignment as "plaintiff's star witness", was on the stand and being cross-examined, he was asked about certain allegations in two divorce petitions in suits against him...