Blackwell v. Railroad Co., 29693.

• Decision Date: 03 September 1932
• Docket Number: No. 29693.,29693.
• Citation: 52 S.W.2d 814
• Parties: FANNIE BLACKWELL v. UNION PACIFIC RAILROAD COMPANY, and F.S. WALBRIDGE, Appellants.
• Court: Missouri Supreme Court

52 S.W.2d 814

FANNIE BLACKWELL v. UNION PACIFIC RAILROAD COMPANY, and F.S. WALBRIDGE, Appellants.

No. 29693.

Supreme Court of Missouri, Division 1.

September 3, 1932.

Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.

REVERSED AND REMANDED.

Watson, Gage, Ess, Groner & Barnett and T.M. Lillard for appellants.

(1) Under the law of Kansas offered in evidence the respondent was guilty of negligence as a matter of law which prevented a recovery and the court should have directed a verdict for defendant. Dyerson v. Union Pacific Railroad Co., 74 Kan. 528, 87 Pac. 680; Railroad Co. v. Summer, 75 Kan. 342; Elizabeth Beach v. Railroad Co., 85 Kan. 90; Cooper v. Railroad Co., 117 Kan. 703; Wehe v. Railroad Co., 97 Kan. 794, 156 Pac. 742; Sharp v. Sproat, 111 Kan. 735; Fair v. Traction Co., 102 Kan. 611, 171 Pac. 649; Kirby v. Railroad Co., 106 Kan. 163, 186 Pac. 744; Knight v. Railroad Co., 111 Kan. 308, 206 Pac. 893; Kessler v. Davis, 111 Kan. 515, 207 Pac. 799; Nagle v. Jones, 115 Kan. 140, 222 Pac. 116; Linbaugh v. Schaff, 114 Kan. 27, 217 Pac. 279; Moler v. Railroad Co., 101 Kan. 280; Bush v. Railroad Co., 62 Kan. 709; Corley v. Railroad Co., 90 Kan. 70, 97 Kan. 247; Young v. Railroad Co., 50 Kan. 144, 106 Kan. 401, 110 Kan. 382. (2) The court erred in giving Instruction 1 given on behalf of plaintiff. This instruction told the jury that if they found "the defendants carelessly and negligently, if so, failed to sound any signal of warning of the approach of said train to said crossing, and if you further find that as the sole and direct result of the negligence and carelessness, if any, of the defendants in failing to sound any signal of warning of the approach of said train or cars to said crossing, if they did so fail to give such warning, the automobile in which plaintiff was riding was struck as it was upon said railroad tracks, if so, and plaintiff was injured thereby then your verdict must be for the plaintiff and against the defendants." This instruction is in conflict with Instruction D-1 given for the defendant which told the jury that if defendants stationed a brakeman in the center of the crossing in question and that said brakeman had a lighted lantern in his hand and moved said lantern in giving signals to the occupants of the Ford roadster at and just prior to the time of the collision and if the said brakeman was in plain sight and view of the plaintiff and other occupants of said Ford roadster in question all of the time said Ford roadster was crossing the series of tracks in question as it approached the place of the collision, then the jury was instructed that under the law the plaintiff had received a sufficient warning of the approach of the box cars in question and they could not find for the plaintiff on the charge of negligent failure to sound warning signals, etc. Under the instruction for plaintiff, the jury was told that they must render a verdict for plaintiff if the defendants failed to sound a signal of warning; while the defendant's instruction told them that if defendants gave a signal by waving a lantern, then the verdict must be for the defendant. These two instructions are absolutely inconsistent. Where instructions are so drawn as to be in apparent conflict, error lies, although both instructions are otherwise proper. Mansur-Tibbits Imp. Co. v. Ritchie, 143 Mo. 613; State ex rel. v. Ellison, 270 Mo. 646; Kuhlman v. Transit Co., 307 Mo. 637; Landon v. Railroad Co., 237 S.W. 497; Ward v. First Natl. Bank, 27 S.W. (2d) 722; Carr v. Auto Supply Co., 239 S.W. 827; Stid v. Railroad Co., 139 S.W. 172.

Jenkins & Vance and Mosman, Rogers & Buzard for respondent.

(1) Plaintiff made a clear case for the jury. The issue of her alleged contributory negligence was for the jury. The evidence viewed most favorably in plaintiff's behalf showed that; (a) she was a passenger in the auto; (b) was keeping a sharp lookout for her own safety; (c) the auto was brought to a stop at the crossing; (d) box cars and an extremely dark and foggy night completely obstructed her view to the west; (e) the signal bell was not ringing; (f) there was no watchman flagging the crossing; (g) there was no light on the train as it was backed across the crossing; (h) no warning of the approach of the train; (i) plaintiff had no knowledge or means of knowledge of the approaching train. Therefore, she was not negligent in failing to discover the approach of the train. Sing v. Railroad Co. (Mo. Sup.), 30 S.W. (2d) 37; Chicago Railroad Co. v. Assman, 78 Kan. 424, 96 Pac. 843; Torgeson v. Missouri K. & T. Railroad Co., 124 Kan. 798, 262 Pac. 564; Scott v. Railway Co., 113 Kan. 477, 215 Pac. 280; Polfer v. Chicago, G.W. Railroad Co., 130 Kan. 314, 286 Pac. 240; Peterson v. Railway Co., 115 Kan. 751, 225 Pac. 116; Bollinger v. Schaff, 113 Kan. 124, 213 Pac. 644; Long v. Railroad Co., 114 Kan. 40, 216 Pac. 1079; Holman v. Railroad Co., 113 Kan. 710, 215 Pac. 1111; Edwards v. Railway Co., 90 Kan. 499, 135 Pac. 562; Railway Co. v. Hansen, 78 Kan. 278, 96 Pac. 668; Smith v. Railroad Co., 91 Kan. 31, 136 Pac. 930; Holland v. Railroad Co., 112 Kan. 609, 212 Pac. 90. In considering the correctness of the ruling upon demurrer, all of the evidence is to be viewed in the light most favorable to plaintiff's contention. Clark v. Atchison & Eastern Bridge Co., 24 S.W. (2d) 143; Neal v. Caldwell, 34 S.W. (2d) 108. No error in the instructions. (2) The instructions are not conflicting. Instructions D-1 and D-6 are explanatory of Instruction P-1, and limit it and are to be construed in connection therewith. All instructions must be read together and as one complete charge. Rudy v. Autenrieth, 287 S.W. 850; Liese v. Meyer, 143 Mo. 547, 45 S.W. 282; Morrow v. Missouri Gas & E. Co., 315 Mo. 367, 286 S.W. 114; Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 279 S.W. 89; Shaw v. M. & K. Dairy Co., 56 Mo. App. 525; Smith v. Southern Ill. & Mo. Bridge Co., 30 S.W. (2d) 1077; Ellingson v. Railroad Co., 60 Mo. App. 679; Rawie v. Railroad Co., 274 S.W. 1031; Oldham v. Standard Oil Co., 15 S.W. (2d) 899. It is not necessary that the instructions completely cover affirmative defenses if such defenses are covered by instructions for defendant. Hiegold v. United Rys. Co., 308 Mo. 142, 271 S.W. 773; Bricker v. City of Troy, 315 Mo. 353, 287 S.W. 341. The instructions, as a whole, correctly expressed the law of this case and the jury was not mislead by any of them. "Where the charge as a whole correctly expresses the law, defects are not grounds for reversal, where the jury were not mislead." Lange v. Railroad Co., 208 Mo. 458, 106 S.W. 660; Hughes v. Railroad Co., 127 Mo. 447, 30 S.W. 127; Neale v. McKinstry, 7 Mo. 129; Noble v. Blount, 77 Mo. 235.

FRANK, J.

Action by plaintiff, respondent here, to recover damages for personal injuries alleged to have been caused by a Union Pacific Railroad train striking an automobile in which plaintiff and others were riding. Plaintiff recovered judgment in the sum of $15,000 and defendant appealed.

We will refer to the parties as plaintiff and defendants.

Defendants' first contention is that the trial court erred in refusing to give their requested instruction in the nature of a demurrer to the evidence.

The events giving rise to this lawsuit occurred at a public railroad crossing in North Lawrence, Kansas. At the place in question six railroad tracks cross a public road known as Victory Highway. The highway runs north and south and is thirty-seven feet wide. The railroad tracks run east and west and cross the highway at practically right angles. These tracks are thirteen feet apart from center to center thus making the length of the crossing from north to south over the six tracks approximately seventy-five feet. The automobile in question was a Ford roadster with only one seat. Plaintiff sat to the right of her brother, Harvey Blackwell, the owner and driver of the car. To the right of plaintiff sat one Mike Seymour who held plaintiff's sister, Helen Blackwell, on his lap. These people were driving north on Victory Highway at about 11:30 o'clock P.M. on a dark, foggy night. As they approached the crossing the automobile was brought to a complete stop about five to eight feet south of the south track, and the occupants of the car looked and listened for a train, and for signals or warnings that might indicate the approach of an oncoming train. Neither seeing nor hearing a train, and not seeing any signals nor hearing any alarm or warning indicating the presence of a train, the driver of the automobile shifted into low gear and proceeded northward, he and the plaintiff looking and listening both east and west for the approach of a train. They crossed the first five tracks in safety and when they reached the sixth track the automobile was struck by a box car attached to the end of a Union Pacific railroad train which was backed westward over the crossing. There were box cars standing on the three south tracks within four feet of the west line of the highway. These box cars obstructed the view to the west until the automobile reached the third track.

Defendants have attached to their brief a blue print showing the highway running north and south, the six tracks crossing the highway east and west, the box cars standing on the three south tracks, the position of the automobile at various points as it proceeded northward, and the points on which the lights of the automobile shone as it proceeded over the crossing. This blue print shows that when the automobile reached the third track from the south, upon which the last string of cars was standing, the lights from the automobile shone upon the north or sixth track at a point four feet west of the west line of the highway. At that time the automobile was thirty-nine feet from the point of collision. On account of the darkness plaintiff could not see beyond the point reached by the lights of the automobile.

Defendants assume that the train and...