Boehrer v. Thompson

• Decision Date: 11 July 1949
• Docket Number: 41143
• Parties: Mabel Boehrer, Administratrix of the Estate of Harry Julius Boehrer, Deceased, Appellant, v. Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, a Corporation, and Peter Schuller, Respondents
• Court: Missouri Supreme Court

222 S.W.2d 97

359 Mo. 465

Mabel Boehrer, Administratrix of the Estate of Harry Julius Boehrer, Deceased, Appellant, v. Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, a Corporation, and Peter Schuller, Respondents

No. 41143

Supreme Court of Missouri

July 11, 1949

Appeal from Circuit Court of City of St. Louis; Hon. Francis E Williams, Judge.

Affirmed.

SYLLABUS

Action for wrongful death. The deceased was a guest in an automobile which was turned onto a railroad right of way by mistake in the dark and was struck by a train. The driver of the automobile was not guilty of willful or wanton negligence under the Illinois guest statute. And the deceased was a trespasser on the right of way, so defendant railroad company was under no duty to give the statutory crossing warnings. Verdicts were properly directed in favor of both defendants.

Cox & Cox and William R. Kirby for appellant.

(1) The court erred in sustaining defendant Peter Schuller's motion for a directed verdict at the close of plaintiff's case. If there is evidence tending to support the charge of willful and wanton conduct, a jury question has been made. Brown v. Illinois Terminal Co., 316 Ill. 326, 150 N.E. 242; Heidenreich v. Bremner, 260 Ill. 439, 103 N.E. 275; McMahon v. Duncan, 314 Ill.App. 235, 41 N.E.2d 301. (2) It is difficult if not impossible to lay down a rule of general application by which it might be determined the degree of negligence the law considers equivalent to a willful or wanton act. Robeson v. Greyhound Lines, 257 Ill.App. 278; Rohrer v. Denton, 306 Ill.App. 325, 28 N.E.2d 572. (3) Whether a personal injury has been inflicted by willful or wanton conduct is a question of fact to be determined by the jury. Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 69 N.E.2d 293; Bernier v. Illinois Central R. Co., 296 Ill. 464, 129 N.E. 747. (4) Willful or wanton injury must have been intentional or the act causing it must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure to discover the danger through recklessness or carelessness when it should have been discovered by the exercise of ordinary care. Brown v. Illinois Terminal Co., 319 Ill. 326, 150 N.E. 242; Walldren Express Co. v. Krug, 291 Ill. 472, 126 N.E. 97; Rohrer v. Denton, 306 Ill.App. 325, 28 N.E.2d 572. (5) It is greatly dependent on circumstances of each case whether the omission to exercise care is so gross that it shows lack of regard of the safety of others. Heidenreich v. Bremner, 260 Ill. 439, 103 N.E. 275; Schachtrup v. Hensel, 295 Ill.App. 303, 14 N.E.2d 897; McCarty v. Bishop, 102 S.W.2d 126. (6) The court must regard the evidence in its most favorable aspect to plaintiff, according plaintiff the benefit of all the evidence which tends to support her rights to recover, together with the benefit of all the favorable inferences to be deduced therefrom. Moore v. East St. Louis & Suburban Ry. Co., 54 S.W.2d 767; Rohrer v. Denton, 306 Ill.App. 325, 28 N.E.2d 572; Cunningham v. Toledo, St. L. & W.R. Co., 260 Ill. 589, 103 N.E. 593. (7) Defendant Schuller cannot be permitted to say that he did not see the railroad tracks, when, if he had properly exercised his faculties of sight, he could have seen it. Thomas v. Buchanan, 357 Ill. 270, 192 N.E. 215; Briske v. Village of Burnham, 379 Ill. 193, 39 N.E.2d 976, affirming 308 A. 531, 32 N.E.2d 349; Dee v. City of Peru, 343 Ill. 36, 174 N.E. 901; Reed v. Lyford, 311 Ill.App. 486, 36 N.E.2d 610; Secrist v. Raffleson, 326 Ill.App. 489, 62 N.E.2d 36. (8) Under Illinois Statute defendant required to have lights on automobile visible 200 feet ahead of motor vehicle. Carroll v. Krause, 295 Ill.App. 552, 15 N.E.2d 323; Johnson v. Gustafson, 233 Ill.App. 216. (9) The evidence was sufficient tending to support the charge of willful and wanton conduct to make a jury question. Paul v. Gorman, 310 Ill.App. 447, 34 N.E.2d 884; White v. Hall, 118 W.Va. 85, 188 S.E. 768; Brandsoy v. Bromeland, 177 Minn. 298, 225 N.W. 162. (10) There is a legal presumption of due care of the deceased which is sufficient to have case submitted to the jury unless contributory negligence affirmatively appears. Harper v. Thompson, 318 Ill.App. 226, 47 N.E.2d 501. (11) The court erred in sustaining defendant Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a corporation, motion for a directed verdict at the close of plaintiff's case. The violation of a duty imposed by statute is prima facie evidence of negligence. Rasmussen v. Wiley, 312 Ill.App. 404, 39 N.E.2d 57; Brown v. Illinois Term. Co., 316 Ill. 326, 150 N.E. 242. (12) Plaintiff's evidence as to defendant's failure to ring the bell or sound whistle was of sufficient probative value to make it an issue of fact for the jury. Knorp v. Thompson, 212 S.W.2d 584; Bulkley v. Thompson, 211 S.W.2d 83. (13) The failure to reduce the speed of train established a question for the jury. Mullis v. Thompson, 213 S.W.2d 941; Rigley v. Prior, 290 Mo. 10, 233 S.W. 828; Dixon v. Wabash R. Co., 198 S.W.2d 395. (14) There is legal presumption of due care of the deceased which is sufficient to have case submitted to the jury unless contributory negligence affirmatively appears. Harper v. Thompson, 318 Ill.App. 226, 47 N.E.2d 501.

Thomas J. Cole and Oliver L. Salter for respondent Guy A. Thompson, Trustee, Missouri Pacific Railroad Co.

(1) The court did not err in sustaining defendant Guy A. Thompson's motion for a directed verdict because: (1) The statutory requirement of Illinois that the engine bell be rung or whistle sounded was enacted solely for the benefit of persons actually using a public crossing and not for the benefit of persons using a railroad right of way as an automobile roadway. Thompson v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 226 Ill. 542, 80 N.E. 1054, 9 L.R.A. (N.S.) 672; Illinois Central Railroad Co. v. Eicher, 202 Illinois 556, 67 N.E. 376; Williams v. C. & A.R. Co., 135 Ill. 491, 26 N.E. 661; Briney v. Illinois Central Railroad Co., 401 Ill. 181, 81 N.E.2d 866. (2) The evidence in the transcript wholly failed to support the allegations in the petition and in plaintiff's statement in her brief that the automobile was struck on a crossing of defendant's railroad. All of the evidence was to the effect the automobile was on our track but not the crossing. (3) While there was evidence that plaintiff's decedent was a passenger in a car that approached "Leber Crossing" there is no proof such crossing was in fact "public." (4) The petition alleges that plaintiff's decedent was in the exercise of due care for his own safety. There was no proof of such fact; the evidence was to the contrary, and the negligence of plaintiff's decedent is of itself sufficient to have required and to justify the court's action in sustaining this defendant's motion for a directed verdict. Grifenhan v. Chicago Rys. Co., 299 Ill. 590, 132 N.E. 790; Opp v. Pryor, 294 Ill. 538, 128 N.E. 580; Elliott v. Elgin, J. & E. Ry. Co., 59 N.E.2d 486; Illinois Central R. Co. v. Oswald, 338 Ill. 270, 170 N.E. 247; Newell v. Cleveland, C.C. & St. L.R. Co., 261 Ill. 505, 104 N.E. 223; Cox v. Terminal Railroad Assn., 55 S.W.2d 685. (5) The legal presumption that all persons observe the instincts promoting preservation of life has no force when confronted with the slightest evidence of contributory negligence of the deceased. Harper v. Thompson, 318 Ill.App. 226, 47 N.E.2d 501. (6) There is no merit in the assignment in appellant's brief that "The failure to reduce the speed of the train established a question for the jury," because there was no such allegation of negligence in the petition. (7) There was no real evidence of the speed of the train and likewise no evidence of a failure to reduce the speed. (8) Even if such a charge of negligence had been made and proven, it would not justify submission of this case to the jury for the reasons set forth above. Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824; George v. Kansas City So. Ry. Co., 286 S.W. 130; Petty v. St. L. & M.R.R. Co., 179 Mo. 666.

Moser, Marsalek, Carpenter, Cleary & Carter, W. E. Moser and G. W. Marsalek for respondent Peter Schuller.

(1) Peter Schuller could be liable only in the event he had been guilty of willful and wanton misconduct. Illinois Annotated Statutes (Smith-Hurd), Chap. 95 1/2, par. 58a; Bartolucci v. Faletti, 382 Ill. 168, 46 N.E.2d 980. (2) "Willful and wanton misconduct," within the meaning of the Illinois statute, is not "negligence" or even "gross negligence." It is a different type and quality of conduct. (3) To constitute "willful and wanton misconduct" the defendant must act consciously and with awareness that his actions may naturally and will probably result in injury to others. Bartolucci v. Faletti, 382 Ill. 168, 46 N.E.2d 980; Nelson v. Armistead, 372 Ill.App. 184, 63 N.E.2d 648; Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573; Connole v. E. St. L. & Suburban Ry. Co., 102 S.W.2d 581. (4) The trial court must decide whether the evidence justifies submission to the jury of the issue of "willful and wanton misconduct." Greene v. Noonan, 372 Ill. 286, 23 N.E.2d 720; McCarty v. Bishop, 102 S.W.2d 126; Hargis v. Denny, 117 S.W.2d 368; Nelson v. Armistead, 327 Ill.App. 184, 63 N.E.2d 648. (5) In the instant case, there was no evidence sufficient to support submission of the issue of "willful and wanton misconduct," and the trial court correctly declined to submit that issue to the jury. Nelson v. Armistead, 327 Ill.App. 184, 63 N.E.2d 648; Bartolucci v. Faletti, 382 Ill. 168, 46 N.E.2d 980; Harvey v. Clark, 232 Iowa 729, 6 N.W.2d 144; Brown v. Martin, 248 N.W. 368; Conant v. Collins, 90 N.H. 434, 10 A.2d 237, 136 A.L.R. 1266.

OPINION

Douglas, J.

Mabel Boehrer, widow of...