Bollinger v. St. Louis-San Francisco Ry. Co.

• Decision Date: 03 February 1934
• Citation: 67 S.W.2d 985,334 Mo. 720
• Parties: Mamie (Lyda) Bollinger v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

67 S.W.2d 985

334 Mo. 720

Mamie (Lyda) Bollinger v. St. Louis-San Francisco Railway Company, Appellant

Supreme Court of Missouri

February 3, 1934

Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge.

Reversed and remanded.

E. T Miller, Henry S. Conrad, L. E. Durham and Hale Houts for appellant.

(1) The questions presented by the appeal. Woodard v. Bush, 282 Mo. 163; Lackey v. Railway, 288 Mo. 147. (2) The court erred in giving plaintiff's Instruction I. There was no evidence that any defective condition of the crossing materially interfered with the progress of the car and no evidence warranting an inference that the car would have cleared but for the claimed defective condition of the crossing. Cooper v. Railway, 117 Kan. 706, 232 P 1024; Porter v. Railway, 199 Mo. 94; Caylor v. Railway, 332 Mo. 851. (3) The court erred in giving plaintiff's Instruction 3. (a) Plaintiff was not entitled to recover in the event of and notwithstanding a finding by the jury that plaintiff got into a position of imminent danger and peril through her own negligence, unless the Kansas last chance doctrine was applicable, and the doctrine was not applicable nor submissible under the evidence in the case. Caylor v. Railway, 332 Mo. 851; Dyerson v. Railroad, 74 Kan. 536, 87 P. 680; Bazzell v. Railroad, 133 Kan. 483, 300 P. 1110; Clark v. Railway, 127 Kan. 1, 272 P. 128; Williams v. Railroad, 122 Kan. 256, 252 P. 470; Mourning v. Railroad, 110 Kan. 417, 204 P. 721; Maris v. Railroad, 98 Kan. 208, 158 P. 6; Coleman v. Railroad, 87 Kan. 193, 123 P. 756; Dunlap v. Railway, 87 Kan. 201, 123 P. 752; Marple v. Railway, 85 Kan. 705, 118 P. 690; Sing v. Railway, 30 S.W.2d 42; Bunton v. Railway, 100 Kan. 168, 163 P. 80; Williams v. Railway, 102 Kan. 268, 97 P. 397; Atkinson v. Lusk, 103 Kan. 446, 173 P. 914; Reeder v. Railway, 112 Kan. 404, 210 P. 1112; Hooker v. Railroad, 134 Kan. 762, 8 P.2d 394; Cooper v. Railway, 117 Kan. 703, 232 P. 1024; Knight v. Railway, 111 Kan. 308, 206 P. 893; Kirby v. Railway, 106 Kan. 163, 186 P. 744; Rathbone v. Railway, 113 Kan. 259, 215 P. 109; Burge v. Railroad, 244 Mo. 101; Rollison v. Railroad, 252 Mo. 540; McGowan v. Wells, 324 Mo. 666; Sevedge v. Railroad, 53 S.W.2d 287. (b) Instruction 3 did not confine the jury to the last chance doctrine but was as broad as the Missouri humanitarian doctrine. Caylor v. Railway, 332 Mo. 851; Marple v. Railway, 85 Kan. 705, 118 P. 690; Coleman v. Railway, 87 Kan. 194, 123 P. 756; Dunlap v. Railway, 87 Kan. 201, 123 P. 754; Maris v. Railway, 98 Kan. 209, 158 P. 6; Williams v. Railway, 122 Kan. 259, 252 P. 470; Clark v. Railway, 127 Kan. 6, 272 P. 128. (4) The court erred in refusing defendant's requested Instruction E. Allen v. Transit Co., 183 Mo. 435; Everhart v. Bryson, 244 Mo. 517; Lackey v. Railway, 288 Mo. 147. (5) The court erred in refusing defendant's requested Instructions G and Q. Allen v. Transit Co., 183 Mo. 435; Everhart v. Bryson, 244 Mo. 517; Sing v. Railway, 30 S.W.2d 42; Lackey v. Railway, 288 Mo. 147.

Frank M. Lowe, B. W. Boley and John D. Wendorff for respondent.

(1) The Kansas statutes and laws control only so far as the substantive rights of plaintiff are concerned; and then only when pleaded the remedial rights or procedure is controlled by the laws of Missouri. Menard v. Goltra, 40 S.W.2d 1053; Byram v. Ry. Co., 39 S.W.2d 376; Noell v. C. R. I. & P. Ry., 21 S.W.2d 937; Gorman v. Merchants' Bridge Term. Ry., 28 S.W.2d 1023, 323 Mo. 662; Jackson v. St. L.-S. F. Ry. Co., 31 S.W.2d 251; Ramey v. Mo. Pac. Ry. Co., 21 S.W.2d 873; Hiatt v. Railroad, 271 S.W. 811, 308 Mo. 77; State of Kansas ex rel. v. U. S. F. & G. Co., 13 S.W.2d 576, 322 Mo. 136; Ruhe v. Buck, 27 S.W. 412, 124 Mo. 183; Barnes v. Webster, 16 Mo. 265; Hefferlin v. Sinsinderfer, 2 Kan. 404; Scudder v. Bank, 91 U.S. 406; C. R. I. & P. Ry. Co. v. Cole, 251 U.S. 54; 31 Cyc. 45; 12 C. J. 486; 2 Mo. Stat. Ann., sec. 806, p. 1057; Laws 1927, p. 156. (a) Defendant did not plead the Kansas last chance doctrine nor that the Kansas last chance doctrine differs from the Missouri last chance doctrine. (b) The rulings of this court in the case of Sing v. St. Louis-San Francisco Ry. Co., 30 S.W.2d 37, growing out of the same collision as this case, are controlling here. McCarter v. Burger, 10 S.W.2d 348; Mills v. Bondurant, 48 S.W.2d 104; Skillman v. Weber, 165 S.W. 1057, 256 Mo. 324. (2) Questions of fact are for the jury to decide and this court will not interfere with the jury's finding of facts. Townsend v. Schaden, Admx., 204 S.W. 1078, 275 Mo. 229; Kneuven v. Berliners Est., 54 S.W.2d 501; Grantham v. Turner, 252 S.W.2d 225. (3) The court did not err in giving plaintiff's Instruction 1 for it correctly stated the law. There was ample evidence to warrant the submission of the defective crossing to the jury. Retarding of the automobile for less than one-half second caused the collision. Sing v. St. L.-S. F. Ry. Co., 30 S.W.2d 41; Anderson v. Asphalt Distributing Co., 55 S.W. 693; Evy v. Davis, 244 S.W. 956; Settle v. St. L.-S. F. Ry. Co., 30 S.W. 126; Torgeson v. Railroad, 124 Kan. 798, 262 P. 564. (4) The court did not err in giving plaintiff's Instruction 3 for it correctly stated the law. Sing v. St. L.-S. F. Ry. Co., 30 S.W.2d 42; Atherton v. Topeka Ry. Co., 107 Kan. 8; Muir v. Ry. Co., 116 Kan, 554. Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 62; Miller, Admr., v. Railroad Co., 54 S.Ct. 172; Scott v. Railway Co., 62 S.W.2d 838. (5) All instructions given for both plaintiff and defendant constitute the law of the case and all must be read together. Rogers v. St. L.-S. F. Ry. Co., 31 S.W.2d 551; Brown v. Davis, 32 S.W.2d 147; Neagle v. Edina, 53 S.W.2d 1081; Kaiser v. Jaccard, 52 S.W.2d 20; St. L.-S. F. Ry. Co. v. King, 50 S.W.2d 102; Hicks v. Vieth, 46 S.W.2d 60; Moran v. Railway Co., 48 S.W.2d 887; Kines v. Jamison, 277 S.W. 972. (6) The court did not err in refusing defendant's Instruction E for it did not correctly state the law. Dingman v. St. Louis Pub. Serv. Co., 52 S.W.2d 586; Anderson v. Asphalt Distributing Co., 55 S.W.2d 696. (7) The court did not err in refusing defendant's Instructions G, Q, C, K and O.

OPINION

Sturgis, C.

This is a suit for personal injuries in which plaintiff recovered judgment for $ 15,000 and defendant has appealed. The case is based on the same essential facts as that of Sing v. St. Louis-San Francisco Railway Company, reported in 30 S.W.2d 37, and involves the same accident. On September 19, 1923, the plaintiff and Clyde Sing were traveling north from Olathe, Kansas, toward Kansas City, Missouri, in a Ford sedan, the highway crossing the double track of defendant some three miles north of Olathe at Pleasant View. In crossing from the west to the east side of the railroad the automobile was struck by defendant's passenger train going north towards Kansas City on the east one of the two tracks. Both the highway and the railroad run in the same general direction, north and south, but at this crossing the highway, to one traveling as this car was, turns east and crosses the railroad from the west side to the east side and then proceeds northward. In and by this collision the automobile was completely demolished and Sing, the driver, was killed and this plaintiff, riding with him on the front seat, was severely and permanently injured. Sing's widow was plaintiff, suing for his death, in the Sing case, supra, and this plaintiff is the Miss Lyda mentioned in that case as the chief witness, and she here sues for her own injuries received at the same time and place. The facts connected with the accident then and now in controversy are stated at some length in the Sing case, supra, to which the reader is referred, and need not be again restated in detail. The witnesses are the same in this trial as in that one and give substantially the same evidence, much of it being read from the record in that case. The pleadings are also substantially the same, the grounds of negligence alleged on defendant's part being (1) that the railroad crossing where the accident occurred was rough, uneven and defective, in violation of the Kansas statute, where the accident occurred; (2) that defendant failed to sound the whistle as required by the Kansas statute on approaching this crossing; (3) that defendant violated the last chance doctrine. The defendant filed a general denial and pleaded contributory negligence on plaintiff's part. Both parties concede that the case is governed by the substantive law of Kansas, where the injuries occurred, and each pleaded certain relative statutes and decisions of that state. The trial court overruled the defendant's demurrer to the evidence and submitted the case to the jury on separate instructions covering each of the grounds of negligence mentioned.

The statute of Kansas, pleaded and put in evidence, requires railroad trains on approaching crossings of public highways to sound at least three blasts of the whistle a quarter of a mile from the crossing. Defendant concedes that the evidence is conflicting as to whether the train in question did so on the morning when this collision occurred and "concedes that there was some evidence authorizing the submission to the jury of the issue whether the train whistled." Unless plaintiff was guilty of contributory negligence as a matter of law, this authorized a submission of the case to the jury. On the question of plaintiff's contributory negligence, in that she and her companion, Sing, who did the driving, drove on this railroad crossing immediately in front of the on-coming train, the plaintiff admitted that there was an unobstructed view of a straight track for a half mile south of this crossing, and as the highway was substantially parallel with the railroad till it turned east to make the...