Borrson v. Missouri-Kansas-Texas R. Co.

• Decision Date: 07 June 1943
• Docket Number: 37798
• Citation: 172 S.W.2d 826,351 Mo. 214
• Parties: Alice Borrson, Administratrix of the Estate of Raymond Arthur White, deceased, v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

172 S.W.2d 826

351 Mo. 214

Alice Borrson, Administratrix of the Estate of Raymond Arthur White, deceased, v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

No. 37798

Supreme Court of Missouri

June 7, 1943

Rehearing Denied July 6, 1943.

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Reversed and remanded.

Everett Paul Griffin and Carl S. Hoffman for appellant.

(1) The court erred in overruling appellant's motions to require respondent to elect on which of the two counts in the petition she would rely. Count I of the petition was under Section 3652, R. S. 1939, for negligence in operation of the train. Count II of the petition was under Section 3653, R. S 1939, for negligence in condition and maintenance of the crossing. Said counts are utterly inconsistent and the proof of one disproves the other. Drolshagen v. Union Depot R. Co., 186 Mo. 258; McCall v. Atchley, 256 Mo. 39; Snyder v. Toler, 179 Mo.App. 376. (2) The sole proximate cause of the injury to Raymond Arthur White was the negligence of the parents of said child in driving and permitting the automobile to be driven into the train. Scott v. Kurn, 343 Mo. 1210; Chawkley v. Wabash Ry. Co., 317 Mo. 782; Smith v. Mabrey, 154 S.W.2d 770. (3) There was not sufficient evidence to take the case to the jury on the issue of whether or not statutory warning signals were given. Ingram v. Mobile & Ohio R. Co., 326 Mo. 163; Saunders v. Prue, 151 S.W.2d 478. (4) The court erred in refusing to permit appellant to examine witness LaBarge with reference to a statement made by him at about the time of the accident which impeached the testimony of this witness given at the trial. Chawkley v. Wabash Ry. Co., 317 Mo. 782; Mann v. St. L.-S. F. Ry. Co., 72 S.W.2d 977. (5) The court erred in admitting evidence over appellant's objections by witnesses Ostmann, Gross and Heitgert that the crossing was not protected by crossing bars, crossing bells, automatic flasher lights, crossing watchmen or other protection. Welsch v. Railroad, 72 Mo. 451; Toeneboehm v. St. L.-S. F. R. Co., 317 Mo. 1096; Homan v. Mo. Pac. R. Co., 334 Mo. 61; State ex rel. Kurn v. Hughes, 153 S.W.2d 46. (6) The court erred in admitting evidence over appellant's objections by witnesses Ostmann and Roth that months after the accident they were on Caulk's Hill road near the railroad and did not hear a train whistle. Baker v. Met. Street Ry. Co., 181 Mo.App. 392; Coale v. Hannibal & St. J. R. Co., 60 Mo. 227; Lester v. Kansas City, etc., R. Co., 60 Mo. 265. (7) The court erred in refusing to grant appellant a new trial because of prejudicial conduct of witnesses, evidence and argument by respondent's counsel. (a) In the opening statement to the jury respondent's counsel described in great detail the injuries sustained by deceased and during the course of same turned to respondent and requested her to take the minor children from the court room. (b) Notwithstanding that it was admitted that the baby died as a result of the accident, over objection, the hospital records were admitted which described in great detail the nature of the injuries and the treatment given. (c) Respondent's counsel, in the opening statement to the jury, stated that the purpose of the parents in going to St. Charles was to purchase Christmas gifts for the children. (d) Respondent's counsel, over objection, in the opening statement referred to the fact that the crossing was not protected by crossing gates, watchmen, bells, lights or other signals. (e) Although the suit was for a penalty under the statute, respondent's counsel was permitted to argue that the jury should measure its verdict by the value of a human life. (f) Over objection, respondent was permitted to testify that she had received no payment in the suits brought for the death of the father and mother. Chawkley v. Wabash Ry. Co., 317 Mo. 782; Ullom v. Griffith, 263 S.W. 876; Smith v. St. Louis Southwestern Ry. Co., 31 S.W.2d 105. (8) The court erred in giving to the jury, at the request of respondent, Instruction 8. Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; Lesser v. Ry. Co., 85 Mo.App. 326; Cummins v. K. C. Public Serv. Co., 334 Mo. 672; Grier v. K. C., C. C. & St. J. Ry. Co., 286 Mo. 523. (9) The court erred in refusing Instruction 8, offered by appellant. Murray v. Mo. Pac. Ry. Co., 101 Mo. 236; Reid v. Schaff, 210 S.W. 85. (10) The court erred in refusing Instruction 16, offered by appellant. Welsch v. Railroad, 72 Mo. 451; Toeneboehm v. St. L.-S. F. R. Co., 317 Mo. 1096; Homan v. Mo. Pac. R. Co., 334 Mo. 61; State ex rel. Kurn v. Hughes, 153 S.W.2d 46; Felber v. Union Electric L. & P. Co., 340 Mo. 201; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179; Talbert v. Ry. Co., 314 Mo. 352. (11) The court erred in refusing Instruction 14, offered by appellant. Burge v. Railroad, 244 Mo. 76; Felber v. Union Electric L. & P. Co., 340 Mo. 201; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179; Talbert v. Ry. Co., 314 Mo. 352.

B. Sherman Landau for respondent.

(1) There was no inconsistency between the two counts of plaintiff's petition. Count I alleged negligent operation of the train; Count II alleged negligent failure to properly safeguard the crossing. Proof of one would not disprove the other; the two types of negligence could coexist simultaneously. (2) Any claimed inconsistency in the allegations of plaintiff's petition was eliminated by the submission of only one charge to the jury. Pabst v Armbruster, 91 S.W.2d 652; Danklef v. Armbruster, 91 S.W.2d 660; Stark Bros. Nurseries v. Mayhew, 160 Mo.App. 60, 141 S.W. 433; McDonald v. Met. St. Ry. Co., 219 Mo. 468, 118 S.W. 78, 16 Ann. Cas. 810; Rinehart v. Long, 95 Mo. 396, 8 S.W. 559; Gardner v. Crenshaw, 122 Mo. 79, 27 S.W. 612; Ideal Hinge Co. v. Metallic Mfg. Co., 207 S.W. 273. (3) Negligence on the part of the parents of the deceased child, if such negligence had been shown, may not be imputed to the child. Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20. (4) Defendant's failure to sound the crossing signals required by statute was negligence per se. Berry v. Kansas City Pub. Serv. Co., 341 Mo. 658, 108 S.W.2d 98. (5) The testimony of four witnesses in plaintiff's behalf that their hearing was good, there was no obstruction to sound, that they were sufficiently close to have heard a warning signal if sounded, but that they heard none, was sufficient to take to the jury the issue of defendant's negligent failure to sound statutory warning signals. Evans v. Atchison, T. & S. F. Ry. Co., 131 S.W.2d 604; Dodd v. Terminal Railroad Assn., 108 S.W.2d 982. (6) The burden of evidence rested on the railroad to show that its failure to sound the statutory signals did not cause the death. State ex rel. v. Reynolds, 286 Mo. 204, 226 S.W. 564. (7) It must be presumed that the truck would not have been driven into the position where it was struck if the statutory signals had been sounded. Gann v. Chicago, R.I. & P. R. Co., 319 Mo. 214, 6 S.W.2d 39. (8) The court properly rejected the defendant's attempt to introduce evidence of the conversation alleged to have occurred between the witness La Barge and one Gregory four or five minutes after the passage of the train, as such conversation was not admissible under the res gestae rule, Woods v. Southern Ry. Co., 73 S.W.2d 374; and, further, because it violated the hearsay rule. (9) Plaintiff was properly permitted to introduce evidence describing the physical characteristics of the grade crossing, even though such evidence disclosed that the crossing was unprotected. Such evidence was merely cumulative, as photographs introduced into evidence without objection fully advised the jury that the crossing was not provided with any protective device. (10) The court properly permitted the witnesses Ostmann and Roth to testify that ordinary running sounds of a train approaching from the west were inaudible to a motorist in the cut north of the grade crossing. This was admissible as describing the physical characteristics at and surrounding the grade crossing, and was also relevant on the issue of sole negligence of the child's father submitted in defendant's Instruction 3. (11) The court properly ruled on the incidents occurring during the course of the trial in accordance with the sound discretion vested in the court. Incidents assigned in this court as prejudicial were not objected or excepted to at the trial, nor were they assigned as error in defendant's motion for new trial. They have, therefore, not been preserved for review in this court. (12) Plaintiff's Instruction 8, on measure of damages, was proper. Defendant did not ask any instructions as to what the jury might consider in exercising the discretion specified by statute. Sec. 3652, R. S. 1939; Gorman v. Franklin, 117 S.W.2d 289. (13) The court properly refused defendant's Instruction 8 on the weight to be accorded the evidence. State ex rel. v. K. C., Ft. S. & M. Ry. Co., 70 Mo.App. 634; Milligan v. C., B. & Q. R. Co., 79 Mo.App. 393; Johnson v. Springfield Traction Co., 176 Mo.App. 174, 161 S.W. 1193. (14) It is error to instruct the jury as to the weight to be accorded the evidence. Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84; Conduitt v. Trenton Gas & Elec. Co., 326 Mo. 133, 31 S.W.2d 21; Davis v. City of Independence, 330 Mo. 201, 49 S.W.2d 95. (15) The court properly refused defendant's instructions 14 and 16, being withdrawal instructions, as neither the petition nor the assignments of negligence were read to the jury, nor were the assignments of negligence specified in defendant's withdrawal instructions submitted to the jury. Davis v. Buck's Stove & Range Co., 329 Mo. 1177, 49 S.W.2d 47; Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512. (16) The giving or refusal of a withdrawal instruction is...