Bretall v. Missouri Pac. R. Co.

• Citation: 239 S.W. 597
• Decision Date: 20 February 1922
• Docket Number: No. 14188.,14188.
• Parties: BRETALL v. MISSIOURI PAC. R. CO.
• Court: Court of Appeal of Missouri (US)

239 S.W. 597

BRETALL v. MISSIOURI PAC. R. CO.

No. 14188.

Kansas City Court of Appeals. Missouri.

February 20, 1922.

Rehearing Denied April 3, 1922.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"Not to be officially published."

Action by Herman C. Bretall, administrator of the estate of Carl Zimmerschied, deceased, against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

C. D. Corum, of St. Louis, for appellant.

Montgomery & Rucker, of Sedalia, for respondent.

ARNOLD, J.

This is a suit in damage for the destruction of an automobile in a collision with a passenger train of the defendant railroad company, at a public crossing one mile east of the village of Otterville, Cooper county, Mo.

The facts disclosed by the evidence are that the right of way of defendant company runs in an easterly direction from the village of Otterville, and that the track curves in a deep cut toward the north about 300 feet before reaching the grade crossing where the accident occurred, so that a view of an approaching train is obstructed beyond 300 to 400 feet from the crossing west.

There is a public road running east from Otterville which parallels the railroad track and adjoins the right of way on the north side thereof. About one mile east of Otterville this road joins another public road at right angles about 40 feet north of the railroad tracks. This latter road crosses the railroad right of way going south.

On the afternoon of January 9, 1921, Carl Zimmerschied, driving a five-passenger Dodge automobile, in company with his mother and sister, left Otterville on his way home southeast of said village, making it necessary for him to pass over the grade crossing above referred to. It appears that on said day defendant's through passenger train known as No. 12, going east, approached the crossing in question, at a speed of 75 miles per hour. From Otterville east to the said crossing there is a considerable downgrade, and said train on the occasion in question was coasting down this grade, using no steam.

The collision occurred, as above stated, at the said crossing, resulting in the death of Carl Zimmerschied, the deaths of his mother and sister, and the total destruction of the car in which they were riding. The impact of the collision was so great that the body of Carl was thrown to an embankment near a wagon bridge on the public road, and the bodies of his mother and sister were hurled into the Little Lamine river which crosses the right of way about 150 feet from the grade crossing in question. The loss of the automobile is the only question involved in this suit.

The petition charges statutory negligence of defendant, in that its agents and servants in charge of said locomotive and train negligently failed to ring the bell on said locomotive, at a distance of 80 rods from the crossing, and to keep the same ringing until said locomotive had crossed the public highway, and by the negligent failure of said agents and servants to sound the whistle attached to said locomotive at a distance of 80 rods from said crossing, and to sound said whistle at intervals until said locomotive had crossed said highway. The answer, after admitting the corporate existence of defendant on January 9, 1921, is a general denial and a plea of contributory negligence. Upon the issues thus joined, the cause was tried to the court, a jury having been waived. Upon its findings, made and entered, the court rendered judgment in favor of plaintiff in the sum of $800. Motions for new trial and in arrest were duly filed and by the court overruled, and defendant appeals.

It was stipulated between the parties

"That the evidence taken in the case of L. Bloomcamp, administrator of the estate of Sophia Zimmerschied, deceased, v. Missouri Pacific Railroad Co., except the evidence of W. L. McCutcheon, taken therein, should be considered as evidence in this cause; that the testimony of W. L. McCutcheon and Wm. N. Bennett, witnesses in the case of Clara Zimmerschied v. M., P. R. R. Co. will be considered as evidence in this cause; that plaintiff should have the right to offer evidence as to the value of the automobile in question; also, as to the appointment of the administrator herein. It is hereby admitted, but for the purpose of this appeal only, that the automobile mentioned in the evidence was totally destroyed."

No declarations of law were requested by plaintiff, but defendant asked eight declarations of law, all of which were refused by the court. Defendant urges that the court erred in refusing declarations of law Nos. 3 and 8, "because it was the duty of the court sitting as a jury to properly instruct himself as to the law of the case," and argues that "it was the duty of the court to give proper declarations of law when requested by either party." There should be no quarrel with this plain statement of the rule of law, which is based upon the provisions of section 1417, R. S. 1919 (section 1987, R. S. 1909), as follows:

"When the evidence is concluded, and before the case is argued and submitted to the jury or to the court sitting as a jury, either party may move the court to give instructions on any point of law arising in the cause, which shall be in writing and shall be given or refused * * *"

The rule is well established that a trial court sitting as a jury, either should give declarations of law or make findings of fact with conclusions of law, but cannot be required to do both. Moss Tie Co. v. Kreilich, 80 Mo. App. 304; Kostuba v. Miller, 137 Mo. 161, 38 S. W. 946.

The record shows that at the close of all the evidence introduced in the case counsel for defendant moved the court to give the eight declarations of law above referred to; but nowhere does the record disclose that counsel sought any findings of fact at the hands of the court. The court refused all the declarations of law asked by defendant, which it had a right to do. In the Moss Tie Company Case, supra, it is said:

"The court was bound when asked to either give or refuse instructions, or to make a finding of the facts (Suddarth v. Robertson. 118 Mo. 286; Dobyns v. Bay State Ben. Ass'n, 144 Mo. 95), but was not required to do both (Kostuba v. Miller, 137 Mo. loc. cit. 173)."

Defendant in the case at bar received the benefit of the practice prescribed by section 1417, and we are enabled to learn from the declarations offered and refused by the court the theory upon which the case was tried. In the Kostuba Case the court held, in effect, that in the trial of actions at law, heard by the court without the aid of a jury, the court, when requested, either should give or refuse instructions as in case of ordinary jury trials, or may state its findings of fact separately from its conclusions of law, as provided by statute, but should not pursue both courses; that where the court, in such cases, merely makes a general finding, such action is equivalent to a general declaration of law on all the facts found.

The finding of the court in the instant case is as follows:

"* * * The court, being in all matters and things contained...