Brown v. Alton R.R. Co. and Slatter

• Decision Date: 27 January 1941
• Docket Number: No. 19268.,19268.
• Citation: 151 S.W.2d 727
• Parties: ROBERTA BROWN, RESPONDENT, v. THE ALTON RAILROAD COMPANY AND W.L. SLATTER, APPELLANTS.
• Court: Missouri Court of Appeals

151 S.W.2d 727

ROBERTA BROWN, RESPONDENT, v. THE ALTON RAILROAD COMPANY AND W.L. SLATTER, APPELLANTS.

No. 19268.

Kansas City Court of Appeals, Missouri.

January 27, 1941.

Appeal from Circuit Court of Howard County. — Hon Aubrey R. Hammett, Judge.

AFFIRMED.

Bagby & Pierce and Johnson & Bacon for respondent.

(1) The trial court properly refused the peremptory instructions requested by each of the defendants at the close of plaintiff's evidence in chief and at the close of all the evidence. Plaintiff proved actionable negligence against both defendants in the violation of the fifteen mile an hour speed ordinance of the city of Marshall within the corporate limits. (a) 1. The ordinance of the city of Marshall was reasonable and valid. Murrell v. Kansas City, St. Louis & Chicago Railroad Company, 279 Mo. 92, 108; Thompson v. St. Louis-San Francisco R.R. Co., 325 Mo. 1024, 69 S.W. (2d) 936, 941-944; Youtsey v. Chicago, R.I. & P. Ry. Co., 251 S.W. 468. 2. The invalidity of the ordinance, if any, was not raised by defendants by answer and the question was thereby waived. McGrath v. Meyers (Mo.), 107 S.W. (2d) 794; Sutton v. Anderson (Mo.), 31 S.W. (2d) 1026; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685. (b) Plaintiff's proof that train was operated within city limits at a rate of speed in excess of the speed ordinance made a jury case of actionable negligence against both defendants. The ordinance was properly admitted. 1. Against defendant corporation. Gratiot v. The Mo. Pac. Ry. Co., 116 Mo. 450, 462-463; Dahlstrom v. The St. Louis, I.M. & S. Ry. Co., 108 Mo. 525, 538; Stotler v. Railroad, 200 Mo. 107, 121; Todd v. St. Louis-San Francisco Ry. Co., 37 S.W. (2d) 558. 2. Against defendant Slatter. Stegner v. Missouri-Kansas-Texas R. Co. (Mo.), 64 S.W. (2d) 694; Orcutt v. Century Bldg., 201 Mo. 447-450; Stith v. J.J. Newberry Co. (Mo.), 79 S.W. (2d) 447; Jost v. American Car & Foundry Co. (Mo.), 246 S.W. 340. (c) There was substantial evidence of the violation of the ordinance at the crossing and within the city limits; the violation of the ordinance was the proximate cause of the collision between the truck and train. Walsh v. The Mo. Pac. Ry. Co., 102 Mo. 586; Moon v. St. Louis Transit Co., 237 Mo. 431, 432; Stotler v. Railroad, 200 Mo. 107, 129; Sluder v. Transit Co., 189 Mo. 144; Anderson v. Asphalt Distributing Co. (Mo.), 55 S.W. (2d) 693; Eckhard v. St. Louis Transit Co., 190 Mo. 617; Cunningham v. St. Louis & S.F. Ry. Co., 9 S.W. (2d) 168; Todd v. St. Louis-San Francisco Ry. Co. (Mo.), 37 S.W. (2d) 557 (4), 558; Hoelzel v. Chicago, R.I. & P. Ry. Co. (Mo.), 85 S.W. (2d) 128. Respondent is entitled to the benefit of any evidence offered by appellants, where not contradictory of respondent's evidence. Scoggins v. Miller (Mo. App.), 80 S.W. (2d) 728; Gann v. Chicago, R.I. & P. Ry. Co. (Mo.), 6 S.W. (2d) 44. (d) Neither Berry, the driver, nor deceased Brown were negligent as a matter of law under the facts of the case, and the question was properly submitted to the jury. 1. Berry, the driver, was not negligent. Jackson v. Missouri Pac. Ry. Co. (Mo. App.), 42 S.W. (2d) 934; Smith v. Chicago Great Western R. Co. (Mo. App.), 282 S.W. 64; Norton v. Davis (Mo. App.), 265 S.W. 107, 109-110; Hoelzel v. Chicago, R.I. & P. Ry. Co. (Mo.), 85 S.W. (2d) 126; Eckhard v. St. Louis Transit Co., 190 Mo. 618. 2. Defendants are liable if their negligence concurred with negligence of Berry, the driver, to cause the collision. State v. Haid (Mo.), 62 S.W. (2d) 400; Christiansen v. St. Louis Public Service Co. (Mo.), 62 S.W. (2d) 828; Jenkins v. Springfield Traction Co. (Mo. App.), 96 S.W. (2d) 620. 3. The doctrine of joint enterprise does not apply in this case for there was no joint control. Therefore, the negligence of Berry, the driver, if any, cannot be imputed to Brown, a guest. Herrell v. St. Louis-San Francisco Ry. Co. (Mo.), 23 S.W. (2d) 105; Smith v. St. Louis-San Francisco Ry. Co. (Mo.), 9 S.W. (2d) 945, 946; Gregory v. Jenkins (Mo. App.), 43 S.W. (2d) 877, 879; Sluder v. Transit Co., 189 Mo. 107, 139, 141; Roy v. Kansas City, 204 Mo. App. 332; Mahany v. K.C. Railways Co., 286 Mo. 601; Byars v. Railroad, 161 Mo. App. 692, 704; Anderson v. Asphalt Distributing Co. (Mo.), 55 S.W. (2d) 688, 694; Applebee v. Ross et al. (Mo.), 48 S.W. (2d) 900. 4. Deceased Brown, a guest, was not negligent as a matter of law. (a) It is presumed that deceased Brown exercised ordinary care. Thompson v. St. Louis-San Francisco Ry. Co. (Mo.), 69 S.W. (2d) 945; Sing v. St. Louis-San Francisco Ry. Co. (Mo.), 30 S.W. (2d) 37, 41; Smith v. Chicago Great Western R. Co. (Mo. App.), 282 S.W. 64; Byars v. Railroad, 161 Mo. App. 692, 704. (b) Brown was not charged with the same degree of care as the driver. Cunningham v. St. Louis & S.F. Ry. Co. (Mo. App.), 9 S.W. (2d) 166; Smith v. St. Louis-San Francisco Ry. Co. (Mo.), 9 S.W. (2d) 939; Smith v. St. Louis & A. Ry. Co. (Mo. App.), 50 S.W. (2d) 666; Thompson v. St. Louis-San Francisco Ry. Co. (Mo.), 69 S.W. (2d) 945. (c) Brown had the right to rely on Berry to a certain extent. Thompson v. St. Louis-San Francisco Ry. Co. (Mo.), 69 S.W. (2d) 946; Peppers v. St. Louis-San Francisco Ry. Co. (Mo.), 295 S.W. 757, 760. (d) The burden was on the defendants to show contributory negligence on the part of Brown. Gorman v. St. Louis Merchants' Bridge Terminal Ry. Co. (Mo.), 28 S.W. (2d) 1023, 1025; Thompson v. St. Louis-San Francisco Ry. Co. (Mo.), 69 S.W. (2d) 945. (2) Plaintiff proved actionable negligence against both defendants in negligently failing to stop the train or slacken the speed thereof, under the humanitarian theory after the engineer, in the exercise of ordinary care, saw or could have seen deceased Brown on said tracks, or approaching said tracks, intent upon going on and across said tracks and in a position of imminent peril and oblivious thereof. (a) The engineer saw, or by the exercise of ordinary care could have seen, the deceased in a position of imminent peril, approaching the railroad tracks, intent upon going on and across the same and that he was oblivious to said peril in time thereafter by the exercise of ordinary care to have stopped the train and avoided the collision. Werndle v. St. Louis-San Francisco Ry. Co. (Mo. App.), 67 S.W. (2d) 811, 812; Herrell v. St. Louis-San Francisco Ry. Co. (Mo.), 18 S.W. (2d) 485; Homan v. Mo. Pac. R. Co. (Mo.), 64 S.W. (2d) 624; Womack v. Mo. Pac. R. Co. (Mo.), 88 S.W. (2d) 370, 371, 372; Robison v. Chicago Great Western R. Co. (Mo. App.), 66 S.W. (2d) 186, 187; Crews v. Kansas City Public Service Co. (Mo.), 111 S.W. (2d) l.c. 57, 58; Hoelzel v. Chicago, R.I. & P. Ry. Co. (Mo.), 85 S.W. (2d) 126; Hinds v. Chicago, B. & Q.R. Co. (Mo. App.), 85 S.W. (2d) 170; Perkins v. Terminal R. Ass'n of St. Louis (Mo.), 102 S.W. (2d) 915, 920; Hencke v. St. Louis & H.R. Co. (Mo.), 72 S.W. (2d) 799; Beal v. Chicago, B. & Q.R. Co. (Mo.), 285 S.W. 482, 483; Kloeckener v. St. Louis Public Service Co. (Mo.), 53 S.W. (2d) 1044; Phillips v. Henson (Mo.), 30 S.W. (2d) 1068; Burke v. Poppas (Mo.), 293 S.W. 146; Schneider v. Terminal Railroad Ass'n of St. Louis (Mo.), 107 S.W. (2d) 792; Smith v. Chicago Great Western R. Co. (Mo. App.), 282 S.W. 63; Scoggins v. Miller (Mo. App.), 80 S.W. (2d) 728; Gann v. Chicago, R.I. & P. Ry. Co. (Mo.), 6 S.W. (2d) 44; Robinson v. O'Shanzky (Mo. App.), 96 S.W. (2d) 898; Mallon v. Water Commissioners, 144 Mo. App. 110. (b) The circumstances and facts in this case which showed the deceased steadily approaching the railroad crossing, oblivious of the approach of the train, made the question of the limits of the "danger zone" a question for the jury to determine. Schneider v. Terminal Railroad Ass'n of St. Louis (Mo.), 107 S.W. (2d) 792; Perkins v. Terminal R. Ass'n of St. Louis (Mo.), 102 S.W. (2d) 923; Allen v. Kessler (Mo.), 64 S.W. (2d) 630, 633; Homan v. Mo. Pac. R. Co. (Mo.), 64 S.W. (2d) 617, 624; Kent v. Kiel (Mo. App.), 97 S.W. (2d) 889; Herrell v. St. Louis-San Francisco Ry. Co. (Mo.), 18 S.W. (2d) 485; Crews v. Kansas City Public Service Co. (Mo.), 111 S.W. (2d) 58; Housley v. Berberich Delivery, Inc. (Mo. App.), 87 S.W. (2d) 209; Kloeckener v. St. Louis Public Service Co. (Mo.), 53 S.W. (2d) 1043, 1044; Hinds v. Chicago, B. & Q.R. Co. (Mo. App.), 85 S.W. (2d) 165, 168. (c) The evidence showed the train could be stopped and was stopped in 130 feet. There was substantial evidence that a slackening of the speed of the train, after the engineer was required to act, would have given time for the truck to have crossed the track ahead of the train. Hoelzel v. Chicago, R.I. & P. Ry. Co. (Mo.), 85 S.W. (2d) 131; Scott v. Terminal Railroad Ass'n of St. Louis (Mo. App.), 86 S.W. (2d) 119; Rummells v. Illinois Cent. R. Co. (Mo. App.), 15 S.W. (2d) 366, 367; Perkins v. Terminal R. Ass'n of St. Louis (Mo.), 102 S.W. (2d) 915; Smith v. Chicago Great Western R. Co. (Mo. App.), 282 S.W. 64. (d) The engineer knew the crossing was a much-travelled public crossing. It was his duty to keep a constant and close lookout on both sides of said crossing and not to run the train "blind" into said crossing as the evidence showed he did run it. Savage v. Chicago, R.I. & P. Ry. Co. (Mo.), 40 S.W. (2d) 628, 632; Hoelzel v. Chicago, R.I. & P. Ry. Co. (Mo.), 85 S.W. (2d) 126, 128; Perkins v. Terminal R. Ass'n of St. Louis (Mo.), 102 S.W. (2d) 915; Robinson v. O'Shanzky (Mo. App.), 96 S.W. (2d) 898; Beal v. Chicago, B. & Q.R. Co. (Mo.), 285 S.W. 482; Smith v. Chicago Great Western R. Co. (Mo. App.), 282 S.W. 62, 63. (3) Weight of the evidence. There was substantial evidence on the issue of primary negligence and also on the theory of the humanitarian doctrine; such being the case, the weight of the evidence was a matter for the jury to determine. Carter v. Burns (Mo.), 61 S.W. (2d) 939; Dunn v. Oil Development Co., 1 S.W. (2d) 132; Clason v. Lenz, 61 S.W. (2d) 727, 729; LaFont v. Richardson, 119 S.W. (2d) 25. (2) The trial court committed no error in giving plai...