Bulkley v. Thompson, 21002.

• Decision Date: 05 April 1948
• Docket Number: No. 21002.,21002.
• Parties: A.H. BULKLEY, RESPONDENT, v. FRANK A. THOMPSON, TRUSTEE OF ST. LOUIS AND SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

211 S.W.2d 83

A.H. BULKLEY, RESPONDENT, v. FRANK A. THOMPSON, TRUSTEE OF ST. LOUIS AND SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANT.

No. 21002.

Kansas City Court of Appeals. Missouri.

Opinion delivered April 5, 1948.

Appeal from Circuit Court of Henry County. — Hon. Dewey P. Thatch, Judge.

AFFIRMED.

M.G. Roberts, E.G. Nahler, Thos. E. Deacy, Milligan, Kimberly & Deacy and Poague, Poague & Brock for appellant.

(1) The Court erred in overruling defendant's motion for an instructed verdict at the close of all the evidence in the case and in refusing to give an instructed verdict for the defendant. Under all of the substantial evidence plaintiff failed to establish a submissible humanitarian case. Defendant was not negligent under the humanitarian doctrine so long as plaintiff was only approaching a position of peril. Kimbrough v. Chervitz, 186 S.W. 2d 461, 353 Mo. 1154; Buehler v. Festus Merc. Co., 119 S.W. 2d 961, 343 Mo. 139; Hilton v. Terminal R. Ass'n of St. Louis, 137 S.W. 2d 520, 345 Mo. 987; Maddux v. Gardner, 192 S.W. 2d 14. (2) The deceased was a pedestrian and the zone of peril was limited. Kimbrough v. Chervitz, 186 S.W. 2d 461, 353 Mo. 1154; Maddux v. Gardner, 192 S.W. 2d 14; Knight v. Wabash R.R. Co., 85 S.W. 2d 392; Thomasson v. Henwood, 146 S.W. 2d 88; Costello v. Pitcairn, 116 S.W. 2d 257. (3) Plaintiff's evidence failed to establish that suit for the alleged wrongful death of Jane Weeks Bulkley was filed within one year from the date thereof. Under the pleadings it was incumbent upon plaintiff to make such proof and his evidence having failed to establish such fact defendant was entitled to an instructed verdict. Section 3656, R.S. Mo. 1939. Chandler v. Chicago & A.R. Co., 158 S.W. 35, 251 Mo. 592; King v. Smith Baking Co., 71 S.W. 2d 115; Betz v. K.C. Southern Ry. Co., 284 S.W. 455, 314 Mo. 390; Krueger v. Walters, 179 S.W. 2d 615. (4) The Court erred in giving to the jury, over the objection and exception of appellant, plaintiff's Instruction No. 4 and in overruling appellant's objections thereto. The instruction erroneously authorized a verdict for the plaintiff on primary negligence, and was confusing. White v. Kansas City Public Service Co., 149 S.W. 2d 375, 347 Mo. 895. (5) Plaintiff's Instruction No. 4 erroneously placed the duty upon the defendant of giving an efficient or effective warning to the deceased and made the defendant an insurer. Poague v. Kurn, 140 S.W. 2d 13, 346 Mo. 153. (6) The instruction erroneously failed to require the jury to find that plaintiff A.H. Bulkley had instituted suit within one year from the date of the death of his wife, Jane Weeks Bulkley. Krueger v. Walters, 179 S.W. 2d 615. (7) The Court erred in giving to the jury, over the exception and objection of defendant, plaintiff's Instruction No. 5, the damage instruction, and in overruling appellant's objections thereto and in changing the language of the same after said instruction had been read to the jury and the case argued and before the jury had retired to consider its verdict. The instruction as amended by the Court was erroneous because it did not state a proper measure of damages and permitted recovery of compensatory damages instead of a penalty. Treadway v. United Railways Co., 253 S.W. 1037, 300 Mo. 156. (8) The instruction was erroneous for the reason that at no point in the instruction was the jury directed or confined to the evidence in the case in assessing damages. White v. National Lead Co., 99 S.W. 2d 535. (9) The instruction erroneously charged the jury that the jury might consider aggravating circumstances when there was no evidence which authorized the submission of any such issue. Mauzy v. J.D. Carson Co., 189 S.W. 2d 829; Gerran v. Minor, 192 S.W. 2d 57; Barth v. Kansas City Elevated Ry. Co., 142 Mo. 535, 44 S.W. 778; Boyd v. Mo. Pac. R.R. Co., 236 Mo. 54, 139 S.W. 561; Stoher v. St. Louis Iron Mountain & Southern R. Co., 91 Mo. 509, 4 S.W. 389; Goode v. Central Coal & Coke Co., 167 Mo. App. 169, 151 S.W. 508; Williams v. Excavating & Foundation Co., 230 Mo. App. 973, 93 S.W. 123; Kurn v. Hughes, et al., 318 Mo. 177, 153 S.W. 2d 46. (10) The Court erred in admitting evidence over the objection and exception of defendant of the mangled condition of deceased's body. Chawkley v. Wabash Ry. Co., 297 S.W. 20, 317 Mo. 782; Borrson v. Missouri-Kansas-Texas R. Co., 172 S.W. 2d 826, 35 Mo. 214. (11) The Court erred in overruling defendant's objections to improper argument made by plaintiff's counsel and in failing to sustain defendant's objections thereto. Beer v. Martel, 55 S.W. 2d 482, 332 Mo. 53; Amsinger v. Najim, 73 S.W. 2d 214, 335 Mo. 528; Stanton v. Jones, 19 S.W. 2d 507. (12) The verdict of the jury was and is excessive.

Charles A. Calvird, L.M. Crouch, Jr., W.M. Kimberlin and Sam Mandell for respondent.

(1) Plaintiff made a submissible case under the humanitarian doctrine on defendant's failure to give efficient and timely warning after discovered peril. Adams v. Thompson (Mo. App.), 178 S.W. 2d 779; Rosanbalm v. Thompson (Mo. App.), 148 S.W. 2d 830; affirmed State ex rel. Rosanbalm v. Shain, et al., 349 Mo. 27, 159 S.W. 2d 582; Bollinger v. St. Louis-San Francisco Ry. Co., 334 Mo. 720, 67 S.W. 2d 985; Chawkley v. Wabash R. Co., 317 Mo. 782, 297 S.W. 20; Bebout v. Kurn, et al., 348 Mo. 501, 154 S.W. 2d 120; Hutchison v. Thompson (Mo.), 175 S.W. 2d 903; Knorp v. Thompson, 352 Mo. 44, 175 S.W. 2d 889; Johnson, et al. v. Hurck Delivery Service, Inc., et al., 353 Mo. 1207, 187 S.W. 2d 200; Womack v. Missouri Pacific R. Co., 337 Mo. 1160, 88 S.W. 2d 368; Perkins v. Terminal R. Ass'n of St. Louis, 340 Mo. 868, 102 S.W. 2d 915; Hilton v. Terminal R. Ass'n of St. Louis, 345 Mo. 987, 137 S.W. 2d 520. (2) The mere changing of the spelling of the name of plaintiff and deceased in the petition from "Buckley" to "Bulkley" did not change the original cause of action or create a new one, and it was unnecessary for plaintiff's evidence to establish that suit was filed by A.H. Bulkley within one year from the date of his wife's death. Rubin v. Bassakin, 130 S.W. 2d 224; 45 C.J., page 383, Names, Sec. 19; Secs. 57, 81, Civil Code of Missouri. (3) Plaintiff's Instruction No. 4 was properly given. Adams v. Thompson, (Mo. App.), 178 S.W. 2d 779; Hoelzel v. Chicago, R.I. & P. Ry. Co., 337 Mo. 61, 85 S.W. 2d 126; Lankford v. Thompson, 354 Mo. 220, 189 S.W. 2d 217. (4) Plaintiff's Instruction No. 5 was properly given and the minor change in its language later made by the court was neither erroneous nor prejudicial. Adams v. Thompson, supra; Cooper v. Kansas City Public Service Co. (Mo.), 202 S.W. 2d 42; Bybee v. Dunham, et al., (Mo.), 198 S.W. 190; Faulk, et ux., v. Kansas City Rys. Co., (Mo.), 247 S.W. 253. (5) Evidence showing the position of the parts of Mrs. Bulkley's body was properly received by the court as tending to show how far she had walked before being struck. No error was committed by the trial court with respect to its ruling on defendant's objections to argument of plaintiff's counsel. Gann v. Chicago, R.I. & P. Ry. Co., 319 Mo. 214, 6 S.W. 2d 39. (6) The jury's verdict was not excessive. Benton v. Thompson, 236 Mo. App. 1000, 156 S.W. 2d 739, certiorari quashed, State ex rel. Thompson v. Shain, 349 Mo. 1075, 163 S.W. 2d 967; Steger v. Meehan, et ux. (Mo.), 63 S.W. 2d 109.

BLAND, J.

This is an action for wrongful death. The suit is prosecuted by plaintiff to recover the statutory penalty, under Section 3652 R.S. Mo. 1939, for the death of his wife, Jane Weeks Bulkley. There was a verdict and judgment in favor of plaintiff in the sum of $7000, and the defendant has appealed.

Deceased met her death by having been struck by a locomotive owned and operated by the servants of defendant at the North Avenue crossing in the City of Belton. Defendant's railroad runs, generally, north and south but, as it extends southward and shortly before reaching the North Avenue crossing, it curves to the east. The crossing is in this curve.

The evidence shows that plaintiff, at the time of the death of deceased, on May 19, 1945, was 77 years of age, and deceased was 73 years of age. Deceased was in good health and her hearing and eyesight were good. Plaintiff and deceased lived about two blocks west of, and she was thoroughly familiar with, the crossing in question. At the time of the collision she was enroute from her house to meet her daughter at the bus station about two blocks east of the crossing. When she left home, on the morning of the tragedy, she was in good health and spirits. There was but one eyewitness to the collision, John W. Balke, who was the engineer on the train involved in the collision. He was called as a witness for plaintiff. He was not in the employ of the defendant at the time of the trial. He testified that the train in question consisted of an engine, tender, combination mail and baggage car, a day coach and two hospital cars; that the train was about twenty minutes late; that it was a clear day; that the witness first saw deceased when she was about twenty feet from the west rail of the railroad tracks; that at this time the front end of the engine was about one hundred feet from deceased; that he could not have seen her sooner because of shrubbery and rubbish along the west side of the track and to the north of the crossing. Likewise deceased could not see the train approaching until she emerged from behind these obstructions, twenty feet from the crossing. He testified that the train was approaching at a rate of speed of about thirty miles per hour; that he did not reduce the speed of the train until he saw that deceased was going to get on the track; that he saw deceased walk the entire distance of twenty feet; that she was walking fast and was in the middle of the road or the street; that "she just kept a going;" that she was looking straight ahead and, at no time, looked toward the train. Asked if she threw up her hands or made any outward movement, h...