Carpenter v. Kurn

• Decision Date: 16 December 1941
• Docket Number: 37705
• Citation: 157 S.W.2d 213,348 Mo. 1132
• Parties: Mary Carpenter v. James M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company, Debtor, Appellants
• Court: Missouri Supreme Court

157 S.W.2d 213

348 Mo. 1132

Mary Carpenter v. James M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company, Debtor, Appellants

No. 37705

Supreme Court of Missouri

December 16, 1941

Appeal from Henry Circuit Court; Hon. C. A. Calvird, Judge.

Affirmed (subject to remittitur).

M G. Roberts, E. G. Nahler and Mann & Mann for appellants.

(1) The demurrer to the evidence should have been sustained. (a) It was decided upon the first appeal and is admitted by respondent that the enginemen owed no duty to attempt to stop the train until they actually discovered the deceased to be a human being in a position of imminent peril. Carpenter v Kurn, 136 S.W.2d 997; Missouri Pac. Railroad Co. v Gordon, 98 P.2d 39; Voorhees v. Chicago, R. I. & P. Ry. Co., 325 Mo. 835; Atchison, T. & S. F. Railroad Co. v. Phillips, 12 P.2d 908; Louisville H. & St. L. Railroad Co. v. Hathaway's Admrx., 121 Ky. 666, 89 S.W. 724. (b) In determining the question of defendants' negligence the first inquiry is: When did it first become the duty of the enginemen to apply the brakes and where was the train at that time? Deceased was clearly guilty of contributory negligence in sitting and remaining upon the track. His conduct is not affected by the fact that he was either asleep or drunk. Carpenter v. Kurn, 136 S.W.2d 997. (c) So long as his negligence continued as an active factor, no duty arose under the last clear chance doctrine. Atchison, T. & S. F. Railroad Co. v. Bratcher, 99 Okla. 74, 225 P. 941; Gwaltney v. Kansas City S. Ry. Co., 339 Mo. 249, 96 S.W.2d 357. (d) Deceased was at a place where he knew he had no right to be and in a known place of danger, where trains might pass at any time. All the testimony shows the whistle was being sounded in short, sharp and almost continuous blasts. The enginemen had the right to assume that he would hear these signals and would move to a place of safety, and so long as he could do so and until it reasonably appeared to the enginemen he would not do so, there was no duty to apply the brakes. Missouri Pac. Railroad Co. v. Gordon, 98 P.2d 39; State v. Schneiders, 137 S.W.2d 439; Smithers v. Barker, 111 S.W.2d 47; Poague v. Kurn, 140 S.W.2d 13; Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Clark v. Atchison, T. & S. F. Ry. Co., 319 Mo. 865, 6 S.W.2d 954; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; Degonia v. St. Louis, I. M. Ry. Co., 224 Mo. 564; Hammontree v. Payne, 296 Mo. 487; Gabal v. St. Louis & S. F. Ry. Co., 251 Mo. 257. (e) Peril and obliviousness alone are not sufficient. No duty arises until the peril and obliviousness become, or should become, apparent to the enginemen. Hilton v. Terminal Ry. Assn., 137 S.W.2d 520; Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961; Poague v. Kurn, 140 S.W.2d 13. (f) A place of imminent peril does not mean one where there is a mere bare possibility of an injury occurring, but a place wherein there is certain danger. Branson v. Abernathy F. Co., 130 S.W.2d 562; Wallace v. St. Joseph Ry., L., H. & P. Co., 336 Mo. 282, 77 S.W.2d 1011; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014; Ziegelmeier v. East St. Louis & S. Railroad Co., 330 Mo. 1013, 51 S.W.2d 1027; Ridge v. Jones, 335 Mo. 219, 71 S.W.2d 713; Kasperski v. Rainey, 135 S.W.2d 11. (g) One is not in a place of imminent peril if he is aware of the danger and can extricate himself. Stark v. Berger, 125 S.W.2d 870; Clark v. Atchison, T. & S. F. Ry. Co., 319 Mo. 865, 6 S.W.2d 954; Buehler v. Festus M. Co., 343 Mo. 139, 119 S.W.2d 961. (h) There was no competent testimony of probative force warranting the jury in finding that this train could have been stopped before striking deceased, after he was actually discovered by the enginemen as a human being in a place of imminent peril and oblivious to the danger. Mo. Pacific Railroad Co. v. Gordon, 98 P.2d 39. (i) While it is not within the province of this court to weigh the testimony, it is its function and duty to determine whether there is substantial believable evidence to support the verdict and to set aside the verdict, where there is not, or where the testimony is contrary to physical facts or to known physical laws or which is the result of evident mistake or ignorance or where other established facts disclose its inherent infirmity. Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105; Dunn v. Alton Ry. Co., 340 Mo. 1037, 104 S.W.2d 311; Cadwell v. Wilson Stove & Mfg. Co., 238 S.W. 415; Weaver v. Mobile & O. Ry. Co., 343 Mo. 223, 120 S.W.2d 1105; Evans v. Massman Const. Co., 122 S.W.2d 924. (2) While ordinarily the opinion on the former appeal is the law of the case where there is no substantial change in pleading or evidence, yet the appellant is not foreclosed by the opinion on the former appeal, and if the court finds that it was in error in its opinion, it not only has the power and right to correct such error, but it is the duty of the court to do so in the interest of justice. Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105; Hogan v. Kansas City Pub. Serv. Co., 322 Mo. 1103, 19 S.W.2d 707; Poe v. Illinois Central Ry. Co., 339 Mo. 1025, 99 S.W.2d 82; Mangold v. Bacon, 237 Mo. 496. (3) It was error to admit testimony as to experiments. Wells v. Lusk, 188 Mo.App. 63; Cook v. St. Joseph Ry., L., H. & P. Co., 232 Mo.App. 313, 106 S.W.2d 38; Ballman v. Lueking Teaming Co., 281 Mo. 342, 219 S.W. 603; Riggs v. Metropolitan St. Ry. Co., 216 Mo. 304; Griggs v. Kansas City Ry. Co., 228 S.W. 508. (4) The court erred in refusing to give defendants' requested Instruction 11, submitting the issue of contributory negligence. Where, as here, contributory negligence is pleaded and is supported by the evidence, that issue must, under the constitutional provision of Oklahoma, be submitted to the jury. Sec. 6, Art. 23, Const. of Okla.; Gourley v. Oklahoma City, 104 Okla. 210, 230 P. 923; St. Louis-S. F. Ry. Co. v. Boush, 68 Okla. 301, 174 P. 1037; Chicago, R. I. & P. Railroad Co. v. Zirkle, 76 Okla. 298, 185 P. 329; Chicago, R. I. & P. Railroad Co. v. Beatty, 27 Okla. 844, 116 P. 171; Alexander v. Beaver, 174 Okla. 123, 50 P.2d 392; Midland Valley Railroad Co. v. Barnes, 162 Okla. 44, 18 P.2d 1089; Yellow Taxi Cab & Baggage Company v. Cooke, 171 Okla. 269, 42 P.2d 826. (5) Error was committed in the giving of plaintiff's Instruction 1, in that, after providing that upon the finding of facts there hypothecated the "verdict should be for the plaintiff, even though you may believe the deceased was a trespasser and was intoxicated and guilty of negligence in sitting upon the track." Atchison, T. & S. F. Railroad Co. v. Bratcher, 99 Okla. 74, 225 P. 941; Gwaltney v. Kansas City S. Ry. Co., 339 Mo. 249, 96 S.W.2d 357; St. Louis-S. F. Railroad Co. v. Bryan, 237 P. 613; Atchison, T. & S. F. Railroad Co. v. Baker, 21 Okla. 51, 95 P. 433; Oklahoma City Railroad Co. v. Barkett, 30 Okla. 28, 118 P. 350; St. Louis & S. F. Railroad Co. v. Clark, 42 Okla. 638, 142 P. 396; Lusk v. Haley, 75 Okla. 206, 181 P. 727; Thrasher v. St. Louis-S. F. Ry. Co., 86 Okla. 88, 206 P. 212; Cases under Point (4). (a) If contributory negligence was not an issue, then it was reversible error to make any reference to the negligence of the deceased in this instruction. Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 11; Silliman v. Munger Laundry Co., 329 Mo. 235, 44 S.W.2d 159; Pence v. Kansas City Laundry S. Co., 332 Mo. 930, 59 S.W.2d 633; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393. (6) The court erred in refusing defendants' requested Instruction 12, submitting the issue of deceased's contributory negligence as the sole cause of the collision and his death. This was a proper instruction and its refusal constitutes reversible error. Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742; McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 792; Branson v. Abernathy F. Co., 344 Mo. 1171, 130 S.W.2d 562; State ex rel. Snider v. Shain, 137 S.W.2d 527; Long v. Mild, 149 S.W.2d 853. (7) The verdict and judgment of $ 20,000 is grossly excessive, in view of the age and limited earnings of the deceased. Willgues v. Pennsylvania Ry. Co., 318 Mo. 28, 298 S.W. 817; Brown v. Chicago, R. I. & P. Co., 315 Mo. 409, 286 S.W. 45; Gypsy Oil Co. v. Green, 82 Okla. 147, 198 P. 851; Chicago, R. I. & P. Railroad Co. v. Brooks, 11 P.2d 142; City of Sapulpa v. Deason, 196 P. 544; New v. McMillan, 191 P. 160.

Sizer & Myres and Harry G. Waltner, Jr., for respondent.

(1) Respondent made a case to go to the jury. Carpenter v Kurn, 136 S.W.2d 997; Lober v. Kansas City, 100 S.W.2d 267; Kick v. Franklin, 137 S.W.2d 512. In appellants' brief, the Gwaltney and Bratcher cases are cited. The opinion in the first appeal in this case shows and holds that they support respondent's contentions. Carpenter v. Kurn, 126 S.W.2d 997. This court in its first opinion cited the Pedigo case, 123 Okla. 213, 252 P. 1095 and the Bryan case, 113 Okla. 39, 237 P. 613, as stating the applicable law. Those decisions are approved by more recent decisions of the Supreme Court of Oklahoma. Graybill v. Clancy, 291 P. 87. Other Oklahoma cases sustaining respondent's contentions. Missouri, K. & T. Railroad Co. v. Smith, 223 P. 373; Oklahoma Ry. Co. v. Overton, 12 P.2d 537; St. Louis-S. F. Ry. Co. v. Miller, 245 P. 52. Cases from other jurisdictions recognizing right to recover under similar facts. Louisville, N. O. & T. Ry. Co. v. Williams, 12 So. 957, 69 Miss. 631; Union Pacific Railroad Co. v. Mertes, 52 N.W. 1099, 35 Neb. 204; Erickson v. St. Paul & D. Ry. Co., 43 N.W. 332, 41 Minn. 500; Baumeister v. Grand Rapids & I. Ry. Co., 30 N.W. 337, 63 Mich. 557; Seaboard & Railroad Co. v. Joyner's Admr., 23 S.E. 773, 92 Va....