Carroll v. Missouri Pac. Ry. Co.

Decision Date25 March 1921
Docket NumberNo. 2894.,2894.
PartiesCARROLL v. MISSOURI PAC. RY. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Scott County; Frank Kelley, Judge.

Action by Arnold Carroll against the Missouri Pacific Railway Company. Verdict for plaintiff was set aside on motion, and plaintiff appeals. Judgment affirmed.

Gresham & Blanton, of Sikeston, for appellant.

W. C. Russell, of Charleston, for respondent.

COX, P. J.

Action for damages to appellant's automobile caused by collision with respondent's train. Verdict for plaintiff, which on motion of defendant was set aside on the ground that the court had erred in refusing a peremptory instruction to find for defendant. Plaintiff has appealed.

Respondent has filed a motion to dismiss the appeal on the ground of insufficiency of the affidavit for appeal. No proof has been furnished us that notice of the filing of this motion was served as required by rule 25 (169 S. W. xxiii) of this court, and for that reason the motion to dismiss the appeal will not be considered.

The motion for new trial was sustained on the ground that the court" was of the opinion that it was shown by plaintiff's testimony that he was guilty of contributory negligence, and therefore the case should not have gone to the jury.

The evidence shows that the collision occurred at a crossing where, by reason of the location of certain buildings near the track and box cars standing on another track, plaintiff's view of the approaching train was so obstructed that he could not see it until very close to the track. He listened as he approached the track, but heard no train. His automobile was making some noise. He did not stop his car or its engine while he listened. He was running about eight or ten miles per hour, and when he reached a point where he could see the train he saw it and then used every effort possible to stop his car and avoid a collision, but he was so near the track that he could not stop until his front wheels had passed over the first rail of the track. He did stop and tried to back off, but the train was so close that it struck the front end of his car and demolished his engine.

This accident occurred in 1917 while the Act of 1911, p. 330, was in force. This act required the drivers of automobiles to "use the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury or death to persons on, or traveling over, upon or across" public roads or streets. It has been held by this court and the Kansas City Court of Appeals that the statute above only defined the duty of the driver of an automobile in his relation to other persons that might be on the public highway or streets, but did not change the common-law rule as to the degree of care he was required to exercise for his own safety and as to that the rule requiring the exercise of ordinary care applied. See Advance Transfer Co. v. Railroad, 195 S. W. 566; Hopkins v. Sweeney Automobile School Co., 196 S. W. 772; Stepp v. St. Louis & San Francisco Ry. Co., 211 S. W. 730.

But these cases were disapproved by the Supreme Court in Threadgill v. United Railways Co. of St. Louis, 279 Mo. 466, 214 S. W. 161, and it was there held that the rule requiring the highest degree of care as fixed by the statute applies as well as to his own safety as to others. This being the last pronouncement of the Supreme Court on that question, we are bound by it, and hence must judge the effect of plaintiff's testimony in this case by that rule, and if it shows that he failed to use "the highest degree of care that a very careful person would use under like or similar circumstances" than he was guilty of contributory negligence as a matter of law, and the court was right in so holding.

What acts would be required to bring the conduct of a person up to the required standard as defined by the statute must, of course, depend upon the particular facts of each case. No general rule by which to judge all cases can be promulgated. The question here is whether on the facts of this case as...

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8 cases
  • Dobson v. St. L.-S.F. Ry. Co.
    • United States
    • Missouri Court of Appeals
    • September 28, 1928
    ...Mo. 493, 233 S.W. 397, 399; State ex rel. v. Bland, 237 S.W. 1018, l.c. 1019, 1020; Hayden v. Railway, 124 Mo. 566, l.c. 572; Carroll v. Railway, 229 S.W. 234; Dickey v. Railway, 251 S.W. 112, l.c. 113; Langley v. Hines, 227 S.W. 877; Spaunhorst v. Railways, 238 S.W. 821, l.c. 823; Freie v.......
  • Goffe v. Natl. Surety Co.
    • United States
    • Missouri Supreme Court
    • October 6, 1928
    ...307; Non-Royalty Shoe Co. v. Assurance Co., 277 Mo. 399. (4) The court erred in giving plaintiff's instruction numbered 1. Carroll v. Mo. Pac. R.R. Co., 229 S.W. 234; Carroll v. Ins. Co., 249 S.W. 691; Board of Education v. National Surety Co., 183 Mo. 166. (5) The court committed error in ......
  • Goffe v. National Sur. Co.
    • United States
    • Missouri Supreme Court
    • October 6, 1928
    ... ... National Surety Company, Appellant No. 26784 Supreme Court of Missouri October 6, 1928 ... [9 S.W.2d 930] ...           Motion ... for Rehearing ... 399. (4) The court erred in giving plaintiff's ... instruction numbered 1. Carroll v. Mo. Pac. R. R ... Co., 229 S.W. 234; Carroll v. Ins. Co., 249 ... S.W. 691; Board of ... ...
  • Dobson v. St. Louis-San Francisco Ry. Co.
    • United States
    • Missouri Court of Appeals
    • September 28, 1928
    ...227 S.W. 877, 207 Mo.App. 587; Evans v. Railroad, 289 Mo. 493, 233 S.W. 397; Monroe v. Railway, 297 Mo. 633, 249 S.W. 644; Carroll v. Railroad, 229 S.W. 234; Dickey Railroad, 251 S.W. 112; Freie v. Railroad, 241 S.W. 671; Spaunhorst v. Railway, 238 S.W. 821, 209 Mo.App. 319. A review of tho......
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