Chapman v. Missouri Pacific Railroad Co.

• Citation: 269 S.W. 688,217 Mo.App. 312
• Parties: JESSE T. CHAPMAN, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Decision Date: 06 March 1925
• Court: Court of Appeal of Missouri (US)

269 S.W. 688

217 Mo.App. 312

JESSE T. CHAPMAN, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Springfield

March 6, 1925

Appeal from the Circuit Court of Mississippi County.--Hon. Charles A. Killian, Special Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

James F. Green, of St. Louis, and W. C. Russell, of Charleston, for appellant.

(1) The respondent was guilty of contributory negligence as a matter of law, and was not entitled to go to the jury under the "humanitarian doctrine." Therefore, appellant's demurrers, timely offered, should have been sustained. Nichols v. Railroad Co., 250 S.W. 627; Henderson v. Railroad Co., 248 S.W. 987; State ex rel. Hines v. Bland, 237 S.W. 1018; Holtcamp v. Railroad Co., 234 S.W. 1054; Evans v. Railroad Co., 233 S.W. 397; Morrow v. Hines, 233 S.W. 493; Grocery Co. v. Railroad Co., 238 S.W. 514. (2) There are several acts of negligence charged in the petition, none of which were proven, and it was error for the court to give plaintiff's instruction No. 2, which told the jury "That if they found that said injuries so inflicted were the direct result of the negligence of the defendant, as described in the petition, your verdict should be for the plaintiff, unless you believe and find from the evidence that plaintiff was guilty of contributory negligence, which caused the injuries, as such contributory negligence is defined in other instructions in this case." This instruction permitted the jury to pick out the acts described in the petition, whether proven or not, and return a verdict accordingly. Furthermore, the court never gave any instruction defining "contributory negligence." Fleishmann v. Miller, 38 Mo.App. 177; Fisher v Transit Company, 198 Mo. 562; Kohr v Metropolitan, 117 Mo.App. 302; Jaffi v. Railway Co., 205 Mo. 450, 472. (3) The automobile in which respondent was riding was traveling very slowly toward the railroad track, and if appellant's engineer saw it, he had the right to presume it would stop without the danger line, and the court should have so instructed the jury by giving defendant's instruction No. 3. Reno v. Railway Co., 180 Mo. 469; Roenfeldt v. Railway Co., 180 Mo. 566; McGee v. Railway Co., 153 Mo.App. 498; Schall v. United Ry. Co., 212 S.W. 890; Boyd v. Railway Co., 105 Mo. 371. (4) The court should not have submitted the case to the jury under the "Humanitarian" or "Last Clear Chance" doctrine. Alexander v. Railroad Co., 233 S.W. 47; Hall v. Railroad, 240 S.W. 175; Sorrell v. Payne, 247 S.W. 462; Haley v. Railroad, 197 Mo. 25; Coby v. Railroad, 174 Mo.App. 648; Tannehill v. Railroad, 279 Mo. 158; Beal v. Railway Co., 256 S.W. 733; Betz v. Railway Co., 253 S.W. 1094; Banks v. Morris, 257 S.W. 482. (5) The respondent in this case was a minor, and his parents were entitled, as a matter of law, to his earnings until he attained his majority, and it was error for the court to include his loss of earnings as an element of damage in the instructions given on the measure of damages. Buck v. Power Co., 46 Mo.App. 555; Thomas v. Railway Co., 180 S.W. 1030; Yates v. Brown, 218 S.W. 897. (6) Plaintiff's instruction No. 5, does not correctly state the Humanitarian Doctrine. It disregards the safety of the passengers on the train, and tells the jury that plaintiff was entitled to recover if the defendant's servants did not sound the whistle or ring the bell, neither of which would have any tendency whatever to check the speed of the train. Banks v. Morris, supra. (7) The plaintiff was only confined to his bed ten or twelve days, and only paid out $ 56 for doctor's bill, and a $ 54 board bill, making a total of $ 110. There is no evidence of any permanent injury except the statement of the plaintiff that he suffers from pains in his back. Appellant submits that $ 2390 is very excessive, when no physician testified that his injuries were permanent. Dr. Nichols said he could not say without examination that the pain complained of, occurring after eighteen months, was caused by the hurt. Dr. Malcolm never made any examination. He says under certain conditions you might look for certain things, but does not state that the plaintiff has any permanent injury.

J. M. Haw and James A. Boone, both of Charleston, for respondent.

(1) Respondent was not guilty of contributory negligence as a matter of law, nor as a matter of fact. He was the guest of Springer, the owner and driver of the car, who was sitting on the side of the car from which the train was approaching (Abs. pp. 10 and 32). Respondent looked to see if any train was approaching from his side, but could not see on Springer's side, the latter being between him and the isinglass (Abs. p. 41). If the driver was negligent, his negligence could not be imputed to respondent. Stotler v Railroad, 200 Mo. 107, 143-148; Byars v. Railroad, 161 Mo.App. 692, 704; Marsh v. Railroad, 104 Mo.App. 577, 586. (2) If instruction No. 2, given in behalf of plaintiff is not artistically drawn or as clear as it should be, any inaccuracy or defect therein is cured by other instructions in the case. Instructions 3 and 5, for plaintiff, clearly define the issues on which the case was decided and instructions No. 4, given for defendant, is broad enough and definite enough to define the issues. Muehlebach v. Muehlebach Brewing Co., 242 S.W. 174, 178; Bleish v. Rhodes, 242 S.W. 971, 973; Tranbarger v. Railroad, 250 Mo. 46, 58. Defendant's instruction No. 4 submitted the case on the issue as to whether plaintiff's injury was caused by "any negligence of the employees in charge of defendant's train" and defendant cannot be heard to complain, because respondent's instruction No. 2 is similarly worded, in fact confines the issues within narrower bounds. Bettoki v. Northwestern Coal & Mining Co., 180 S.W. 1021; Moore v. McHaney, 178 S.W. 258, 191 Mo.App. 686; Holman v. City of Macon, 177 S.W. 1078; Joggard v. Metropolitan St. Ry. Co., 174 S.W. 371, 264 Mo. 142, 146-7; Tranbarger v. Chicago & A. R. Co., 250 Mo. 46, 58. (3) It is needless to cite authorities to sustain the refusal of appellant's instruction No. 3. It totally ignores the humanitarian rule. The cases cited under point 4 herein abundantly show that it was not error to refuse this instruction. (4) The case was properly submitted to the jury under the "humanitarian" or "last clear chance" doctrine. State ex rel. v. Trimble et al., 260 S.W. 1000; Andrews v. Parker, 259 S.W. 807; Sullivan v. Gideon & N. I. R. Co., 247 S.W. 1010; Gilbert v. Mississippi R. & B. T. R. Co., 226 S.W. 263; Wagner v. Pryor et al., 222 S.W. 857. (5) It was not error for the court to include respondent's loss of earnings in the instruction given on the measure of damages. The father is a party to the suit as next friend for respondent and as such is asking for a recovery for the son. He could not then sue appellant for them in his own behalf. Besides, the evidence shows that the boy was supporting his parents (Abs. p. 29). The parent's rights to the earnings of his minor son are not absolute but contingent upon his actually providing support for the infant and retaining parental control over him. Evans v. Kansas City Bridge Co., 247 S.W. 213. A minor has a right to include the value of his earnings as an element of damages. Stotler v. Railroad, 200 M. 144-142; Wagner v. Construction Co., 220 S.W. 897, 898. (6) Appellant cannot complain of respondent's instruction No. 5 (Abs. pp. 45-46). It is much milder than the usual approved form. It specifically restricts the negligence for which defendant could be held responsible to a failure "to use ordinary care, with means at hand to have avoided the injury to plaintiff, by sounding the whistle or ringing the bell." It is a matter of common knowledge, of which the court will take judicial notice, that merely sounding the whistle or ringing the bell of a passenger train can, under no circumstances, imperil "the safety of the passengers on the train." (7) Respondent was rolled under the automobile, in front of the train, about seventy-eight feet. He had several wounds on his head (Abs. pp. 21 and 31); abrasions in several places (Abs. p. 22); broken ribs (Abs, p. 31); impaired physical condition after returning to school (Abs. p. 26); and apparently permanent injury to back and spine (Abs. pp. 28 and 31). The amount of the judgment is far from excessive, in fact, it is meager. Banks v. Morris & Co., 257 S.W. 482, 486; Muehlebach v. Muehlebach Brewing Co., 242 S.W. 174, 179; Stotler v. Railroad, 200 Mo. 142 and 148. (8) The question of negligence was one for the jury and its finding is binding on the court. Gilbert v. Mississippi River & B. T. R. Co., 226 S.W. 263; Maginnis v. Mo. Pac. Ry., 268 Mo. 667, 187 S.W. 1165; Lindsay v. Sonora Gold Min. and Mill. Co., 196 S.W. 764; St. Louis Police Relief Assn. v. Bonding Co., 196 S.W. 1148, 1152. The statute required defendant to continuously sound the whistle or ring the bell when approaching crossings. R. S. 1919, sec. 9943. The jury having found that this duty was not performed the burden was on the defendant to show that the failure to sound the whistle or ring the bell was not the cause of the injury. Monroe v. Chicago & A. R. Co. et al., 219 S.W. 68, 280 Mo. 483; McGee v. Railway, 214 Mo. 530. Defendant's failure to call as witnesses the engineer and firemen who were on the engine at the time of the collision amounts to a practical admission of negligence on the part of defendant. Plaintiff had a right to urge this on the jury as a strong circumstance against defendant. State v. Linders, 253 S.W. 716; McCord v. Schoff, 216 S.W. 320, 321, 279 Mo. 558; State ex rel. Trimble, 260 S.W. 1000, 1003-4; Reyburn v. Railroad, 187 Mo. 565, 575; McClanahan v. Railroad, 147 Mo.App. 386, 410. (9) The...