Chawkley v. Wabash Railway Co.

• Decision Date: 27 June 1927
• Docket Number: 25801
• Citation: 297 S.W. 20,317 Mo. 782
• Parties: Blanche Chawkley v. Wabash Railway Company and Soper J. Taul, Administrator of Estate of W. H. Long, Appellants
• Court: Missouri Supreme Court

297 S.W. 20

317 Mo. 782

Blanche Chawkley v. Wabash Railway Company and Soper J. Taul, Administrator of Estate of W. H. Long, Appellants

No. 25801

Supreme Court of Missouri

June 27, 1927

Motion for Rehearing Overruled July 11, 1927.

Appeal from Grundy Circuit Court; Hon. L. B. Woods, Judge.

Reversed and remanded.

S J. Jones, D. F. Warren, H. L. Moore and Homer Hall for appellants.

(1) The court erred in refusing the peremptory instructions requested jointly and severally by the defendants at the close of all the evidence in the case directing the jury to find and return a verdict in favor of the defendants. Under all of the evidence in the case plaintiff failed to make a case for the jury. State ex rel. Wabash Ry. Co. v. Bland, 281 S.W. 690; State ex rel. v. Bland, 237 S.W. 1018; Sullivan v. Gideon Railroad Co., 271 S.W. 983; Betz v. Railroad, 253 S.W. 1089; Frie v. Ry Co., 241 S.W. 671; George v. Railroad, 251 S.W. 729; Beals v. Ry. Co., 256 S.W. 733; Guyer v. Railroad, 174 Mo. 350; Monroe v. Railroad, 297 Mo. 653; Boyd v. Railroad, 105 Mo. 371; Kelsy v. Railroad, 129 Mo. 374; King v. Railroad, 211 Mo. 1; Kries v. Railroad, 148 Mo. 333; Mockowik v. Railroad, 196 Mo. 570; Burge v. Railroad, 244 Mo. 76; Kelle v. Railroad, 258 Mo. 78; Rollinson v. Railroad, 252 Mo. 525. Even under the last-chance doctrine, some allowance of time must be made for the human mind to grasp the situation in an emergency and to realize the danger, and to act. Degonia v. Railroad, 224 Mo. 596; Burge v. Railroad, 244 Mo. 102; McGee v. Railroad, 214 Mo. 543; White v. Railroad, 159 Mo.App. 509. (2) The court erred in not declaring as a matter of law that there could be no recovery on the first count of the petition, for the reason that it clearly appears that if Ernest Chawkley, the driver of the automobile, had driven the same in a careful and prudent manner and exercised the highest degree of care which the law enjoined upon him the collision would not have occurred and hence in no event under the evidence in the record could there be a recovery for his death. Laws 1921 (Ex. Sess.) 91, sec. 19; Monroe v. Railroad, 297 Mo. 633, 653; Threadgill v. United Railways Co., 279 Mo. 467; Jackson v. Bell Tel. Co., 281 Mo. 358. (3) The court erred in refusing and denying defendants' motions to discharge the jury and continue the cause because of the fact that plaintiff twice fainted in the court room in the presence of the jury during the trial and each time had to be carried from the court room in the view and presence of the jury. Gurley v. St. Louis Transit Co., 259 S.W. 895; Stutz v. Milligan, 223 S.W. 128; Ullom v. Griffith, 263 S.W. 876; Franklin v. Kansas City, 260 S.W. 503; Savings Bank v. Denker, 275 Mo. 607; Wray v. State, 154 Ala. 36, 16 Am. & Eng. Ann. Cases, 364. (4) The plaintiff had no right to maintain the action under the second and third counts of the petition for the death of the minor children of plaintiff and Ernest Chawkley, for the reason that the father of said children survived them and whatever right of action, if any, was created by the death of said children passed to the plaintiff and Ernest Chawkley in equal shares, and upon the death of said Ernest Chawkley, after the death of said minors, the right of action, if any, for the death of said minors passed to and vested in the estate of Ernest Chawkley and the plaintiff in equal shares, and plaintiff had no right to maintain this action in her own name alone for said deaths. State ex rel. Thomas v. Daues, 283 S.W. 51; Betz v. Ry. Co., 284 S.W. 455; Bates v. Sylvester, 205 Mo. 493. (5) The court erred in permitting Mrs. Jenkins, a witness for plaintiff, to testify, over defendants' objections, that defendant Long came to her after the accident while she was in the automobile and asked if she was hurt and said, "It is our fault." The question as to whose fault it was, was the very issue that was being tried by the jury and was for the jury to determine. It was prejudicial to both defendants and particularly to the Wabash Company. (6) The testimony of the plaintiff's medical witnesses in response to hypothetical questions was erroneous. These questions were based upon assumptions not proved and upon plaintiff's physical condition shown to be the result of childbirth. They called for and elicited mere conclusions and speculation, and based one inference upon another, and invaded the province of the jury to determine the vital and essential facts. Jackmann v. Railroad, 187 S.W. 786; Castanie v. Railroad, 249 Mo. 192, 194; Roscoe v. Met. Street Ry. Co., 202 Mo. 576; Glasgow v. Railroad, 191 Mo. 347, 359; Mahany v. Kansas City Rys. Co., 286 Mo. 601. (7) The court erred in overruling defendants' objection to the testimony of Dr. Hass as to what he might attribute the displacement of the womb to and as to whether plaintiff's actions indicated to him a mental derangement, for the reason (a) the question assumed the accident caused the displacement; (b) that there was no evidence to show that the accident had caused any such condition or that it had not existed before the accident; (c) the witness testified that the birth of plaintiff's eight children had caused the condition; (d) because there was no relation between this condition and the death of plaintiff's husband and children, which reference was wholly immaterial and prejudicial, and (e) because the question called for a mere conclusion, guess and speculation by asking what you might attribute the cause of the displacement to. Cardinal v. Kemp, 309 Mo. 241, 274; Perkins v. Wilcox, 294 Mo. 700, 242 S.W. 978; Castanie v. United Rys., 249 Mo. 192; Magill v. Boatmen's Bank, 288 Mo. 489, 232 S.W. 448. (8) The court erred in overruling defendants' objections to the testimony of the medical witnesses for plaintiff to the effect that she was mentally deranged and crazy, had epilepsy, and might die as the result thereof, and in overruling defendant's verified motion to continue the case because testimony of such conditions were outside the scope of the petition and defendants were not prepared to meet that issue. Hall v. Coal & Coke Co., 260 Mo. 351, 372; Hibbler v. Rys. Co., 292 Mo. 14, 237 S.W. 1017; Walquist v. Rys. Co., 292 Mo. 34, 237 S.W. 495; Connor v. Rys. Co., 298 Mo. 19, 250 S.W. 576. (9) The defendants were not liable for the mental condition of the plaintiff, and the court erred in admitting evidence of her mental condition and of the possible permanent duration of it and of the effects that might result from it. The defendants could not be liable for the mental condition of the plaintiff unless it was shown by the evidence to have been the direct and proximate result of the negligence of the defendants and directly connected with bodily injury received by the plaintiff as the result of such negligence. Braun v. Craven, 175 Ill. 405; Indianapolis & St. Louis Railroad Co. v. Stables, 62 Ill. 313; Keyes v. Railway Co., 36 Minn. 290; Scheffer v. Railroad Co., 105 U.S. 249; Haile v. Ry. Co., 60 F. 557, 9 C. C. A. 134; Derry v. Fletner, 118 Mass. 131; Hoag v. Railroad Co., 85 Pa. St. 293; C. St. P. M. & O. Railroad Co. v. Elliott, 55 F. 950. The defendants are not liable for any mental suffering or derangement resulting from shock or grief produced by the death of plaintiff's husband and children. The admission of testimony of this kind and of the supposed future effect upon plaintiff was erroneous. Perkins v. Wilcox, 294 Mo. 700, 242 S.W. 974; Trigg v. Railroad, 74 Mo. 153; Connell v. Telegraph Co., 116 Mo. 34; McCardle v. Dry Goods Co., 271 Mo. 111. (10) The court erred in admitting the testimony of the witness Waters that if he had been in the engine he would have attempted to warn the persons in the automobile. This testimony invaded the province of the jury and set the judgment and conclusions of the witness as the test by which the action of the engineer and fireman was to be weighed and the liability of the defendants determined. Indianhoma Refining Co. v. Fire Ins. Co., 242 S.W. 712; Unrein v. Hide Co., 295 Mo. 353, 244 S.W. 928; Heberling v. Warrensburg, 133 Mo.App. 547; King v. Mo. Pac. Ry. Co., 98 Mo. 235; Bowman v. Coal & Mining Co., 168 Mo.App. 708; Eubank v. City of Edina, 88 Mo. 650; Disbrow v. Storage & Fuel Co., 170 Mo.App. 585. (11) The evidence shows that the plaintiff was guilty of negligence which directly contributed to her injury and for that reason she is not entitled to recover on the ground of failure to give the statutory signals, and the court erred in refusing to give defendants' instruction, withdrawing that issue from the jury and directing a verdict for defendants on that issue. Henderson v. Railroad, 284 S.W. 794; Authorities cited under point 1.

Ed. M. Harber, A. G. Knight, Gerald Cross and Pross T. Cross for defendant.

(1) Plaintiff made a case under each count of the petition, and the peremptory instructions requested were properly denied. The evidence in the case clearly showed that plaintiff was entitled to have her cause, on each count, submitted to the jury under the humanitarian doctrine. The evidence established her right to recover on account of a violation of the statute requiring the giving of the bell or whistle signal. However negligent the occupants of the automobile may have been, defendants will be liable under the humanitarian doctrine, if the fireman either saw, or by the use of ordinary care could have seen, the automobile approaching the crossing without checking its speed and apparently unmindful of the approach of the train, in time to have prevented the collision by either giving a warning, or stopping or checking the speed of the train. Allen v. Railway, 281 S.W 737; Zumwalt v. Railway, 266 S.W. 717; Logan v. Railroad, 254 S.W. 705; State ex rel. Wabash v. Trimble, 260 S.W. 1000; Chapman v....