Daniel v. Pryor

• Decision Date: 15 December 1920
• Docket Number: No. 21416.,21416.
• Citation: Daniel v. Pryor, 227 S.W. 102 (Mo. 1920)
• Parties: DANIEL v. PRYOR et al.
• Court: Missouri Supreme Court

227 S.W. 102

DANIEL v.PRYOR et al.

No. 21416.

Supreme Court of Missouri, Division No. 2.

December 15, 1920.

Rehearing Denied December 30, 1920.)

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by William T. Daniel against Edward B. Pryor and Edward F. Kearney, receivers of the Wabash Railroad Company.From judgment for plaintiff, defendants appeal.Reversed and remanded.

This action was commenced by respondent in the circuit court of the city of St. Louis, Mo., on May 20, 1916, against the above-named Pryor and Kearney, as receivers of the Wabash Railroad Company, and the Terminal Railroad Association of St. Louis, Mo., a corporation, as defendants, to recover damages alleged to have been sustained by him on April 7, 1915, at the intersection of Mound and First streets, in said city of St. Louis, at which time, it is alleged, the Wabash train, running south, collided with an automobile driven by plaintiff, traveling west, over the crossing of said Mound and First streets, in which collision plaintiff suffered bodily injuries and his automobile was damaged.The petition contained three counts.The first was based upon general negligence and a recovery sought under the humanitarian doctrine.The second count is based upon the alleged negligence of defendants in failing to give the statutory signals required by section 3140, R. S. 1909.

Appellants Pryor and Kearney, as receivers aforesaid, filed an amended answer, containing a general denial and a plea of contributory negligence.Plaintiff filed a reply to said answer in the form of a general denial.

At the conclusion of plaintiff's evidence in chief, he dismissed as to defendantTerminal Railroad Association of St. Louis, and likewise dismissed as to the third count in his petition.The case was thereupon submitted to the jury, under the humanitarian rule as to first count, and under section 3140, R. S. 1909, as to second count of petition.The amount of damages sought to be recovered under each count was $20,000.

The evidence tends to show that Mound street runs east and west; that First street runs practically north and south, and crosses Mound street at right angles; that the tracks of the Terminal Railroad Association at this point are laid north and south in First street; that there are two main-line tracks at this crossing, running north and south; that trains traveling north pass over the east track and those traveling south over the west track; that Mullanphy street, running east and west, is about 600 feet south of Mound street; that west of this crossing the "Burlington" yards are located, and cross Mound street at right angles; that there is a viaduct in Mound street, extending from the west side of "Burlington" yards, east to the west side of First street, at which point the viaduct turns to the north parallel with the main-line tracks in First street, and comes to the ground at Brooklyn street, which is from 300 to 400 feet north of Mound street; that the train which injured plaintiff was coming from the north on the west or south-bound track; that there is a flour warehouse at the northeast corner of Mound and First streets, and east of the east or northbound track; that there is a switch or spur track, extending from the east track, south along the west side of the flour warehouse to a point a short distance south of the south line of said building; that this track was used for the placing of cars to be loaded from a door in the west side of the warehouse; that there is also a large telegraph pole, west of said warehouse, with pipes around it, which, to some extent, would, obstruct the view of those coming west on Mound street, in looking north, until they had arrived at a point west of same; that, as plaintiff approached said Mound street crossing from the east, there was a box car standing on said switch track,. west of the flour warehouse, and extending into Mound street several feet south of said warehouse; that plaintiff's place, of business was located on Mound street about 300 feet east of the crossing where he was struck; that the accident occurred between 5:30 and 6 o'clock p. m. on the afternoon of April 7, 1915; that plaintiff was badly injured in the collision and his Dodge automobile damaged.

There was a conflict in the testimony as to whether the bell on the railroad train was ringing as it approached the Mound street crossing, and likewise a conflict as to whether the whistle of said engine was sounded.The record discloses a conflict between respondent's evidence and that of appellants relating to the alleged contributory negligence of plaintiff at the time and place of accident.

Such other matters as we may deem important will be considered in the opinion.Plaintiff obtained a judgment on second count for $10,000.The jury returned a verdict for defendant on the first count of petition.

Appellants, as receivers aforesaid, duly appealed the cause to this court from the judgment rendered against them on said second count.

N. S. Brown and Hall & Minnis, all of St. Louis, for appellants.

George E. Mix and Charles E. Morrow, both of St. Louis, for respondent.

RAILEY, C.(after stating the facts as above).

1.It is contended by appellants that plaintiff was guilty of contributory negligence, as a matter of law, in going upon the west track in front of the on-coming train, without having exercised reasonable care to learn of its approach.

Respondent contends that appellant's plea of contributory negligence is insufficient to tender an issue on this subject.The answer, in addition to the general denial, contains the following:

"For further answer to said petition, and each count thereof, these defendants say that, if plaintiff received any injuries or damage to himself or to his automobile as alleged in his petition, such injuries and damage were the result of his own negligence and failure to exercise reasonable care for his own safety in crossing the railroad tracks at the time and place alleged in the petition, and for such injuries and damage these defendants are not liable."

Respondent filed no motion to require said answer to be made more specific and certain, but, on the contrary, tendered an issue as to plaintiff's contributory negligence by filing a reply in the form of a general denial.In addition to foregoing, defendant examined a number of witnesses for the purpose of showing that plaintiff was guilty of contributory negligence in going upon the track in front of the moving train when he could have learned of its approach by exercising due care before coming to either track.No objection was made to this testimony on the ground that the answer did not tender an issue on the defense of contributory negligence.In other worlds, plaintiff accepted the plea as sufficient, put the same in issue by his reply, and tried the case throughout as though contributory negligence was an issue in the case.It is now too late to question the above plea in the appellate court.

2.In determining whether plaintiff should be nonsuited, as a matter of law, on account of his alleged contributory negligence, the duty imposed by law upon the trial court should not be confounded with that devolving upon the appellate court after the case has reached the latter by appeal.Judge Wagner, in Reid v. Piedmont & Arlington LifeIns. Co., 58 Mo. loc. cit. 429, 430, in considering the relative duties of both courts, said:

"Defendant has filed its motion for a rehearing in this case on the ground that the verdict of the jury was unsupported by the evidence and in direct conflict with it.It is needless to repeat what has been so often said, that this court will not undertake to weigh the evidence.Such a course would be entirely inappropriate in an appellate tribunal.The opportunity for judging of the credibility of witnesses is entirely denied to us.Hence when there is any evidence to support the verdict we cannot interfere.The evidence may be slight, and it may be contradictory, but we cannot tell the proper credit that should be attached to it. * * *

"But in this connection it is well enough to make another remark.Constant complaints are reaching us that in some of the circuits the rule adopted here is followed, and that the judges consider themselves bound thereby.But this is founded in an entire misapprehension.The trial courts have opportunities which we have not.In witnessing and presiding over the trial, they are put in possession of facts which we cannot possibly attain.They see the witnesses; can form an opinion respecting their veracity; can observe whether they are biased or prejudiced; can notice their willingness or unwillingness, and a great many other circumstances which it is impossible to transfer to paper.They can also form a correct conclusion as to whether any improper influences operated on the jury in producing the verdict.All these considerations render it peculiarly proper that the question of granting new trials, on account of the verdict being against the weight of testimony, should be exclusively exercised by the court trying the cause; and where the trial court is of the opinion that the verdict is not supported by the evidence, or is against the weight of evidence, it should never hesitate in exercising the power and giving the aggrieved party a new trial."

The law, as thus declared by Judge Wagner has been reaffirmed by many subsequent cases in this court, some of which are as follows: Iron Mountain Bank v. Armstrong, 92 Mo. loc. cit. 279, 280, 4 S. W. 720;Bank v. Wood, 124 Mo. loc. cit. 77, 27 S. W. 554;Chitty v. Iron Mountain Ry. Co., 148 Mo. loc. cit. 78-79, 49 S. W. 868;Schmidt v. St. Louis Railroad Co., 149 Mo. loc. cit. 282, 50 S. W. 921, 73 Am. St. Rep. 380;Chouquette v. S. Electric R. Co., 152 Mo. loc. cit....