Dobson v. St. L.-S.F. Ry. Co., No. 4321.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBailey
Citation10 S.W.2d 528
PartiesVADA DOBSON, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.<SMALL><SUP>*</SUP></SMALL>
Docket NumberNo. 4321.
Decision Date28 September 1928
10 S.W.2d 528
VADA DOBSON, RESPONDENT,
v.
ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.*
No. 4321.
Springfield Court of Appeals, Missouri.
Opinion filed September 28, 1928.

[10 S.W.2d 529]

Appeal from the Circuit Court of Newton County. — Hon. Chas. L. Henson, Judge.

AFFIRMED.

E.T. Miller and Mann & Mann, for appellant.

(1) The court erred in permitting witnesses for plaintiff to testify as to the effect of obstructions to the view and where the witness' automobile would have to be with reference to the main line track, before witnesses would have a view of the approaching train. See Abstract, pp. 14, 18, 19, 25, 26, 27, 30 and 38. With physical facts shown by the uncontradicted testimony, the question of whether the deceased could have seen the approaching train at a time when he, by the exercise of the highest degree of care could have stopped in a place of safety, was a live jury question in the case. The opinion of witnesses was incompetent and constitutes reversible error in that it is a conclusion of the witness and for the further reason that it invades the province of the jury. McKerall v. Railroad, 257 S.W. 166, l.c. 168; Marshall v. Taylor, 168 Mo. App. 240; Landers v. Railroad, 134 Mo. App. 80, l.c. 87; Griffith v. Casualty Co., 299 Mo. 426, 253 S.W. 1043-1047; Gricus v. Railways Co., 291 Mo. 582, 237 S.W. 763, l.c. 764; Clear v. Van Blarcum, 241 S.W. 81, l.c. 82; Unrein v. Hide Co., 244 S.W. 924; Zackwik v. Insurance Co., 225 S.W. 135, l.c. 138; Riggs v. Railroad, 216 Mo. 304, l.c. 327; Ballman v. Lueking Teaming Co., 281 Mo. 342-354; Friedman v. Railway Co., 238 S.W. 1074-1076; Wells v. Lusk, 188 Mo. App. 63, 68; Lloyd Chemical Co. v. Rag Co., 145 Mo. App. 675, 692; Horr v. Railroad, 156 Mo. App. 651, 655; Hedges v. Hill, 175 Mo. App. 441, l.c. 451; Osborne v. Eyster, 195 Mo. App. 520, l.c. 524; Popejoy v. Brick Co., 193 Mo. App. 612, 614. (2) The court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence offered at the close of all the evidence. This record justifies our position that there was no testimony of probative force from which the jury could find that the signals required by law were not given. The witnesses for respondent were either in the house, on a cold December day, with the windows and doors closed and their attention not specifically directed to the train, or, as to the three witnesses who were not in a house, one of them was so deaf that he admits he could not have heard the signals, if given, another was walking to his work and did not know that an accident had occurred until long after he had reached his place of work some distance from the scene of the accident and the other, standing north of this crossing, with his eye and mind centered upon meeting a man with whom he was to go to work and who was watching the deceased as he passed and paying no attention to the train, not seeing it until it was near the crossing. As against this entire negative testimony, defendant offered the direct, positive testimony of numerous witnesses who heard the signals by both bell and whistle and some who actually saw the movement of the bell as it rang. Aside from the question of defendant's negligence, the demurrer was well taken because deceased was guilty of negligence, as a matter of law. Dickey v. Railway, 251 S.W. 112, l.c. 114; Monroe v. Railroad, 249 S.W. 644-650. The law exacted of deceased, as he approached this crossing, the exercise of the very highest degree of care. Laws 1911, page 330. This statute "contemplates a rule of conduct for automobile drivers, upon streets, or places much used for travel." Threadgill v. Railway Co., 279 Mo. 466, 478, 214 S.W. 161, 165. "This is not a rule of evidence but a rule of law peremptory, absolute and unbending, that may not be ignored or evaded by court or jury. It is inflexible and admits of no exceptions." Monroe v. Railroad, 249 S.W. 644, l.c. 650. (3) If there is a point between the obstruction to the view and the track where, by looking deceased could have seen the approaching train in time to have stopped in a place of safety, then he is presumed either nor to have looked, or, looking, failed to heed what he saw. In either event, his conduct convicts him of negligence as a matter of law. Monroe v. Railway, 297 Mo. 633, 249 S.W. 644, l.c. 647; Kelsay v. Railway, 129 Mo. 362, l.c. 374; Sanguinette v. Railway, 196 Mo. 466, l.c. 489. Looking where one cannot see is not a fulfillment of the duty required by law. Stillman v. Railroad, 266 S.W. 1005, l.c. 1008; Monroe v. Railroad, 249 S.W. 644, l.c. 650; Kelsay v. Railway, 129 Mo. 362, l.c. 372; Hayden v. Railway, 124 Mo. 566; Langley v. Hines, 227 S.W. 877, l.c. 878. (4) The fact that the distance between the obstruction to his view and the main line track was short, made it more imperative that he either stop where he could see or approach the main line track at such a speed that, after seeing the train, he could stop. Evans v. Railroad, 289 Mo. 493, 233 S.W. 397, l.c. 399; Monroe v. Railway, 297 Mo. 633; 249 S.W. 644; State ex rel. v. Bland, 237 S.W. 1018, l.c. 1019, 1020; Freie v. Railway, 241 S.W. 671, l.c. 674; Wallace v. Railroad, 257 S.W. 507; Nichols v. Railroad, 250 S.W. 627, l.c. 628; Dempsey v. Traction Co., 256 S.W. 155, l.c. 674; Wallace v. Railroad, 256 S.W. 93, l.c. 97; Spaunhorst v. Railways, 238 S.W. 821, l.c. 824; Maclay v. Railroad, decided by this court, August 13, 1927, number 3988; Hayden v. Railways, 124 Mo. 566; Kelsay v. Railway, 129 Mo. 362, l.c. 372; Huggart v. Railway, 134 Mo. 673; Stotler v. Railway, 204 Mo. 619; Tannehill v. Railway, 213 S.W. 818, l.c. 821; Underwood v. West, 187 S.W. 84; Hayworth v. Railway, 293 S.W. 508. These facts appearing, there is no presumption that deceased was exercising due care for his own safety. Pedigo v. Railway, 272 S.W. 1029, 1030; Payne v. Railway, 136 Mo. 562; Mockowik v. Railway, 196 Mo. 550; Burge v. Railway, 244 Mo. 76, l.c. 94; Tetwiler v. Railway, 242 Mo. 178. Where an opportunity is afforded by looking to see the approaching train in time to stop, a traveller may not assume that, if there is a train approaching, the proper signals will be given, he must make use of his own senses for his protection. Nichols v. Railway, 250 S.W. 627, l.c. 628; Epstein v. Wells, 284 S.W. 845, l.c. 847; Dempsey v. Traction Co., 240 S.W. 1093, l.c. 1094; Ross v. Wells, 255 S.W. 952, l.c. 954. (5) The degree of care required depends upon the circumstances and the danger reasonably to be encountered. State ex rel. v. Bland, 237 S.W. 1018, l.c. 1019; Purdom v. Railroad, 275 S.W. 355, l.c. 357. A railroad track is a constant signal and warning of danger and every person approaching a railroad track, knowing that trains are frequently passing, must expect to find one approaching and take the necessary precaution for his own safety. Burge v. Railroad, 244 Mo. 76, l.c. 94; Morrow v. Hines, 233 S.W. 493, l.c. 495. The failure to sound the statutory signals does not abrogate or excuse the negligence of the traveler. Dempsey v. Traction Co., 256 S.W. 155, l.c. 157; Monroe v. Railroad, 249 S.W. 644; Holtkamp v. Railroad, 234 S.W. 1054, l.c. 1058; Green v. Railroad, 192 Mo. 131; Morrow v. Hines, 233 S.W. 493-495; Alexander v. Railway, 233 S.W. 44, 49; Laun v. Railway, 216 Mo. 563, l.c. 578; Schmidt v. Railway, 191 Mo. 215, l.c. 228; Stotler v. Railway, 204 Mo. 619, l.c. 637. In the following cases, in each of which the driver was held guilty of contributory negligence, as a matter of law, the opportunity to see the approaching train, was no greater than that afforded the deceased in this case. Evans v. Railway, 289 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. Railway, 241 S.W. 671, l.c. 672; Holtkamp v. Railway, 234 S.W. 1054, l.c. 1056; Hayworth v. Railroad, 293 S.W. 508.

Sizer & Gardner for respondent.

(1) The testimony that statutory signals were not given was not of a negative character and was amply sufficient to support the finding of the jury that no signals were given. Bucky-Ellis v. Railroad, 156 Mo. App. l.c. 505-506; Stotler v. Railroad, 200 Mo. l.c. 137, 138; Turney v. Railway Company, 155 Mo. App. 513. (2) There was no error in admitting the evidence of witnesses that train could not be seen by a person approaching this crossing until the box cars were passed, and that an automobile would be on the tracks before a person could see a train and stop the car. The witnesses so testifying resided near the crossing, passed over it daily, described in detail the location of the cars at the time of the accident and were testifying to facts within their observation and knowledge. Where witnesses have the means and opportunity of personal observation, and give the facts observed by them to a jury, it is permissible for them to express an opinion thereon. Such opinion is not binding upon the jury as they are to judge the credibility of the witness. Edwards v. Company, 221 S.W. 744, 747; Sandry v. Hines, 226 S.W. 646, 649; Turner v. Timber Co., 188 Mo. App. 481, 493; Eyerman v. Shehan, 52 Mo. 221, 223. (3) Instruction number two, defining when and wherein deceased might presume that the statutory signals would be given was not erroneous. McKerall v. Railroad, 257 S.W. l.c. 169; Robertson v. Railway, 264 S.W. 443; Partello v. Railroad, 240 Mo. l.c. 127. (4) The circumstances under which deceased was caught on this crossing constituted an emergency, and a person acting under the stress of an emergency and sudden peril and excitement cannot be held to act with the same promptness and intelligence as in calmer moments. Klieber v. Railroad, 107 Mo. 240-247; Weighman v. Railroad, 223 Mo. 699-720; Hanna v. Railroad, 178 Mo. App. 281, 286; Donohue v....

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8 practice notes
  • Doyel v. Thompson, No. 40442.
    • United States
    • Missouri Supreme Court
    • May 27, 1948
    ...v. Lusk, 196 Mo. App. 471, 479 et seq., 192 S.W. 138, 141[7, 9-11]; Dobson v. St. Louis-S.F. Ry. Co., 223 Mo. App. 812, 819, 823-824, 10 S.W. 2d 528, 530[2, 6, 9]; Pokora v. Wabash Ry. Co., 292 U.S. 98, 101, 104, 54 S. Ct. 580, 78 L. Ed. 1149, citing the Dodson case with approval. The insta......
  • Bishop v. New York Cent. R. Co., No. 4
    • United States
    • Supreme Court of Michigan
    • May 17, 1957
    ...R. Co., 124 Kan. 798, 800, 801, 262 P. 564, 55 A.L.R. 1335 [27 NCCA 126]; Dobson v. St. Louis-S. F. R. Co. [223 Mo.App. 812 10 S.W.2d 528], supra; Key v. Carolina & N. W. R. Co., 150 S.C. 29, 35, 147 S.E. 625; Georgia Railroad & Banking Co. v. Stanley, 38 Ga.App. 773, 778, 145 S.E. 530. Oft......
  • Judd v. Oregon Short Line Railroad Co., 6160
    • United States
    • United States State Supreme Court of Idaho
    • April 20, 1935
    ...safely made after the point of clearance had been reached and discovered. (See, also, Dobson v. St. Louis, S. F. R. Co., 223 Mo.App. 812, 10 S.W.2d 528.) The rule requiring one about to cross a railroad track to keep a lookout for an approaching train, does not, and necessarily cannot, requ......
  • McKinney v. Yelavich, No. 37
    • United States
    • Supreme Court of Michigan
    • June 12, 1958
    ...v. Missouri-K.-T. R. Co., 124 Kan. 798, 800, 801; 262 P. 564, 55 A.L.R. 1335; Dobson v. St. Louis S. F. R. Co., supra, [223 Mo.App. 812, 10 S.W.2d 528]; Key v. Carolina & N. W. R. Co., 150 S.C. 29, 35, 147 S.E. 625; Georgia Railroad & Banking Co. v. Stanley, 38 Ga.App. 773, 778, 145 S.E. 53......
  • Request a trial to view additional results
8 cases
  • Doyel v. Thompson, No. 40442.
    • United States
    • Missouri Supreme Court
    • May 27, 1948
    ...v. Lusk, 196 Mo. App. 471, 479 et seq., 192 S.W. 138, 141[7, 9-11]; Dobson v. St. Louis-S.F. Ry. Co., 223 Mo. App. 812, 819, 823-824, 10 S.W. 2d 528, 530[2, 6, 9]; Pokora v. Wabash Ry. Co., 292 U.S. 98, 101, 104, 54 S. Ct. 580, 78 L. Ed. 1149, citing the Dodson case with approval. The insta......
  • Bishop v. New York Cent. R. Co., No. 4
    • United States
    • Supreme Court of Michigan
    • May 17, 1957
    ...R. Co., 124 Kan. 798, 800, 801, 262 P. 564, 55 A.L.R. 1335 [27 NCCA 126]; Dobson v. St. Louis-S. F. R. Co. [223 Mo.App. 812 10 S.W.2d 528], supra; Key v. Carolina & N. W. R. Co., 150 S.C. 29, 35, 147 S.E. 625; Georgia Railroad & Banking Co. v. Stanley, 38 Ga.App. 773, 778, 145 S.E. 530. Oft......
  • Judd v. Oregon Short Line Railroad Co., 6160
    • United States
    • United States State Supreme Court of Idaho
    • April 20, 1935
    ...safely made after the point of clearance had been reached and discovered. (See, also, Dobson v. St. Louis, S. F. R. Co., 223 Mo.App. 812, 10 S.W.2d 528.) The rule requiring one about to cross a railroad track to keep a lookout for an approaching train, does not, and necessarily cannot, requ......
  • McKinney v. Yelavich, No. 37
    • United States
    • Supreme Court of Michigan
    • June 12, 1958
    ...v. Missouri-K.-T. R. Co., 124 Kan. 798, 800, 801; 262 P. 564, 55 A.L.R. 1335; Dobson v. St. Louis S. F. R. Co., supra, [223 Mo.App. 812, 10 S.W.2d 528]; Key v. Carolina & N. W. R. Co., 150 S.C. 29, 35, 147 S.E. 625; Georgia Railroad & Banking Co. v. Stanley, 38 Ga.App. 773, 778, 145 S.E. 53......
  • Request a trial to view additional results

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