Doyel v. Thompson

• Decision Date: 27 May 1948
• Docket Number: 40442
• Citation: 211 S.W.2d 704,357 Mo. 963
• Parties: Howard Doyel, Administrator of the Estate of Benjamin L. Doyel, Deceased, v. Frank A. Thompson, Trustee of St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

211 S.W.2d 704

357 Mo. 963

Howard Doyel, Administrator of the Estate of Benjamin L. Doyel, Deceased, v. Frank A. Thompson, Trustee of St. Louis-San Francisco Railway Company, Appellant

No. 40442

Supreme Court of Missouri

May 27, 1948

Appeal from Pulaski Circuit Court; Hon. Claude E. Curtis Judge.

Affirmed.

M G. Roberts, Frank C. Mann, C. Wallace Walter and Mann & Mann for appellant.

(1) Respondent was required to exercise the highest degree of care to discover the approaching train in time to avert the accident. Sec. 8383, R.S. 1939; Fitzpatrick v. Kansas City So. Ry. Co., 347 Mo. 57, 146 S.W.2d 560; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185; Monroe v Chicago & Alton R. Co., 297 Mo. 633, 249 S.W. 644; Threadgill v. United Rys. Co., 279 Mo. 466, 214 S.W. 161; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 362, 30 S.W. 339. (2) Where by looking respondent could have seen the train before reaching the danger zone, he is conclusively held to have seen it. Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185; State ex rel. Kansas City So. R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Carner v. St. Louis-S.F.R. Co., 338 Mo. 257, 89 S.W.2d 947; Monroe v. Chicago & Alton R. Co., 297 Mo. 633, 249 S.W. 644; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 362, 30 S.W. 339; State ex rel. Hines v. Bland, 237 S.W. 1018. (3) Testimony which is, beyond reasonable doubt, contrary to physical laws and facts of common knowledge cannot be accepted as substantial evidence. State ex rel. Kansas City So. R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Carner v. St. Louis-S.F.R. Co., 338 Mo. 257, 89 S.W.2d 947; Freie v. St. Louis-S.F. Ry. Co., 241 S.W. 671; Alexander v. St. Louis-S.F. Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023. (4) Assuming the operators of the train failed to sound the whistle and ring the bell, which failure is denied, such failure did not absolve the respondent nor lessen his duty. Borrson v. Missouri-K.-T.R. Co., 351 Mo. 229, 172 S.W.2d 835; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185; Freie v. St. Louis-S.F. Ry. Co., 241 S.W. 671; Nichols v. Chicago & A.R. Co., 250 S.W. 627; Monroe v. Chicago & A.R. Co., 297 Mo. 633, 249 S.W. 644. (5) The driver of an automobile when approaching a railroad crossing where his view is obstructed, must approach at such a speed that he can stop after passing the obstructions and before entering within the danger zone, and, if necessary, he must stop to look and listen at a place where such looking and listening is effective; respondent's failure to do so convicts him of contributory negligence as a matter of law. Borrson v. Missouri-Kansas-Texas R. Co., 351 Mo. 229, 172 S.W.2d 835; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185; Rischeck v. Lowden, 347 Mo. 426, 147 S.W.2d 650; Dickey v Wabash Ry. Co., 251 S.W. 112; Stevens v. Thompson, 175 S.W.2d 166; State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W.2d 46. (6) The verdict is under the evidence in this case, so excessive in amount as to show, upon its face, that it is the result of passion and prejudice of the jury against appellant and in favor of respondent; therefore, the judgment should not stand even under the penalty statute. Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920; Grier v. Kansas City C.C. & St. J. Ry. Co., 286 Mo. 523, 228 S.W. 454; Gaston v. St. Louis Pub. Serv. Co., 223 Mo.App. 766, 20 S.W.2d 559.

Claude T. Wood, John F. Low and Bradshaw & Fields for respondent.

(1) In stopping to look and listen for any sign of an approaching train before entering into the danger zone created by the presence of three parallel railroad tracks, the respondent was not guilty of contributory negligence as a matter of law. Nicholas v. Chicago, B. & Q.R. Co., 188 S.W.2d 511; Stepp v. St. Louis-S.F. Ry. Co., 211 S.W. 730; Advance Transfer Co. v. Chicago, R.I. & P. Ry. Co., 195 S.W. 566; Rucker v. Alton R. Co., 123 S.W.2d 24; Brice v. Payne, 263 S.W. 1005. (2) Having entered the danger zone after first stopping to look and listen, the respondent was not required to stop a second time in a place of peril to investigate further. Dobson v. St. Louis-S.F. Ry. Co., 10 S.W.2d 528; Pokora v. Wabash Ry. Co., 292 U.S. 98, 54 S.Ct. 580; Carter v. Wabash R. Co., 182 S.W. 1061; Swigart v. Lusk, 192 S.W. 138. (3) One who suddenly finds himself in a position of great peril through the negligence of another cannot be said to be guilty of contributory negligence as a matter of law if under the stress of great excitement he fails to act with deliberation and complete accuracy of judgment. Hutchison v. St. Louis-S.F. Ry. Co., 72 S.W.2d 87; Borrson v. M.-K.-T.R. Co., 351 Mo. 229, 172 S.W.2d 835; Stepp v. St. Louis-S.F. Ry. Co., 211 S.W. 730; State ex rel. Quincy, O. & K.C.R. Co. v. Trimble, 254 S.W. 846; Clark v. Atchison & Eastern Bridge Co., 24 S.W.2d 143, 324 Mo. 544; Menard v. Goltra, 40 S.W.2d 1053, 328 Mo. 368; Carter v. Wells, 40 S.W.2d 725; Swigart v. Lusk, 192 S.W. 138; Dodson v. St. Louis-S.F. Ry. Co., 10 S.W.2d 528. (4) The negligence of the sole beneficiary does not bar recovery by the administrator of the estate of the deceased under the penalty section of the Wrongful Death Statute. Herrel v. St. Louis-S.F. Ry. Co., 23 S.W.2d 102, 324 Mo. 38, 69 A.L.R. 470; Southern R. Co. v. Shipp, 169 Ala. 327, 53 So. 150; Sec. 3652, R.S. 1939. (5) The verdict was not excessive. Although there were aggravating circumstances warranting the extent of the penalty, yet it was not necessary that the respondent sustain actual pecuniary damages in order to authorize a verdict under the penalty section of the Wrongful Death Statute. Wallace v. Woods, 340 Mo. 452, 102 S.W.2d 91; Grier v. Kansas City, C.C. & St. J. Ry. Co., 286 Mo. 523, 228 S.W. 454.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Frank A. Thompson, as trustee of the St. Louis-San Francisco Railway Company, prosecutes this appeal from a judgment of $ 8,500 under the penalty section (Sec. 3652 ^[*]), for the alleged wrongful death of Benjamin L. Doyel as the result of an automobile-train grade crossing collision, in favor of Howard Doyel, as administrator of the estate of said decedent. Plaintiff's action was submitted solely on defendant's failure to give the warning required by Sec. 5213, and defendant concedes plaintiff made a submissible case thereunder. Defendant contends that contributory negligence as a matter of law precludes a recovery by plaintiff, and that the verdict is so excessive as to establish passion and prejudice and should not be permitted to stand. Plaintiff was the operator of the automobile, is the sole and only heir of the decedent, and his trial theory was that his contributory negligence would bar a recovery, his verdict directing instruction being conditioned upon a finding that both he and decedent had exercised the highest degree of care for their own safety. The issues are presented on their merits.

Howard Doyel, plaintiff here, and Benjamin L. Doyel, his father, operated a 152 acre farm one mile east of Crocker, Missouri. They were both single, Mrs. Doyel having died prior to the occurrence. The father was 65 and the son 32 years of age at the time. On December 7, 1944, soon after 7:00 P.M. the two started to Crocker to attend church services, Howard driving a 1937 six cylinder Pontiac coupe. Plaintiff described the weather as being "cloudy and dark, damp and a little foggy" and fireman Rommelman said it was "misty and damp," with "some fog," and a wind from the northwest.

The highway, a county road, runs east and west and crosses defendant's right-of-way, which extends north and south, on a right angle grade crossing, known as Bell's creek crossing. Defendant railroad has three tracks at this crossing, which is 846 feet south of the station. The station is west of the tracks. The west track is the main line track. The passing track is 8 feet 6 inches east of the main line track and the switch track is 7 feet 11 inches east of the passing track. The width of the tracks is 4 feet 11 inches. The switch track is 7 or 8 inches lower than the main line track. North of the highway and east of the tracks, at the northeast corner of the intersection, are some stock pens, extending approximately 60 feet east and west and 40 feet north and south, the loading chute being near the northwest corner of the pens. The southwest corner of the stock pens is 9 feet 7 inches east of the switch track and about 24 feet north of the center of the road. North of the stock pens were some oil storage tanks. On the switch track were three or more boxcars or cattle cars, the south end of the south boxcar being about even with or farther south than the south corner of the stock pen, and the car had an overhang of 2 feet beyond the rails. The stock pens, oil storage tanks and, especially, the railroad cars made it so one could not see north along the track until his line of vision cleared the south boxcar.

Howard Doyel and his father proceeded westward over the highway. The road was uphill as one approached the crossing for about a quarter of a mile and a short distance east of the crossing about 50 yards, was a rough place, a mudhole. The headlights of the coupe were on. Plaintiff testified that as they approached the crossing he was looking west but he did not see any locomotive headlight shining on the crossing. He stopped the coupe when 2 or 3 steps, 6 to 9 feet, east of the east rail of the switch track. The radio was not on and he and his father were not talking at the time. He put the glass in the car door down that he might listen. He was familiar with the crossing, having lived in the neighborhood six years. He heard no bell or whistle and saw nothing that indicated any train was approaching. He rolled up the glass in the door, put the car in "low gear" and started across the track. Recalling that a car...