English v. Wabash Ry. Co.

• Decision Date: 30 July 1937
• Citation: 108 S.W.2d 51,341 Mo. 550
• Parties: Sarah English, Executrix of the Estate of Joseph Mulholland, v. Wabash Railway Company and August Hestler, Appellants
• Court: Missouri Supreme Court

108 S.W.2d 51

341 Mo. 550

Sarah English, Executrix of the Estate of Joseph Mulholland, v. Wabash Railway Company and August Hestler, Appellants

Supreme Court of Missouri

July 30, 1937

Appeal from Livingston Circuit Court; Hon. Ira D. Beals Judge.

Reversed and remanded.

Berryman Henwood and Homer Hall for appellants.

(1) The court erred in giving plaintiff's Instructions P-1, P-2 P-3 and P-4 for the reason that they are broader than the pleadings and the evidence. State ex rel. v. Patton, 77 S.W.2d 857; Riley v. Wabash Ry. Co., 328 Mo. 910 44 S.W.2d 136; Gandy v. Ry. Co., 44 S.W.2d 638; Gilliland v. Bondurant, 59 S.W.2d 686, 332 Mo. 881; American Laboratories v. Glidden Co., 59 S.W.2d 62; Edmonston v. Kansas City, 57 S.W.2d 690; Nowlin v. Pub. Serv. Co., 58 S.W.2d 331; Degonia v. Railroad Co., 224 Mo. 589; Hall v. Coal & Coke Co., 260 Mo. 369; State ex rel. v. Ellison, 270 Mo. 653, 195 S.W. 722; Telaneous v. Simpson, 12 S.W.2d 929; Krelitz v. Calcaterra, 33 S.W.2d 911; Hickman v. St. Louis Dairy Co., 90 S.W.2d 180. (2) Under the allegations of the petition plaintiff was required to prove and the jury was required to find that defendant Hestler saw plaintiff on the track. The evidence that no warning blasts of the whistle were given supports the testimony of defendant Hestler that he did not see plaintiff. Henson v. Railroad Co., 301 Mo. 429; Epstein v. Railroad Co., 197 Mo. 735; Barker v. Railroad Co., 98 Mo. 54. (3) The plaintiff proved that his hearing was perfect and that the locomotive sounded the whistle which was heard by plaintiff's witness Grubbs when he was at a greater distance from the locomotive than plaintiff was. Under this state of facts, plaintiff cannot be heard to say that he did not hear the locomotive and was not warned by it, and that he was oblivious of peril. Pope v. Railroad Co., 242 Mo. 239; Lane v. Mo. Pac. Ry. Co., 132 Mo. 4; Holland v. Railroad Co., 210 Mo. 338; Weigman v. Railroad Co., 223 Mo. 721. (4) The plaintiff failed to make out a case under the humanitarian rule and the demurrers to the evidence should have been given. Banks v. Morris & Co., 302 Mo. 267, 257 S.W. 482; Taylor v. Superior Axy-Acetylene Co., 335 Mo. 379, 73 S.W.2d 186; Goodson v. Schwandt, 318 Mo. 666, 300 S.W. 795; Markowitz v. St. Ry. Co., 186 Mo. 350, 85 S.W. 351; Hall v. Baldwin, 90 S.W.2d 146. (5) The evidence fails to prove that defendant Hestler saw plaintiff in a position of imminent peril and that thereafter he could have prevented injury to plaintiff and for this reason the demurrers of both defendants should have been given. Imminent peril means certain, immediate and impending peril. A place of imminent peril means a place where there is certain danger, and admits of no time for deliberation on the part of the person in peril between its appearance and the impending calamity. Wallace v. St. J. Ry., etc., Co., 77 S.W.2d 1014. (6) The court erred in overruling the demurrer of defendant Hestler and in giving plaintiff's Instructions P-3 and P-7, for the reason that there is no evidence that would charge him with notice of and acquiescence in use by the public. The only negligence charged against him was nonfeasance, that is, failing to stop or slacken the speed of the train or give a warning signal, for which he would not be liable to plaintiff. McGinnis v. Ry. Co., 200 Mo. 347; Stephens v. Oberman Mfg. Co., 334 Mo. 1078; Harriman v. Stowe, 57 Mo. 93; Jewell v. Bolt & Nut Co., 231 Mo. 176; Lynch v. Railroad Co., 333 Mo. 89; Michely v. Miss. Valley Structural Steel Co., 221 Mo.App. 205; Eads v. Y. W. C. A., 325 Mo. 577; Hamm v. Railroad Co., 211 Mo.App. 460.

Pross T. Cross, Gerald Cross, Louis R. Weiss and Mosman, Rogers, Bell & Buzard for respondent.

(1) Plaintiff's petition broad enough to support given instructions. Vogts v. K. C. Rys. Co., 228 S.W. 529. (2) Plaintiff's Instructions P-1, P-2, P-3 and P-4 within purview of the pleadings and evidence. Logan v. Railroad Co., 300 Mo. 611, 254 S.W. 712; Beck v. Railroad Co., 37 S.W.2d 917; Rodgers v. Frisco Railroad Co., 31 S.W.2d 546; Privitt v. Frisco Railroad Co., 300 S.W. 730; Hornbuckel v. McCarty, 243 S.W. 329; Montague v. Railroad Co., 264 S.W. 813; Dutcher v. Wabash Ry. Co., 145 S.W. 71; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Dickens v. Wells, 245 S.W. 566; Schmitter v. United Rys. Co., 245 S.W. 631; Fledderman v. Manufacturers Ry. Co., 254 S.W. 719; Milward v. Wabash Ry. Co., 232 S.W. 228; Packer v. Railroad Co., 265 S.W. 123; Hart v. Railroad Co., 265 S.W. 118; Woods v. Moffitt, 38 S.W.2d 530; Allen v. Purvis, 30 S.W.2d 200; Taylor v. Kelder, 88 S.W.2d 436. (3) Defendants' refused instructions properly refused. Larey v. Railroad Co., 64 S.W.2d 686; Wholf v. Ry. Co., 73 S.W.2d 195; Pence v. K. C. Laundry Serv. Co., 59 S.W.2d 638; Wolfson v. Cohen, 55 S.W.2d 677; State ex rel. Fleming v. Bland, 15 S.W.2d 798. (4) No error to refuse instructions when matter covered by given instructions. Volkart v. Groom, 9 S.W.2d 950; Homan v. Railroad Co., 70 S.W.2d 879; Arnold v. May Department Stores, 85 S.W.2d 755; Homan v. Mo. Pac. Ry. Co., 64 S.W.2d 625; Berry v. Frisco Railroad Co., 26 S.W.2d 995; Carney v. Railroad Co., 23 S.W.2d 1003; Grubb v. K. C. Pub. Serv. Co., 45 S.W.2d 80. (5) Both demurrers properly overruled. Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720, 94 S.W. 967; Savage v. Railroad Co., 40 S.W.2d 628; Thompson v. Ry. Co., 18 S.W.2d 401; Wise v. Railroad Co., 76 S.W.2d 118; Hall v. Baldwin, 90 S.W.2d 151; Jackson v. Mo. Pac. Ry. Co., 42 S.W.2d 932; Nicholson v. Frisco Railroad Co., 51 S.W.2d 220. (6) The testimony of plaintiff not opposed to physical facts and properly considered by jury. Schupback v. Meshevsky, 300 S.W. 467; Kelly v. K. C. Rys. Co., 225 S.W. 133; Kiefer v. St. Joseph, 243 S.W. 104; Walden v. Stone, 223 S.W. 135; Nowlin v. K. C. Pub. Serv. Co., 58 S.W.2d 330; Henry v. Mo. Ins. Co., 68 S.W.2d 857; Crenshaw v. St. L. Pub. Serv. Co., 52 S.W.2d 1039; 10 R. C. L., pp. 1008, 1009.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This case, recently reassigned to the writer, is an action for damages for personal injuries. Plaintiff was struck by a train while walking on the Wabash tracks. Plaintiff had a verdict for $ 20,000, against both the Railway Company and its engineer, from which they have appealed. Plaintiff died after judgment, and the cause has been revived in the name of his executrix, but we will refer herein to plaintiff, in our statement of facts, meaning the original plaintiff.

Defendant assigns as error the overruling of its demurrer to the evidence at the close of the case. We, therefore, state the facts shown by plaintiff's evidence, and by evidence of defendants most favorable to plaintiff's contentions. On May 22, 1924, plaintiff went on a Wabash section foreman's motorcar to the town of Missouri City to get his final pay check for track work. He had been working with a Wabash section gang, but had quit two days before. After he got his check cashed, about ten a. m., he started to walk east along the track to go from the town to the place where the gang was working in order to ride back west with them to South Liberty. The next station east of Missouri City was Excelsior Springs Junction. The Wabash was double tracked between these stations. Its tracks running east from Missouri City were on the north bank of the Missouri River for about a mile. They then curved away to the northeast and in less than a half mile began to curve back toward the river. The river had undermined the tracks at its old location, and they had to be moved to the north. They curved around some farm buildings which were known as the Grubbs' farm and were located about a mile and a half east of Missouri City. Between the house and other out buildings on the south side of the railroad tracks and the public road on the north side of the tracks there was a private farm crossing. There were trees around the house, which together with the buildings, shut off the view of the tracks to the east but there was a clear view as far as the farm crossing. The railroad tracks were raised above the surrounding flat level bottom land. Plaintiff said that he walked east in the middle of the south eastbound track between the rails all the way from Missouri City to the Grubbs' farm crossing. He said that he did not hear a whistle or bell at any time but heard a rumble of the train at the time he reached the crossing and was struck by it before he crossed over the crossing. He said there was a path in the middle of this track but found as he "walked the railroad track, part of it was already cleaned out;" and that the ballast had been cleaned out between the ties, for two or three rail lengths at a place, in ten or twelve places before he reached the farm crossing. He also said: "They had taken the dirt out and put it here at the end of the ties so as they could put it back again. They hadn't put it back yet and I had to step from tie to tie."

The section men were working around the curve about 800 feet beyond the farm crossing. They were removing old cinder ballast and raising the tracks in preparation for putting on new rock ballast. Two of the section men said that they saw plaintiff walking in the middle of the track before he reached the farm crossing. One of them, Smith, said that he saw plaintiff walking east six to ten feet west of the farm crossing and about 700 or 800 feet from where he was working that at that time he saw the train west of him about 150 to 200 feet; that he continued to look at it two or three seconds and it continued to get closer to plaintiff; that he turned his face away and went to digging between the ties again when it was probably 100 to 125 feet behind plaintiff and did not see it strike him. Another section man,...