Eubank v. K.C. Terminal Ry. Co.

• Decision Date: 03 July 1940
• Docket Number: No. 36083.,36083.
• Parties: QUINN C. EUBANK v. KANSAS CITY TERMINAL RAILWAY COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

142 S.W.2d 19

QUINN C. EUBANK v. KANSAS CITY TERMINAL RAILWAY COMPANY, a Corporation, Appellant.

No. 36083.

Supreme Court of Missouri.

Division Two, July 3, 1940.^*

Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.

AFFIRMED.

S.W. Sawyer, John H. Lathrop, John N. Monteith and James F. Walsh for Kansas City Terminal Railway Company.

(1) Under the law and decisions of the State of Kansas, plaintiff cannot recover on the theory of primary negligence. Plaintiff testified that at night by means of the street lights he could see distinctly an object without any light on it, 25 or 30 feet north of the boulevard; that he proceeded eastward toward the crossing and stopped his street car 12 to 14 feet west of the west railroad track; while stopped, he looked to the north and actually saw the engine just north of the north sidewalk. It was not to exceed 30 feet to the north of him. Plaintiff testified that he could not swear whether or not it was moving. The undisputed fact is that the engine never stopped north of the boulevard and when plaintiff saw it, it was then in fact moving southwest into the boulevard. Every other witness both for plaintiff and defendant who saw the engine at or near that point, so testified. Consequently, the undisputed evidence shows that plaintiff, while the street car was stopped in a place of safety, saw the engine, which was then in fact moving into the boulevard, and plaintiff without waiting or without making sure that he could proceed in safety, started the street car and went upon the railroad track where the collision occurred not more than a second after the car reached the track. Under such circumstances, plaintiff was, as a matter of law, guilty of negligence contributing to his injuries, and it was error to refuse defendant's peremptory instruction to find for the defendant and to refuse its instructions withdrawing primary negligence from the jury. It was also error for the court to submit the case to the jury on any issue of primary negligence, including that attempted to be submitted in plaintiff's Instruction 2. Woodward v. Bush, 282 Mo. 163, 220 S.W. 844; McCune v. Thompson, 147 Kan. 57, 75 Pac. (2d) 295; Dickerson v. M.-K.-T. Ry. Co., 149 Kan. 314, 87 Pac. (2d) 587; Bazzell v. A., T. & S.F. Ry. Co., 134 Kan. 272, 5 Pac. (2d) 806; Brim v. A., T. & S.F. Ry. Co., 136 Kan. 159, 12 Pac. (2d) 717; Wehe v. A., T. & S.F. Ry. Co., 97 Kan. 194, 156 Pac. 743; Beech v. M.-K.-T. Ry. Co., 85 Kan. 90, 116 Pac. 216; Pritchard v. A., T. & S.F. Ry. Co., 99 Kan. 600, 162 Pac. 316; Kirkland v. A., T. & S.F. Ry. Co., 104 Kan. 388, 179 Pac. 364; Sec. 66-321, R.S. Kansas, 1935; Grimes v. St. L.-S.F. Ry. Co., 106 S.W. (2d) 466. (2) Even if it was proper to submit the case on primary negligence, plaintiff's Instruction 2 was erroneous for it assumed that it was the duty of the men operating the engine to keep a constant lookout for plaintiff, without submitting whether ordinary care imposed such a duty. Haines v. Bridges Asphalt Co., 55 S.W. (2d) 433; Atchison, T. & S.F. Ry. Co. v. Judah, 65 Kan. 474, 70 Pac. 347; Blackwell v. Railroad, 331 Mo. 34, 52 S.W. (2d) 816; Kirkdoffer v. Frisco, 37 S.W. (2d) 572. (3) Plaintiff was not entitled to recover on the so-called last clear chance doctrine of Kansas. He was negligent as a matter of law in going on the railroad track immediately in front of a moving engine, and his negligence never ceased. Goodman v. K.C.M. & S. Ry. Co., 137 Kan. 508, 21 Pac. (2d) 324; Buchhein v. A., T. & S.F. Ry. Co., 147 Kan. 192, 75 Pac. (2d) 282; Bazzell v. A., T. & S.F. Ry. Co., 133 Kan. 483, 300 Pac. 1110. (4) Plaintiff's Instruction 1 attempting to submit the last clear chance doctrine of Kansas is erroneous. Haines v. Bridges Asphalt Co., 55 S.W. (2d) 431; Buchhein v. A., T. & S.F. Ry. Co., 147 Kan. 192, 75 Pac. (2d) 282; Bazzell v. A., T. & S.F. Ry. Co., 133 Kan. 483, 300 Pac. 1110. (5) The court erred in excluding the evidence and offer of proof that plaintiff's witness Johnson, the taxicab driver, following the accident had received from the street car company money by way of a settlement, since such evidence affected his credibility. Gurley v. St. Louis Transit Co., 259 S.W. 898; Paepke v. Stadelman, 300 S.W. 845; Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 279 S.W. 97; Dodd v. Independence Stove Co., 330 Mo. 662, 51 S.W. (2d) 119; Carlson v. K.C. Auto Transit Co., 221 Mo. App. 537, 282 S.W. 1041.

Hogsett, Murray, Trippe, Depping & Houts for respondent.

(1) The court did not err in refusing to withdraw from the jury the issue of primary negligence. Primary negligence on the part of defendant was abundantly established and appellant's defense of contributory negligence was at most a question for the jury. Hill v. Harvey, 201 S.W. 537; Binsbacher v. St. Louis Transit Co., 108 Mo. App. 3; Jockers v. Borgman, 29 Kan. 113; Losey v. Ry. Co., 84 Kan. 232; Alabama City Ry. v. Bullard, 157 Ala. 618; 4 A.L.R. 990; St. Louis & S.F. Ry. v. Dawson, 64 Kan. 99; A., T. & S.F. Ry. Co. v. Wilkie, 77 Kan. 791; Whitehead v. Ry. Co., 83 Kan. 222; Fusili v. Mo. Pac., 45 Mo. 540; Moses v. Mo. Pacific, 138 Kan. 347; Weller v. Railway, 164 Mo. 180. (2) The court did not err in giving plaintiff's Instruction 2. As a matter of law defendant owed a duty to keep a lookout at the crossing and the instruction also required the jury to find such duty. The instruction properly submitted to the jury the negligence of defendant in failing to warn. It did not erroneously conflict with instructions W and Z. It properly submitted the ultimate facts upon which plaintiff was entitled to recover and was not a roving commission. Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50; Hoelzel v. Rock Island, 337 Mo. 61, 85 S.W. (2d) 130; Mayfield v. K.C. So., 337 Mo. 79, 85 S.W. (2d) 124; State ex rel. v. Trimble, 260 S.W. 1002; Herrell v. Frisco, 322 Mo. 561, 18 S.W. (2d) 481; Gorman v. Franklin, 117 S.W. (2d) 293; Whitehead v. Ry. Co., 83 Kan. 223; Myers v. Kennedy, 306 Mo. 286; Bloecher v. Duerbeck, 338 Mo. 535, 92 S.W. (2d) 688; Vitale v. Duerbeck, 338 Mo. 556, 92 S.W. (2d) 694; Dodge v. Kirkwood, 260 S.W. 1012; Mo. Pac. v. Moffatt, 56 Kan. 672; A., T. & S.F. Ry. Co., v. Wilkie, 77 Kan. 791; Hough v. Ry. Co., 133 Kan. 759; Toeneboehm v. Frisco, 317 Mo. 1117, 298 S.W. 795; Scott v. Mo. Pac., 333 Mo. 374, 62 S.W. (2d) 838; Heizhold v. United Rys., 308 Mo. 142; O'Donnell v. Baltimore & Ohio, 324 Mo. 1097, 26 S.W. (2d) 929; Savage v. Rock Island, 328 Mo. 44, 40 S.W. (2d) 632; Smith v. Greer, 216 Mo. App. 155, 257 S.W. 831, cert. quashed State ex rel. Greer v. Cox, 274 S.W. 373; Moses v. Mo. Pacific, 138 Kan. 347; Weller v. Ry. Co., 164 Mo. 180. (3) Assuming that the jury could and did find plaintiff guilty of contributory negligence, plaintiff was entitled to recover under the Kansas last chance doctrine. Bollinger v. Frisco, 334 Mo. 720, 67 S.W. (2d) 990; Jamison v. Railroad, 122 Kan. 308, 252 Pac. 473; Dyerson v. Railroad, 74 Kan. 536, 87 Pac. 683, 7 L.R.A. (N.S.) 132, 11 Ann. Cas. 207; Muir v. Railroad, 116 Kan. 551, 227 Pac. 537; Atherton v. Ry. Co., 107 Kan. 6, 190 Pac. 431; Dutton v. Terminal Ry., 316 Mo. 987; Smithers v. Barker, 341 Mo. 1017, 111 S.W. (2d) 47; Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50. (4) Plaintiff's Instruction 1 correctly submitted the case under the last clear chance doctrine and was not erroneous in any of the respects claimed by appellant. Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 63; Hoelzel v. Rock Island, 337 Mo. 61, 85 S.W. (2d) 130; Mayfield v. K.C. Southern, 337 Mo. 79, 85 S.W. (2d) 123; Bollinger v. Frisco, 334 Mo. 720, 67 S.W. (2d) 985.

COOLEY, C.

Action for damages for personal injuries. Verdict for plaintiff for $15,000, reduced by remittitur required by the court to $9,000, and judgment entered for latter amount. Defendant appeals. The case was submitted on primary negligence and negligence under the Kansas "last clear chance" doctrine, the accident having occurred in Kansas and being governed by the substantive law of that State. Questions of the sufficiency of the evidence to authorize submission and as to certain instructions are involved in this appeal. No question as to excessiveness of the judgment is raised. [1] The insistence that plaintiff's demurrer to the evidence should have been sustained will require a somewhat detailed statement of the facts. We shall try to state them, having in mind the established rule that in passing on a demurrer to the evidence the plaintiff's evidence is to be taken as true and countervailing evidence is to be disregarded. The plaintiff's evidence tends to show the following:

The accident occurred on Southwest Boulevard, Rosedale, Kansas, at about 9 P.M., September 26th, 1936. Plaintiff was operating a streetcar, as motorman, going east on Southwest Boulevard, an east and west street. Defendant, through its employees and agents, was operating an engine, with five cars behind it, on the tracks of the railroad, referred to in the record as the Frisco. [No question is raised as to the right of defendant to operate on the "Frisco" tracks.] The tracks, at that intersection, run generally from northeast to southwest, crossing Southwest Boulevard at an angle. For convenience and brevity we shall refer to the course of the railroad tracks as north and south, but keeping in mind that, for certain distances to be mentioned, the course is in fact diagonal across the street.

The engine that struck plaintiff's streetcar was going south on the west (southbound) of the two Frisco tracks that crossed Southwest Boulevard at that intersection. Plaintiff, as stated, was going east, and was on the south, or eastbound, track of the double track streetcar line. He stopped about twelve or fourteen feet from the west railroad track. A Kansas statute required him, in such circumstances, to stop not less than ten nor more than twenty feet from the crossing. He stopped within that required distance. [The statute...