Fagg v. Missouri & N. A. R. Co.

• Citation: 170 S.W. 912,185 Mo. App. 79
• Decision Date: 05 November 1914
• Docket Number: No. 1131.,1131.
• Court: Court of Appeal of Missouri (US)
• Parties: FAGG v. MISSOURI & N. A. R. CO. et al.

170 S.W. 912

185 Mo. A. 79

FAGG v. MISSOURI & N. A. R. CO. et al.

No. 1131.

Springfield Court of Appeals. Missouri.

November 5, 1914.

Rehearing Denied November 27, 1914.

1. RAILROADS (§ 313) — CROSSING ACCIDENTS — RECOVERY.

Where the statutory warning signals were not given, one run down by a railroad train may recover for injuries suffered, if he was not guilty of contributory negligence.

2. EVIDENCE (§ 588) — WEIGHT AND SUFFICIENCY — PHYSICAL FACTS.

Testimony by plaintiff, who was run down at a railroad crossing, that he looked and listened, but did not see the approaching train, must be rejected as false, where the physical facts showed that a person in the position described by plaintiff could have seen the train for about a quarter of a mile before it reached the crossing.

3. RAILROADS (§ 351) — CROSSINGS — HUMANITARIAN DOCTRINE — INSTRUCTION.

Where plaintiff, who was run down at a crossing, relied upon the humanitarian doctrine, an instruction that the defendant railroad company had a right to expect a clear track at a public crossing, and, owing plaintiff no duty to look out for him, was liable only in case plaintiff was actually seen in a position of danger in time to have prevented the collision, is erroneous, because leaving out any reference to liability where, by the exercise of ordinary care, plaintiff could have been seen.

4. TRIAL (§ 330) — VERDICTS — EFFECT.

Where plaintiff charged, in three counts, three acts of negligence, and the jury found in his favor on the first, the failure of the jury to make findings upon the last two counts is no bar to a retrial on those issues, where no judgment was rendered.

5. APPEAL AND ERROR (§ 1177) — DETERMINATION — REMAND.

In an action for damages for injuries received upon being run down at a crossing, plaintiff in three counts charged three acts of negligence. The jury found for plaintiff on the first count, which charged failure to give the statutory signals, but made no findings on the others. The verdict for plaintiff on the first count was erroneous, being contrary to the physical facts. Held that, no judgment having been rendered as to the other two counts, the judgment for plaintiff would not be reversed without remand, but would be remanded; it appearing that the jury were misdirected as to the count charging negligence under the humanitarian doctrine.

Appeal from Circuit Court, Newton County; Carr McNatt, Judge.

Action by David Fagg against the Missouri & North Arkansas Railroad Company and its receivers. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

O. L. Cravens, of Neosho, for appellants. Hubbert & Hubbert, of Neosho, for respondent.

FARRINGTON, J.

Plaintiff recovered a judgment for injuries to his person and to his team and wagon and its contents as a result of a collision at one of defendants' railroad crossings in Newton county. He was struck by a north-bound combination baggage and passenger coach propelled by a gasoline electrical motor. Plaintiff in his petition charged in three counts three acts of negligence on the part of the defendants. The first is based on a failure to give the statutory warning signals. The second is based on the humanitarian doctrine. The third is based on a failure to provide a proper railroad crossing. The defendants' answer was a general denial, coupled with a plea of contributory negligence.

At the close of the evidence, defendants offered three instructions in the nature of demurrers to the evidence on each of the three counts, which were by the court refused. At plaintiff's request, the court gave instructions predicated on the negligence alleged in the three counts, and submitted the case to the jury. A verdict was returned for the plaintiff on the first count, which was the one based on the failure to give the warning signals. No express verdict whatever was returned on the second and third counts. The judgment, therefore, comes to us founded on the cause of action stated in the first count of the petition.

There is substantial evidence in this record that the statutory warning signals were not given. Therefore the verdict of the jury returned on the first count must be sustained, unless the plaintiff was guilty of contributory negligence as a matter of law. A review of the evidence will determine this question.

Plaintiff, a young man 27 years of age, whose eyesight and hearing were good, driving two horses hitched to a wagon covered with canvas similar to a mover's wagon at about 9 o'clock in the morning of a clear day, approached from the south a railroad crossing on a county road. The dirt road on which he traveled runs north and south. The railroad coming from the southeast crosses the dirt road at an angle of about 45 degrees and continues in a northwesterly direction. The dirt road crossed the railroad in a straight line, which made the righthand front wheel of plaintiff's wagon strike the first rail of the railroad at an angle of about 45 degrees, and before the left-hand front wheel of his wagon would strike the rail. The same thing would occur as to the back wheels of his wagon. The evidence is undisputed that the approach to the rails begins at a point about 78 feet from the track, and from that point rises about 5 feet to the center of the track. Plaintiff testifies that when he reached the point where the approach begins he stopped, raised up in his wagon (this would put his head about 7 feet above the surface of the ground), and looked in both directions for a train, and listened for a train, and that as he went forward from that point he at no time saw the car, although he looked in both directions several times as he went up this 78-foot approach to the crossing; nor did he hear or know that a train was aproaching until his horses were right at the crossing and when the train was right on him. It struck his wagon, he...