Fair v. Thompson, 20977.

• Decision Date: 10 May 1948
• Docket Number: No. 20977.,20977.
• Citation: 212 S.W.2d 923
• Parties: THOMAS W. FAIR, ADMINISTRATOR OF THE ESTATE OF JOHN H. FAIR, DECEASED, AND FRANK FAIR, DECEASED, ET AL., RESPONDENTS, v. GUY A. THOMPSON, TRUSTEE OF THE MISSOURI PACIFIC RAILROAD COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

212 S.W.2d 923

THOMAS W. FAIR, ADMINISTRATOR OF THE ESTATE OF JOHN H. FAIR, DECEASED, AND FRANK FAIR, DECEASED, ET AL., RESPONDENTS, v. GUY A. THOMPSON, TRUSTEE OF THE MISSOURI PACIFIC RAILROAD COMPANY, APPELLANT.

No. 20977.

Kansas City Court of Appeals, Missouri.

May 10, 1948.

Appeal from Circuit Court of Pettis County. — Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

Thomas J. Cole, Ragland, Otto, Potter & Embry, Leon P. Embry and Forrest P. Carson for appellant.

(1) The trial court erred in overruling appellant's motion to dismiss, because: The petition fails to comply with the Civil Code of Missouri in that the title of the action therein does not include the names of all of the purported plaintiffs. (2) Several claims have been improperly united in said petition. Sec. 61, Civil Code of Missouri. (3) Joinder of claims, where there are multiple plaintiffs, is authorized only when the relief sought arises out of the same transaction or occurrence, or series of transactions or occurrences. Secs. 16, 37, Civil Code of Missouri. (4) There is no action at common law for wrongful death. Such an action is purely a creature of the statute. Chamberlain v. Mo.-Ark. Coach Lines, (Mo.) 189 S.W. 2d 538. (5) The trial court erred in overruling appellant's said motion to dismiss, because here multiple plaintiffs are undertaking to assert rights to relief not arising out of the same occurrence or series of occurrences. Secs. 16, 37, Civil Code of Missouri; Chamberlain v. Mo.-Ark. Coach Lines, (Mo.) 189 S.W. 2d 538; Reeves v. Beardall, 316 U.S. 283, 62 S. Ct. 1085; Gerard v. Mercer, 62 Fed. Supp. 28. (6) The trial court erred in denying appellant's motion for a directed verdict as to each and both counts of the petition at the close of all of the evidence; and in refusing instruction No. D-4 directing a verdict for the appellant, because the evidence was not sufficient to make a humanitarian doctrine case on charges of negligent failure to sound an audible warning and to stop the train. Yuronis v. Wells, 322 Mo. 1039, 1045, 17 S.W. 2d 518; Evans v. Farmers Elevator Co., 347 Mo. 326, 336, 147 S.W. 2d 593. (7) Respondents did not make a submissible case under the humanitarian doctrine on a charge of failure to sound an audible warning. Obliviousness is a necessary element to make a humanitarian negligence case of failure to warn. Pentecost v. St. Louis Merchants' Bridge Terminal R.R. Co. et al., 334 Mo. 572, 577, 66 S.W. 2d 533. (8) Where obliviousness is depended upon, as it must be on a humanitarian charge of failure to warn, it is incumbent upon a plaintiff to prove the obliviousness. Perkins v. Terminal R. Ass'n of St. Louis, 340 Mo. 868, 102 S.W. 2d 915; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482. (9) To make a submissible case under the humanitarian doctrine on a charge of failure to stop, or on any other charge, every element of the doctrine must be proved. Gurwell v. Jefferson City Lines, 192 S.W. 2d 683; Dody v. Lonsdale, 158 S.W. 2d 203. (10) One of the necessary elements of the humanitarian doctrine is a present ability to act after a duty under the doctrine arises. Zickefoose v. Thompson, 347 Mo. 579, 148 S.W. 2d 784. (11) There was no evidence of imminent peril and knowledge or notice thereof prior to the time when, according to respondent's theory, the automobile stopped on the track with the train fourteen seconds away. Grotjan v. Thompson, 140 S.W. 2d 706, 710. (12) There is no evidence of obliviousness on the part of the occupants of the automobile. There is no evidence that they were in inextricable peril. Willig v. C., B. & Q. Ry. Co., (Mo.) 137 S.W. 2d 430, 435. (13) The "imminent peril" doctrine does not apply to persons imperiling themselves to save property. Gwaltney v. Kansas City Southern R. Co., 339 Mo. 249, 96 S.W. 2d 357; Johnson v. Terminal Ry. Ass'n, 320 Mo. 884, 8 S.W. 2d 891. (14) There being no showing of knowledge or notice — or of the existence — of obliviousness or of inextricable peril (each of which would have had to be proved to make a case), the trainmen would have been under no humanitarian duty until it should have become apparent that the deceased could not, or would not, escape. Clark v. A., T. & S.F. Ry. Co., 319 Mo. 865, 6 S.W. 2d 954; Poague v. Kurn et al., 346 Mo. 153, 140 S.W. 2d 13; Hall v. Baldwin et al., 90 S.W. 2d 146; Pope v. Wabash R. Co., 146 S.W. 790, 242 Mo. 232. (15) There is no showing that it could have been stopped — because there is no condition of imminent peril until the peril is so immediately impending that it allows no time for deliberation on the part of the person in peril between its appearance and the impending collision. Johnson et al. v. Hurck, 353 Mo. 1207, 187 S.W. 2d 200; State ex rel. v. Bland et al., 191 S.W. 2d 660; Frailey v. Kurn, 349 Mo. 434, 161 S.W. 2d 424; Baker v. Wood et al., 142 S.W. 2d 83; Hall v. Baldwin et al., (Mo. App.) 90 S.W. 2d 146; Frailey v. Kurn, 349 Mo. 434, 161 S.W. 2d 424; Baker v. Wood et al., 142 S.W. 2d 83; State ex rel. v. Shain et al., 349 Mo. 27, 159 S.W. 2d 582, 585; Knorp v. Thompson, 352 Mo. 44, 175 S.W. 2d 889; Zickefoose v. Thompson, 347 Mo. 579, 148 S.W. 2d 784. (16) The trial court erred in denying appellant's motion for a directed verdict as to the first count of the petition at the close of all of the evidence, and in refusing appellant's instruction No. D-5 directing a verdict for the defendant as to the first count because the evidence was not sufficient to make a humanitarian doctrine case on charges of negligent failure to sound an audible warning and to stop the train. The trial court erred in denying appellant's motion for a directed verdict as to the second count of the petition at the close of all of the evidence, and in refusing appellant's instruction D-6 directing a verdict for the defendant as to the second count of the petition, because the evidence was not sufficient to make a submissible humanitarian doctrine case on charges of negligent failure to sound an audible warning and to stop the train. The trial court erred in permitting respondents' witness Goodman, over appellant's objections, to testify to an opinion as to the distance within which the train could have been stopped, because the types of brakes on the various cars — other than engine and tender — were not known and because it is apparent that he was assuming the unproved proposition that they were "ordinary" coaches. Grotjan v. Thompson, 140 S.W. 2d 706. (17) The trial court erred in giving respondents' instruction No. 1 over appellant's objections because: Said instruction erroneously submitted the questions of failure to sound an audible warning and to stop the train, under the humanitarian doctrine, when there was not sufficient evidence to justify, or on which to base, such submission, and not sufficient evidence to make a submissible case. (18) The first paragraph of said instruction erroneously imposed a duty to keep a lookout without limiting its application to persons in imminent peril and, therefore, it erroneously injected the question of primary or antecedent negligence into a humanitarian submission. Chastain v. Winton et al., 347 Mo. 1211, 152 S.W. 2d 165; Mayfield v. K.C. Southern Ry. Co., 337 Mo. 79, 85 S.W. 2d 116. (19) By not limiting the application of the duty to keep a lookout to persons in imminent peril, the first paragraph of said instruction, erroneously mingled the question of antecedent negligence with the question of negligence after any zone of imminent peril came into existence. That is reversible error. Bebout v. Kurn, 348 Mo. 501, 154 S.W. 2d 120. (20) The first paragraph of said instruction imposed an unqualified duty "to use ordinary care to prevent injuring such persons" without limiting its application to persons in imminent peril, thus erroneously injecting questions of primary or antecedent negligence into a humanitarian submission. Mayfield v. K.C. Southern Ry. Co., supra; Bebout v. Kurn, supra. (21) The closing statement in said instruction "and this is the law even though you may believe and find that the deceased were careless and negligent in going upon the railroad track without discovering the approaching train" clearly and erroneously assumed that the deceased did go onto the track without discovering the approaching train, thereby assuming that the deceased were oblivious. Perkins v. Terminal R. Ass'n, 340 Mo. 868, 102 S.W. 2d 915; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482. (22) The absence of proof of obliviousness was fatal to the submissibility of respondents' case on a charge of failure to warn. Pentecost v. St. Louis Merchants' Terminal R.R. Co. et al., 334 Mo. 572, 66 S.W. 2d 533. (23) The closing statement in said instruction "and this is the law even though you may believe and find that the deceased were careless and negligent in going upon the railroad track without discovering the approaching train": erroneously authorized a finding for plaintiffs even if such negligence of the deceased was the sole cause of their deaths; erroneously conflicted with appellant's sole cause instruction No. D-9 and erroneously extended the zone of peril by assuming obliviousness at and from the time the deceased drove onto the track. The above quoted portion of said instruction did not exclude the idea of sole cause negligence, as did the instruction in Lankford v. Thompson, (Mo.) 189 S.W. 2d 217, but rather it falls within the condemnation of Grotjan v. Thompson, (Mo. App.) 140 S.W. 2d 706, and Smithers v. Barker, 341 Mo. 1017, 111 S.W. 2d 47. (24) Since said portion of said instruction assumes the unproved element of oblivious peril from the time the automobile drove onto the track, it improperly extended the zone of peril so as to fall within the condemnation of Smithers v. Barker, supra, even if that decision be given the limited construction given to it in Bowman v. Standard Oil Co., (Mo.) 169 S.W. 2d 384. (25) Said instruction, read as a whole, erroneously treats the...