Feltz v. Terminal R. R. Ass'n of St. Louis

• Decision Date: 30 March 1935
• Parties: John Feltz v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

81 S.W.2d 616

336 Mo. 790

John Feltz v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

Supreme Court of Missouri

March 30, 1935

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed.

T. M Pierce, J. L. Howell and Walter N. Davis for appellant.

(1) Plaintiff's Instruction 1, which permitted a verdict, was predicated upon a finding that neither the bell on the engine was rung nor the whistle thereon sounded at least eighty rods from Edgar Avenue. The abstract contains no evidence that defendant's employees failed to ring the bell or sound the whistle eighty rods south of Edgar Avenue, but even so as the train became stationary three or four feet south of Edgar Avenue for ten or fifteen minutes prior to the accident, and plaintiff saw it standing there, any failure to ring the bell or sound the whistle eighty rods south of Edgar Avenue was not the proximate cause of the accident. The giving of such instruction constituted error. (2) It constituted error for the court to permit plaintiff to testify that Matt Webber (who was in the automobile with plaintiff at the time of accident) was mashed under the wheels of the gondola car, as such testimony was introduced only for the purpose of inflaming and inciting the jury. State v. Creed, 299 Mo. 307, 252 S.W. 678; Sutherland v. State, 139 So. 110. (3) The court erred in permitting doctors to testify that plaintiff's condition could have been caused by being thrown from the truck, for such testimony conveys to the jury no helpful information or aids it in its labors and allows the jury to speculate and guess as to whether the accident did cause the condition found. Kimmie v. Terminal Railroad, 66 S.W.2d 561; Adelsberger v. Sheehy, 59 S.W.2d 646; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Cole v. Railroad, 61 S.W.2d 344. (4) The verdict is excessive. Dominick v. Coal & Mining Co., 255 Mo. 463; Richardson v. Rys. Co., 288 Mo. 258, 231 S.W. 938; Peters v. Rys. Co., 204 Mo.App. 197, 224 S.W. 25; Hulse v. Railroad, 214 S.W. 150; Parks v. United Rys. Co., 235 S.W. 1067.

Jesse T. Friday for respondent.

(1) Plaintiff's Instruction 1 correctly submitted the case to the jury, under the undisputed evidence that there was no bell rung nor whistle sounded whatsoever while the train approached the Edgar Avenue crossing. Herring v. Railroad Co., 80 Mo.App. 562; Spiller v. Ry. Co., 87 S.W. 43. Appellants counsel, in his argument to the jury, conceded liability on defendant's part and therefore is now precluded from asserting alleged error in instructions submitting questions of negligence and liability. Hampe v. Versen, 32 S.W.2d 793; Sonken-Galamba Corp. v. Railroad Co., 40 S.W.2d 524; Bartels v. Owens Paper Box Co., 49 S.W.2d 239. (2) It was not error for the court to permit testimony of plaintiff as to what happened to Matt Weber when the train struck the truck, for the alleged reason that it tended to influence the jury. It was perfectly proper to ask such question for the reason that it attempted to elicit information as to the force of the collision and it was a part of the res gestae. Ridenhour v. Okla. Contr. Co., 45 S.W.2d 108; Crockett v. Kansas City Rys. Co., 243 S.W. 902. (3) It was not error for the court to admit testimony where no reason is given for the objection thereto. Wilkerson v. Railroad Co., 69 S.W.2d 299; Waeckerley v. Colonial Baking Co., 67 S.W.2d 779; Smith v. Sickinger, 221 S.W. 780; Shoemaker v. Coal Co., 255 S.W. 352; Leimkuehler v. Wessendorf, 18 S.W.2d 445. Where no objection is made to answer and no motion made to strike out the answer there is nothing for the court to review on appeal. Wilkerson v. Railroad Co., 69 S.W.2d 299; Goyette v. Ry. Co., 37 S.W.2d 552; Wolfson v. Cohen, 55 S.W.2d 677; Lochmann v. Brown, 20 S.W.2d 561; Am. Mfg. Concern v. Manufacturer's Printing, 6 S.W.2d 984. (4) It was proper for the court to permit Drs. Custer and Klinefelter to testify in answer to hypothetical questions that in their opinions the conditions asked about could have been caused by being thrown from the truck at time of accident. Kimmie v. Term. Railroad Assn., 66 S.W.2d 561; Stewart v. Am. Ry. Exp. Co., 18 S.W.2d 520; Langeneckert v. St. L. Sulphur & Chem. Co., 65 S.W.2d 648; Morton v. Ry. Co., 20 S.W.2d 34; Simmer v. May Dept. Stores, 282 S.W. 117; Schulz v. Ry. Co., 4 S.W.2d 762. (5) The verdict is not excessive. Gately v. Ry. Co., 56 S.W.2d 54; Wack v. Schoenberg Mfg. Co., 53 S.W.2d 28; Ruggeri v. Mitchell Clay Mfg. Co., 15 S.W.2d 775; Lewis v. St. L. Ind. Pack. Co., 3 S.W.2d 244; Burton v. Brennan Gro. Co., 13 S.W.2d 567; Kleinlein v. Foskin, 13 S.W.2d 648; Schupback v. Meshevsky, 300 S.W. 465.

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

OPINION

COOLEY

Action for damages for personal injuries. Verdict and judgment for plaintiff for $ 12,000, from which defendant appealed.

At and prior to the time of his injury plaintiff was employed by Bramstedt & Son, coal and material dealers, at Overland in St. Louis County, as a truck driver, his duties including the loading and unloading of the materials he hauled. He was injured by being thrown from his truck when it was struck at a highway crossing by a train on defendant's railroad. The railroad at that point runs approximately north and south and crosses at grade a public highway called Edgar Avenue which runs approximately east and west. Bramstedt & Son's coal yard is adjacent to and north of the highway and adjacent to and west of the railroad. On the day of the accident plaintiff loaded his truck at the coal yard and drove it onto the scale platform to be weighed. While loading or while on the scales he saw the train south of the crossing backing northward toward the crossing and saw it stop with the northmost car, a steel gondola car, some four feet south of the south side of Edgar Avenue. Having weighed his loaded truck plaintiff drove into Edgar Avenue and turned east. He stopped with the front end of his truck six or seven feet west of the railroad track and looked southward along the train and track. He could not see the engine, which was at the south end of the train, because of a curve in the track, nor was any member of the train crew in sight. He then proceeded eastward. When the front wheels of his truck had about gotten over the east rail of the track the train, without signal or warning of any kind, moved northward. The gondola car struck plaintiff's truck on its right side just back of the cab and pushed it northward twenty or twenty-five feet, when it turned over on its side. Plaintiff was thrown out and received the injuries for which he sues. This appeal presents questions concerning an instruction given for the plaintiff, the admission of certain evidence and the alleged excessiveness of the verdict. Further facts bearing upon these questions respectively will be given in connection with the discussion thereof.

I. Plaintiff's petition alleged several specifications of primary negligence, viz., failure to give the statutory crossing signal by sounding the bell or whistle of the locomotive at least eighty rods from the crossing and thereafter until the crossing was passed, as required by Section 4756, Revised Statutes 1929 (Mo. Stat. Ann., p. 2133); negligently backing the train across the crossing without any signal or warning of intention so to do when defendant's servants knew or should have known that plaintiff was about to cross the track and might be injured by the unexpected and unheralded movement; and negligent failure to keep watch or lookout for persons on the highway approaching the crossing when by so doing plaintiff's peril could and would have been discovered and the collision averted. The petition also contained a charge of negligence under the humanitarian doctrine which, however, was not submitted to the jury. Each specification of primary negligence was submitted by separate instructions, each of which directed a verdict for plaintiff upon a finding of the facts therein hypothesized. Complaint is made only of Instruction No. 1, submitting failure to give the statutory crossing signals, which reads:

"The Court instructs the jury, that if you believe and find from the evidence, that on the 23rd day of September, 1930, Edgar Avenue, referred to in the evidence was a public highway in the County of St. Louis, Missouri; and that the railroad track of the defendant crossed said Edgar Avenue at the place mentioned in the evidence, approximately in a northerly and southerly direction; and that the defendant's agents and servants were in charge of and operating the switch engine and train of cars, referred to in the evidence; and that defendant's said agents and servants caused said train of cars to be stopped on defendant's said track so that the last or northern-most car thereof was stopped and standing still several feet south of said Edgar Avenue, as described in the evidence; and while said train of cars was so stopped and standing still, if you so find, that the plaintiff operated the motor truck, referred to in the evidence, along said Edgar Avenue and upon said railroad track for the purpose of crossing the same;

"And if you further believe and find from the evidence, while plaintiff was operating said motor truck upon and across said track and along said Edgar Avenue, if you so find, that defendant's said agents and servants did then and there cause said train of cars to be moved backward in a northerly direction toward, upon and across said Edgar Avenue;

"And if you further believe and find from the evidence, before and at the time of causing said train of cars to be moved backward, as aforesaid, if you do so find, that defendant's said agents and servants neither rung the bell upon said engine nor...