Fitzgerald v. Thompson

• Decision Date: 06 November 1944
• Citation: 184 S.W.2d 198,238 Mo.App. 546
• Parties: Lela Bell Fitzgerald, Respondent, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Kansas Court of Appeals

184 S.W.2d 198

238 Mo.App. 546

Lela Bell Fitzgerald, Respondent, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

November 6, 1944

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman, Judge.

Affirmed.

Thomas J. Cole, Lyman J. Bishop, Gardner Smith, D. C. Chastain and Patterson, Chastain & Smith for appellant.

(1) Plaintiff did not make a submissible case under the Kansas Last Clear Chance Doctrine, and the defendant's demurrer to the evidence should have been sustained because: (a) Under the Kansas rule the plaintiff was required to show that her own negligence had ceased for a sufficient length of time to have permitted the defendant thereafter to have averted the accident by stopping. This the evidence fails to show, and it was error to overrule defendant's demurrer. Jamison v. A., T. & S. F. Ry. Co., 122 Kan. 305; Goodman v K. C., M. & S. R. R. Co., 137 Kan. 508; Buchhein v A., T. & S. F. Ry. Co., 147 Kan. 192; Bazzell v. A T. & S. F. Ry. Co., 133 Kan. 483; Shepard v. Thompson, 153 Kan. 68; Culp v. New, 154 Kan. 47; Clark v. A., T. & S. F. R. Co., 127 Kan. 1; Zimmerman v. K. C. Pub. Ser. Co., 130 Kan. 338; Caylor v. St. L. & S. F. R. Co., 332 Mo. 851, 59 S.W.2d 661. (b) There was no competent proof that the train could have been stopped after the plaintiff's car stopped upon the railroad tracks. Testimony of W. R. Sugg; Testimony of Tom Love. (c) The plaintiff's testimony as to the distance of the train cannot prevail as against the showing of the measured distance, and her admission that the flasher light was working when she was a block north of the crossing. Dimond v. Terminal R. R. Assn. of St. Louis, 346 Mo. 333, 141 S.W.2d 789; Luettecke v. The City of St. Louis, 346 Mo. 168, 140 S.W.2d 45; Lane v. Mo. Pacific R. R. Co., 132 Mo. 26; Borrson v. M., K. & T. R. Co., 172 S.W.2d 835, 849; Weeks v. A., T. & S. F. R. Co., 232 Mo.App. 429, 109 S.W.2d 374. (d) Self contradictions in the testimony of the plaintiff and of the witness Nelson as to distances and location of the train and of the automobile render their testimony without probative value. Stevens v. Thompson (Mo. App.), 175 S.W.2d 166; Rainwater v. Wallace (Mo.), 174 S.W.2d 835; Goslin v. Kurn (Mo.), 173 S.W.2d 79. (2) It was error for the court to fail to reprimand the plaintiff's attorney for his argument that the defendant had failed to bring the fireman to the trial. This was prejudicial error notwithstanding the court sustained the defendant's objection. Atkinson v. United Rys. Co., 286 Mo. 634, 228 S.W. 483; Cherveck v. St. L. Pub. Ser. Co. (Mo. App.), 173 S.W.2d 599; Chavaris v. Nat. L. & A. Ins. Co. of Tenn. (Mo. App.), 110 S.W.2d 790; Williams v. Taxicab Co. (Mo. App.), 241 S.W. 970; Jackman v. St. L. & H. R. Co. (Mo. App.), 206 S.W. 244. (3) The court's action in refusing to declare a mistrial because of the conduct of the jury and plaintiff's attorney in shaking hands after the case was submitted to the jury was error. Middleton v. K. C. Pub. Ser. Co., 348 Mo. 107, 152 S.W. 154; Ullom v. Griffith (Mo. App.), 263 S.W. 876; Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695. (4) The court erred in admitting the testimony of L. A. Goodman as to the distance in which the train could have been stopped because: (a) The witness did not know how many of the cars were loaded and how many were empties, and the hypothetical question did not embrace this fact. Burge v. Wabash Ry. Co., 244 Mo. 76, 96-102; Mammerberg v. K. C. Rys. Co., 62 Mo.App. 563; Marshall v. K. C. Rys. Co. (Mo. App.), 205 S.W. 971; Boring v. Met. St. Ry. Co., 194 Mo. 541, 92 S.W. 655; Senn v. Southern Ry. Co., 108 Mo. 142. (b) The witness was not qualified by reason of lack of knowledge of the train in question to testify. Grotjan v. Thompson (Mo. App.), 140 S.W.2d 706; Petty v. St. L. & M. R. R. Co., 179 Mo. 666; McGuire v. Springfield Traction Co. (Mo. App.), 30 S.W.2d 794; Culbertson v. Met. St. Ry. Co., 140 Mo. 35, 59; Quinley v. Springfield Traction Co., 180 Mo.App. 287, 305. (c) The proof showed, and it is a fact of general knowledge, that a loaded train has a greater momentum than an empty train, and that it cannot be stopped in as short a distance. Valley Springs Ranch Co. v. Plaggman, 228 Mo. 1; Spoeneman v. Uhri (Mo.), 60 S.W.2d 9; Bowen v. A., T. & S. F. Ry. Co. (Mo. App.), 256 S.W. 152; Thomasson v. Henwood, 235 Mo.App. 1211, 146 S.W.2d 88; Hutchison v. Thompson (Mo. App.), 167 S.W.2d 96. (d) To have any probative value the opinion of an expert must be supported by reasons, and none of the facts supporting the opinion can be left to conjecture or speculation. Hall v. Mercantile Trust Co., 332 Mo. 802, 59 S.W.2d 664; Kimme v. Terminal R. R. Assn., 334 Mo. 596, 66 S.W.2d 561; Raftery v. K. C. Gas Co. (Mo. App.), 169 S.W.2d 105. (e) The hypothetical question on which Goodman's answer is based is indefinite in that it did not clearly include the reaction time of the engineman and time for the brakes to take effect. This is an essential element. Thomasson v. Henwood, 235 Mo.App. 1211, 146 S.W.2d 88; Stark v. Burger, 344 Mo. 170, 125 S.W.2d 870; Kraues v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74. (5) The court erred in giving plaintiff's Instruction 1 because: (a) There was no sufficient evidence to justify the submission of the case to the jury for negligence under the Kansas Last Clear Chance Doctrine. Authorities, Point (1), supra. (b) The instruction authorized a finding of negligence on the part of the engineer without proof that he could see, and the court will take judicial notice that the boiler obstructed his view to the left. March v. Pitcairn (Mo. App.), 125 S.W.2d 972. (c) It was error to submit the case to the jury on the theory of this instruction because it is contrary to the physical facts and rests upon speculation and conjecture. State ex rel. K. C. S. Ry. Co. v. Shain, 341 Mo. 1195, 105 S.W.2d 915. (d) Said instruction assumes that the automobile after it came upon the track was out of control of the plaintiff and allowed a recovery if the collision was bound to occur and does not require a finding that the plaintiff could not get out of the automobile; it does not define what is meant by a position of inescapable peril and did not require a finding that plaintiff was not able to leave the automobile, and conflicts with defendant's Instruction "K" which required a finding for the defendant if the plaintiff made no effort to abandon her car.

Trusty, Pugh & Trusty and Fred F. Wesner for respondent.

(1) The court did not err in giving plaintiff's Instruction 1. State ex rel. Highway Comm. of Mo. v. Williams (Mo. App.), 51 S.W.2d 538, 541; Hollister v. A. S. Aloe Co. (Mo.), 156 S.W.2d 606, 610; Evans v. Atchison, T. & S. F. Railway Co. (Mo.), 131 S.W.2d 604, 611, 616; Consolidated, etc., v. West Mo. Power Co. (Mo.), 46 S.W.2d 174, 181; Quinn v. A. T. & S. F. Railway Co. (Mo. App.), 193 S.W. 933, 934; Phillips v. E. St. L. Railway Co. (Mo.), 226 S.W. 863; Johnson v. Dawidoff (Mo.), 177 S.W.2d 467, 471; Taylor v. Cleveland, C. C. & St. L. Railway Co., 333 Mo. 650, 63 S.W.2d 69; Zimmerman v. Salter (Mo. App.), 141 S.W.2d 137, 142; Crews v. K. C. P. S. Co., 341 Mo. 1090, 111 S.W.2d 54; Larey v. M.-K.-T. Railway Co. (Mo.), 64 S.W.2d 681, 684; Tocco v. C. D. Kenny Co. (Mo. App.), 269 S.W. 928, 931-2; Bowman v. Moore (Mo. App.), 167 S.W.2d 675, 681; Mitchell v. Brown (Mo. App.), 190 S.W. 354; Berkson v. K. C. C. Railway Co. (Mo.), 45 S.W. 1119, 1121; Baker v. Wagner Elec. Mfg. Co. (Mo.), 270 S.W. 302.

OPINION

Bland, P. J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 3500, and defendant has appealed.

The facts show that plaintiff was injured on July 1, 1940, when the automobile, in which she was riding, was struck by one of defendant's eastbound trains, at First and Main Streets, in Ottawa, Kansas. Plaintiff, with the object of possibly purchasing the automobile, which she was driving, had procured it from the dealer and had driven it about six blocks prior to the collision. She had owned an automobile before and was an experienced driver. She was well acquainted with the streets and street crossing of the city. The collision occurred about noon. The day was clear and the streets were dry. Defendant's single track railroad runs upon First Street, an east and west street in Ottawa. Plaintiff was driving south on Main Street, a north and south street in said city. Main Street is 100 feet wide between the property lines. First Street is eighty feet in width. The track runs parallel with, and near the center of, First Street. It is 37.3 feet from the north rail to a flasher light warning signal at the west side of Main Street located on the north property line of First Street. First Street is straight and approximately level for 2000 feet west of Main Street. There is a rise of ten inches from the property line of First Street to the railroad track.

The first street west of Main Street is Walnut Street where the Santa Fe Railroad crosses First Street. It is 350.2 feet from Main Street to the Santa Fe crossing. According to defendant's evidence the flasher light is set in operation when the engine of a train reaches an electric switch 574.5 feet west of the west line of Main Street.

Plaintiff testified that, as she neared the railroad crossing, she noticed the flasher lights were working; that she knew a train was coming, but did not know from which direction; that when she reached First Street she did not look for the approaching train but proceeded on toward the tracks at a rate of speed of about fifteen miles per hour; that when she reached a point about fifteen feet from the tracks she stopped her car and killed her engine;...