Fitzpatrick v. Kansas City Southern Ry. Co.

• Decision Date: 04 January 1941
• Docket Number: 36640
• Citation: 146 S.W.2d 560,347 Mo. 57
• Parties: Katie L. Fitzpatrick, Administratrix of the Estate of Charles Fitzpatrick, v. The Kansas City Southern Railway Company, Appellant
• Court: Missouri Supreme Court

146 S.W.2d 560

347 Mo. 57

Katie L. Fitzpatrick, Administratrix of the Estate of Charles Fitzpatrick, v. The Kansas City Southern Railway Company, Appellant

No. 36640

Supreme Court of Missouri

January 4, 1941

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed.

Cyrus Crane, Winston H. Woodson and James F. Walsh for appellant.

(1) The court erred in refusing at the close of all of the evidence to instruct the jury peremptorily to find for defendant because: (a) No negligence of defendant was proved. (b) Fitzpatrick was guilty of contributory negligence. (c) Assuming (arguendo) defendant's negligence, it was not the proximate cause of the collision. Monroe v C. & A. Ry. Co., 297 Mo. 654, 249 S.W. 644; State ex rel. Kansas City So. Ry. Co. v. Shain, 340 Mo. 1206, 105 S.W.2d 915; Grimes v. St. L.-S. F. Ry. Co., 341 Mo. 136, 106 S.W.2d 462; Solomon v. Duncan, 194 Mo.App. 523, 185 S.W. 1141; Lauson v. Town of Fond du Lac, 123 N.W. 629; Goodwin v. Eugas, 290 Mo. 684, 236 S.W. 50; Patton v. Jewel Tea Co., 15 S.W.2d 360; Sheffer v. Schmidt, 324 Mo. 1054, 26 S.W.2d 592; St. L.-S. F. Ry. Co. v. Guthrie, 114 So. 215; Dunlap v. Pacific Elect. Ry. Co., 55 P.2d 894; Philadelphia & R. Ry. Co. v. Dillon, 114 A. 62; Rowe v. Northern Pac. Ry. Co., 17 P.2d 352; Coleman v. C., B. & Q. Ry. Co., 5 N.E.2d 105; Pennsylvania Railroad Co. v. Huss, 180 N.E. 922; Killion v. Chicago, M., St. P. & P. Ry. Co., 25 N.E.2d 651; Dolan v. Bremner, 263 N.W. 800; Sheets v. Baldwin, 73 P.2d 38; Louisville & N. Railroad Co. v. Mischel's Admx., 114 S.W.2d 119; Bell Cab Co. v. New York, N. H. & H. Ry. Co., 199 N.E. 729; Simpson v. Pere Marquette Ry. Co., 268 N.W. 769; Summerford v. Ill. Cent. Ry. Co., 196 So. 264; Gage v. Boston & M. Ry., 90 A. 855; Morris v. Atlantic City Ry. Co., 126 A. 295; Pascal v. Pascal, 4 N.Y.S. (2d) 782; Rose v. Atlantic Coastline Ry. Co., 187 S.E. 857; Bowers v. Great Northern Ry. Co., 259 N.W. 99; Capelle v. Baltimore & O. Ry. Co., 24 N.E.2d 824; Highton v. Pa. Ry. Co., 1 A.2d 568; Texas Mexican Ry. Co. v. Hoy, 24 S.W.2d 20; Yardley v. Rutland Ry. Co., 153 A. 195; Reines v. Chicago, M., St. P. & P. Ry. Co., 80 P.2d 408; Fannin v. Minneapolis, St. P. & S. S. M. Ry. Co., 200 N.W. 651; Yano v. Stott Briquet Co., 199 N.W. 48; Frame v. Canadian Natl. Rys., 1 Western Weekly Reports, 62. (2) The court erred in permitting the ten thousand dollar verdict to stand since it was grossly excessive, unwarranted and unreasonable. Gaston v. St. Louis Pub. Serv. Co., 223 Mo.App. 770, 20 S.W.2d 559. (3) The court erred in giving to the jury, over defendant's objections and exceptions, plaintiff's Instruction 1, in that same is erroneous and the giving thereof constitutes reversible error in that in enumerating the conditions under which the jury could find that defendant was negligent essential findings were omitted, namely: (a) whether between the time the railroad car came to a stop and the time of the collision a warning could have been given by the defendant in time to have avoided the collision; and (b) whether Fitzpatrick was driving his automobile at such speed as a man in the exercise of the highest degree of care would have driven under the same or similar circumstances. Luft v. Strobel, 322 Mo. 955, 19 S.W.2d 721. (4) The court erred in overruling defendant's motion to declare a mistrial and discharge the jury on account of the prejudicial closing argument of plaintiff's counsel. Ryan v. Sheffield Car & Equip. Co., 24 S.W.2d 170; Brown v. Hannibal & St. J. Ry. Co., 66 Mo. 599; Jackman v. Ry. Co., 206 S.W. 246.

Donald H. Latshaw and Johnson, Garnett & Quinn for respondent.

(1) Defendant was guilty of negligence because the conditions at the crossing were such that, in the exercise of ordinary care, it was charged with the extra statutory duty of giving to the deceased adequate warning of the fact that the crossing was obstructed by its train. Connole v. Ill. Cent. Ry. Co., 21 S.W.2d 907; Elliott v. Mo. Pac. Ry. Co., 227 Mo.App. 225, 52 S.W.2d 448; Homan v. Mo. Pac. Ry. Co., 334 Mo. 61, 64 S.W.2d 617; Toeneboehm v. St. L.-S. F. Ry. Co., 317 Mo. 1096, 298 S.W. 795; Roshel v. Litchfield & Madison Ry. Co., 112 S.W.2d 876. (a) Deceased was not guilty of contributory negligence as a matter of law; it was for the jury to say, under all of the facts and circumstances, whether or not he was negligent. Cento v. Security Bldg. Co., 99 S.W.2d 6; Kendrick v. Kansas City, 237 S.W. 1011; Mundy v. St. L. & S. F. Ry. Co., 45 S.W.2d 941; Sing v. St. L. & S. F. Ry. Co., 30 S.W.2d 37; Scott v. Mo. Pac. Ry. Co., 333 Mo. 374, 62 S.W.2d 834; Simpson v. St. L. & S. F. Ry. Co., 334 Mo. 1126, 70 S.W.2d 904; Hutchinson v. St. L. & S. F. Ry. Co., 335 Mo. 82, 72 S.W.2d 87; State ex rel. K. C. So. Ry. Co. v. Shain, 340 Mo 1195, 105 S.W.2d 915; Poehler v. Lonsdale, 129 S.W.2d 59; Monroe v. C. & A. Ry. Co., 297 Mo. 633, 249 S.W. 644; Grimes v. Railroad, 341 Mo. 129, 106 S.W.2d 462; Soloman v. Duncan, 194 Mo.App. 517, 185 S.W. 1141; Roper v. Greenspon, 272 Mo. 228, 198 S.W. 1107; Powell v. Schofield, 15 S.W.2d 876; Sheffer v. Schmidt, 26 S.W.2d 597; Herrington v. Hoey, 139 S.W.2d 477; Plater v. Kansas City, 334 Mo. 842, 68 S.W.2d 800; Slater v. Mullins Const. Co., 17 S.W.2d 658; Wilmore v. Holmes, 7 S.W.2d 410; Roth v. Hoffman, 269 S.W. 679; Franklin v. Kansas City, 213 Mo.App. 154, 260 S.W. 502; Bedsaul v. Seeback, 341 Mo. 50, 106 S.W.2d 431; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Love v. Kansas City, 118 S.W.2d 69; McGrory v. Thurnau, 84 S.W.2d 147; Metz v. Kansas City, 229 Mo.App. 402, 81 S.W.2d 462; Fitzpatrick v. Service Const. Co., 227 Mo.App. 1074, 56 S.W.2d 822; Junk v. Tucker Transp. Co., 52 S.W.2d 570; Williams v. Mexico, 224 Mo.App. 1224, 34 S.W.2d 992; Snyder v. Murray, 223 Mo.App. 671, 17 S.W.2d 639; Hofstedt v. So. Pac., 1 P.2d 470; Mallett v. So. Pac. Ry. Co., 68 P.2d 281; Los Angeles & S. L. Railroad Co. v. Lytle, 47 P.2d 934, 52 P.2d 464; Shelley v. Pollard, 189 S.E. 570; Mann v. Central of Georgia, 160 S.E. 131; Short v. Penn. Ry. Co., 187 N.E. 737; Beaumont, S. L. & W. Railroad Co. v. Richmond, 78 S.W.2d 232; Patterson v. C., R. I. & P. Ry. Co., 175 So. 164; Spiers v. A. Coast L. Ry. Co., 178 S.E. 136; Richards v. Maine Cent. Ry. Co., 168 A. 811. (2) Plaintiff's Instruction 4 is entirely proper. Plaintiff's cause of action is not one for a penalty under Section 3262, Revised Statutes 1929, but is one for compensatory damages under Sections 3263 and 3264. Crumpley v. Hannibal & St. J. Ry. Co., 98 Mo. 34; King v. Mo. Pac. Ry. Co., 98 Mo. 235; Rapp v. St. Joseph & Iowa Ry. Co., 106 Mo. 423; Culbertson v. Met. St. Ry. Co., 140 Mo. 35; Honea v. St. Louis, I. M. & S. Ry. Co., 245 Mo. 621, 151 S.W. 119; Casey v. St. Louis Transit Co., 205 Mo. 721, 91 S.W. 419; State ex rel. Dunham v. Ellison, 278 Mo. 649, 213 S.W. 459; Koehler v. Wells, 323 Mo. 892, 20 S.W.2d 31; Boyd v. Mo. Pac. Ry. Co., 249 Mo. 110, 155 S.W. 13; Cummins v. Kansas City Pub. Serv. Co., 234 Mo. 672, 66 S.W.2d 924; Gray v. Wab. Ry. Co., 157 Mo.App. 92, 137 S.W. 324; Speyer v. United Rys. Co., 85 S.W. 737; Stookey v. St. L.-S. F. Ry. Co., 209 Mo.App. 33, 326 S.W. 426; Griggs v. Dunham, 204 S.W. 573; Treadway v. United Rys. Co., 300 Mo. 156, 253 S.W. 1037; Grier v. K. C. & St. Joseph Ry. Co., 286 Mo. 523, 228 S.W. 454; Steger v. Meehan, 63 S.W.2d 112.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action under the compensatory section of the death statute (Section 3263, R. S. 1929, 5 Mo. Stat. Ann. 3371) for the death of Charles V. Fitzpatrick. Fitzpatrick was killed about 3:45 A. M., March 18, 1937, when the automobile, which he was driving, crashed into the side of a freight car in one of defendant's trains at a crossing in Kansas City, Missouri.

Plaintiff charged defendant with negligence in failing to give any warning that the crossing was obstructed. Defendant charged deceased with contributory negligence in operating his automobile at an excessive rate of speed under the circumstances and in failing to keep a lookout for railroad cars on the crossing. The jury returned a verdict for plaintiff for $ 10,000 and judgment was duly entered thereon. Defendant has taken the necessary steps to present the cause on appeal.

Appellant contends that the trial court erred in refusing to give its instruction, in the nature of a demurrer to the evidence, as tendered at the close of the whole case. Appellant says, (1) that the evidence was insufficient to make a submissible case of negligence against it; (2) that deceased was guilty of contributory negligence as a matter of law preventing recovery; and (3) that, if defendant was guilty of negligence, such negligence was not the proximate cause of the collision and death. A detailed statement of the evidence is required. In this statement we shall refer to Fitzpatrick as the deceased, and to appellant as defendant.

The collision occurred at defendant's crossing at Fifteenth Street and Richmond Avenue and just west of the Fifteenth Street Bridge over Blue River. Fifteenth Street is a paved highway extending east and west. Farther east it is known as Van Horn Road. It has four traffic lanes and is heavily traveled at all hours of the day and night. Defendant's tracks extend north and south across Fifteenth Street. The main line is on the east. The switch track is on the west. At the time of the collision, one of defendant's freight trains was standing on the main line track with a large automobile car extending across Fifteenth Street. The car was "a rust color of some kind." "It was a big brown looking car, box car." Plaintiff's witnesses estimate its length at 40 feet, its height at 12 feet, and said that the floor of the car was three or four feet above the rails.

The highway bridge over Blue River is 227 feet in...