Foster v. Kurn

• Decision Date: 04 May 1942
• Citation: 163 S.W.2d 133,236 Mo.App. 1149
• Parties: THOMAS FOSTER, RESPONDENT, v. JAMES M. KURN AND JOHN G. LONSDALE, TRUSTEES OF THE ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS
• Court: Kansas Court of Appeals

163 S.W.2d 133

236 Mo.App. 1149

THOMAS FOSTER, RESPONDENT, v. JAMES M. KURN AND JOHN G. LONSDALE, TRUSTEES OF THE ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS

Court of Appeals of Missouri, Kansas City

May 4, 1942

Appeal from Jackson Circuit Court.--Hon. Albert A. Ridge, Judge.

AFFIRMED.

Judgment affirmed.

Maurice G. Roberts, E. G. Nahler, Mitchel J. Henderson, Thos. E Deacy and Henderson, Deacy, Henderson & Swofford for appellants.

(1) The decision of this court in the former appeal is not binding upon the court in this appeal, and is not res adjudicata, or the law of the case, as to matters not passed upon or before the court in the former appeal, and as to matters concerning which the court may have been in error in the former appeal. Poe v. Illinois Central R. R. Co. (Mo.), 99 S.W.2d 82; Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650; Weir v. American Car & Foundry Co., 300 S.W.2d 1048. (2) Where plaintiff's evidence aided by defendants' evidence favorable to plaintiff fails to establish plaintiff's theory of the case a verdict for defendants should be directed. (3) Failure on the part of the plaintiff as he approached the crossing in question to look, and the failure to see what was plainly visible, had he looked constituted contributory negligence as a matter of law. State ex rel. v. Shain, 105 S.W.2d 195; Scott v Kurn, 126 S.W.2d 185. (4) The presence of the standing flatcar, and other cars on the crossing was a notice of danger, and plaintiff in attempting to go over the tracks in question failed to exercise proper care to look and listen for the purpose of discovering approaching trains. Scott v. Kurn, 126 S.W.2d 185; Fitzpatrick v. Kansas City So. Ry. Co., 146 S.W.2d 560; Frei v. St. Louis-San Francisco Ry. Co., 241 S.W. 671; Dickey v. Wabash Ry. Co., 251 S.W. 112; State ex rel. Hines v. Bland, 237 S.W. 1018; Wren v. Chicago, B. & Q. Ry. Co., 44 S.W.2d 241. (5) Plaintiff's Instruction 1 was erroneous. Anderson v. Kraft, 129 S.W.2d 85, 91; State ex rel. Central Coal & Coke Co., 270 Mo. 645; Gandy v. St. Louis-San Francisco Ry. Co., 329 Mo. 459, 44 S.W.2d 634; Gary v. Averill, 321 Mo. 840, 12 S.W.2d 747.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for respondent.

(1) The decision of this court on former appeal became the law of the case as to the issues of negligence and contributory negligence. Foster v. Kurn, 133 S.W.2d 1114; Gracey v. City of St. Louis, 221 Mo. 1, 119 S.W. 949, 950; Cordray v. City of Brookfield, 88 S.W.2d 161, 162; State of Kansas v. United States Fidelity & Guaranty Co., 328 Mo. 295, 40 S.W.2d 1050, 1052. (2) The trial court properly overruled defendants' demurrer to the evidence at the close of the case. Savage v. Chicago, R. I. & P. Ry. Co., 328 Mo. 44, 40 S.W.2d 628, 632; Mayfield v. K. C. S. Ry. Co., 337 Mo. 79, 85 S.W.2d 116, 124, 125; Homan v. Mo. P. R. Co., 335 Mo. 30, 70 S.W.2d 869, 879; Feltz v. Term. R. R. Assn. of St. Louis, 336 Mo. 790, 81 S.W.2d 616, 617; Dyer v. K. C. Southern Ry. Co., 223 Mo.App. 1001, 25 S.W.2d 508, 511; Pabst v. Armbruster, 91 S.W.2d 652, 657; Hinds v. Chicago, B. & Q. R. Co., 85 S.W.2d 165, 169; Tueteberg v. St. Louis Public Service Co., 41 S.W.2d 956, 957; State ex rel. City of St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97, 102; Frese v. Wells, 40 S.W.2d 652, 654; Anderson v. Asphalt Distributing Co., 55 S.W.2d 688, 693; Hoffman v. Peerless White Lime Co., 317 Mo. 86, 296 S.W. 764, 773; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, 50. (3) The issue of plaintiff's contributory negligence was properly submitted to the jury and their verdict concluded the matter. Toeneboehn v. St. Louis-San Francisco R. Co., 317 Mo. 1096, 298 S.W. 795, 802; Peterson v. Chicago & A. Ry. Co., 265 Mo. 462, 178 S.W. 182, 187; State ex rel. Strohfeld v. Cox, 325 Mo. 901, 30 S.W. 2d 462, 465; Cuccio v. Terminal R. Ass'n et al., 199 Mo.App. 365, 203 S.W. 493, 496; Young v. Mo.-Kas.-Tex. R. Co., 100 S.W.2d 929, 934; Dodson v. St. Louis-San Francisco Ry. Co., 223 Mo.App. 812, 10 S.W.2d 528, 533; Jackson v. Southwest Missouri R. Co., 189 S.W. 381, 384; McWhirt v. Chicago & A. R. Co., 187 S.W. 830, 835; Ruenzi v. Payne, 208 Mo.App. 113, 231 S.W. 294, 298; Dyer v. K. C. Southern Ry. Co., 223 Mo.App. 1001, 25 S.W.2d 508, 511; Wright v. St. Louis-San Francisco Ry. Co., 327 Mo. 557, 37 S.W.2d 591, 593; Dutton v. K. C. Term. Ry. Ass'n, 316 Mo. 979, 292 S.W. 718, 720; Poehler v. Lonsdale, 129 S.W.2d 59, 65; Smith v. Producers Cold Stg. Co., 128 S.W.2d 299, 303; Simpson v. St. Louis-San Francisco Ry. Co., 334 Mo. 1126, 70 S.W.2d 904, 910; Cook v. Mo. P. R. Co., 51 S.W.2d 171, 173; Mundy v. St. Louis-San Francisco Ry. Co., 45 S.W.2d 941, 942; Hutchison v. St. Louis-San Francisco Ry. Co., 335 Mo. 82, 72 S.W.2d 87, 92; Underwood v. St. Louis, I. M. & S. Ry. Co., 190 Mo.App. 407, 177 S.W. 724, 727; Wright v. St. Louis-San Francisco Ry. Co., 327 Mo. 557, 37 S.W.2d 591, 593. (4) The court committed no error in giving plaintiff's Instruction No. 1. Savage v. Chicago, R. I. & P. Ry. Co., 328 Mo. 44, 40 S.W.2d 628, 632; Bertke v. Hoffman, 330 Mo. 584, 50 S.W.2d 107, 109; Henderson v. St. Louis-San Francisco Ry. Co., 314 Mo. 414, 284 S.W. 788, 790; Mayfield v. Kansas City Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116, 124; Mayfield v. Kansas City Southern Ry. Co., 101 S.W.2d 769, 772; Todd v. St. Louis-San Francisco Ry. Co., 37 S.W.2d 557, 560; Scott v. Mo. P. R. Co., 333 Mo. 374, 62 S.W.2d 834, 838; Henderson v. St. Louis-San Francisco Ry. Co., 314 Mo. 414, 284 S.W. 788, 789; Griffith v. Delico Meat Products Co. (Mo.), 145 S.W.2d 431, 434; Westenhaver v. St. Louis-San Francisco Ry. Co., 340 Mo. 511, 102 S.W.2d 661, 664. (5) The judgment is not excessive. Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533, 541; Flynn v. Burgess, 259 S.W. 147; Gieseking v. Litchfield & Madison Ry. Co., 344 Mo. 672, 127 S.W.2d 700; 708; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903, 911; Carpenter v. Wabash Ry. Co., 335 Mo. 130, 71 S.W.2d 1071; Zeller v. Wolff-Wilson Drug Co., 51 S.W.2d 881.

OPINION

CAVE, J.

Plaintiff, Thomas Foster, sued defendants, James M. Kurn and John G. Lonsdale, Trustees of the "Frisco" Railway Company, for damages suffered in a crossing accident. Trial to a jury resulted in verdict for plaintiff in the amount of $ 7042 but the trial court ordered remittitur in the amount of $ 2042, which order plaintiff complied with. Defendants' motion for new trial was overruled and they have appealed. We shall refer to the parties as plaintiff and defendants.

The accident which forms the basis of this suit occurred November 11, 1934, at about 12:35 A. M., near Mindenmines, in Barton County. Suit was filed April 10, 1936, and trial was had in February, 1938, resulting in verdict and judgment for plaintiff in the sum of $ 2000. Appeal was prosecuted to this court. We reversed the judgment and remanded the cause. [Foster v. Kurn, 133 S.W.2d 1114.] Thereafter, defendants sought to remove the cause to the Supreme Court by writ of certiorari but that court denied the writ.

Defendants urge reversal of the judgment in the case at bar for the reasons, as they allege, that their demurrer, offered at the close of all of the evidence, should have been sustained because plaintiff did not make out a case for the jury on his pleaded and trial theory, and because plaintiff was guilty of contributory negligence as a matter of law.

We will state the facts in evidence that are deemed necessary for a disposition of the contention that plaintiff did not make a submissible case for the jury. This point was not presented on the former appeal and therefore not disposed of by our prior decision. Highway 160 runs east and west at a point near Mindenmines where it intersects defendants' line of railroad which, at that point, consists of a switch track and, at a point twenty-five feet, six inches west thereof, a main line track. These lines parallel and run from northeast to southwest, intersecting the highway at about a thirty-four degree angle. The highway is paved with concrete and the traveled portion thereof is twenty feet wide. At the crossing there are concrete aprons extending out on each side of the main pavement a distance of six feet, and running east to west a distance of thirty-five feet. The highway is level and straight from the crossing to a point about three-fourths mile east. There was no bell, wigwag, light, or other signal at the crossing. There was a flat car parked on the switch track, the south end of same extending out over the apron above mentioned to a point about even with the north line of the main pavement. There were electric lights on a steam shovel several hundred feet from the crossing, and the flat car was included within the rays of said lights, but the rays did not extend over the crossing.

Plaintiff had attended a dance and was enroute to his home at about 12:35 A. M., driving westward along said highway and approaching the above-mentioned crossing. He was thoroughly familiar with the crossing, having crossed it frequently, day and night, and had crossed it going east but a few hours before this.

The lights and brakes on his car were in good condition and he was driving at about twenty-five miles per hour. His windows were down very slightly. There was a corn crib and other obstructions located on the north side of the road, near the crossing, which obstructed the view to the northeast, along the track. The view to the south and west was unobstructed.

When he reached a point about 200 feet east of the crossing he saw the flat car with the end thereof protruding out over the concrete apron. Because of the angle at which the track crossed the road it was difficult to see down the track in that direction. He slowed his car to a speed of about eighteen...