Foster v. Kurn

• Decision Date: 20 November 1939
• Citation: 133 S.W.2d 1114,234 Mo.App. 909
• 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

133 S.W.2d 1114

234 Mo.App. 909

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

November 20, 1939

Appeal from Jackson Circuit Court.--Hon. Ben Terte, Judge.

Judgment reversed and cause remanded.

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

(1) The demurrer offered by the defendants at the close of the evidence was properly overruled for the reason that the issue of plaintiff's contributory negligence on the facts here presented was for the jury. Plaintiff's evidence was not inherently unbelievable or contrary to the law of physics. Savage v. Chicago, R. I. & P. Ry. Co., et al., 328 Mo. 44, 40 S.W.2d 628, l. c. 632; Mayfield v. K. C. S Ry. Co., 337 Mo. 79, 85 S.W.2d 116, l. c. 124, 125; Homan v. Mo. P. R. Co., 335 Mo. 30, 70 S.W.2d 869 l. c. 879; Feltz v. Term. R. R. Assn. of St. Louis, 336 Mo. 790, 81 S.W.2d 616, l. c. 617; Putnam v Unionville Granite Works et al., 122 S.W.2d 389, l. c. 390; Pabst v. Armbruster, 91 S.W.2d 652, l. c. 57; Hinds v. Chicago, B. & Q. R. Co., 85 S.W.2d 165, l. c. 169; Tunget v. Cook, 94 S.W.2d 921, l. c. 926; Hoff v. Wabash Ry. Co., 254 S.W. 874, l. c. 877; Hardin v. Ill. Cent. R. Co., 334 Mo. 1169, 70 S.W.2d 1075, 1079; Young v. Mo.-Ks.-Texas R. Co., 100 S.W.2d 929, l. c. 934; Simpson v. St. Louis-San Francisco Ry. Co., 334 Mo. 1126, 70 S.W.2d 904, 910; Hutchison v. St. Louis-San Francisco Ry. Co., 72 S.W.2d 87, 92. (2) The issue of plaintiff's own negligence contributing to his injury was for the jury under the evidence here presented. State ex rel. Quincy, O. & K. C. R. Co. v. Trimble, 254 S.W. 846, l. c. 850; Cook v. Missouri P. R. Co., 51 S.W.2d 171, l. c. 173; Toeneboehn v. St. Louis-San Francisco R. Co., 317 Mo. 1096, 298 S.W. 795, l. c. 802, 803; Dodson v. St. Louis-San Francisco Ry. Co., 233 Mo.App. 812, 10 S.W.2d 528, l. c. 533; Mundy v. St. Louis-San Francisco Ry. Co., 45 S.W.2d 941, l. c. 943; Underwood v. St. Louis I. M. & S. Ry. Co., 190 Mo.App. 407, 177 S.W. 724, l. c. 727; Whiffen v. Mo. P. R. Co., 262 S.W. 460, l. c. 462; Swigart v. Lusk, 196 Mo.App. 471, 192 S.W. 138, l. c. 143. (3) The court did not abuse his judicial discretion in admonishing the jury to be guided by the instructions rather than the argument of plaintiff's counsel. Robinson v. Chicago, Great Western R. Co., 66 S.W.2d 180, l. c. 193; Cordray v. City of Brookfield, 88 S.W.2d 161, l. c. 165; Lewis v. Ill. Cent. R. Co., 319 Mo. 233, 50 S.W.2d l. c. 127; Garofalo v. Societa Operaia di Mutuo Soccorso St. Giuseppe, 112 S.W.2d 934, l. c. 940; Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115, l. c. 119; Lang v. J. C. Nichols Investment Co., 227 Mo.App. 1123, 59 S.W.2d l. c. 70.

J. W. Jamison, Henderson & Deacy and Thos. E. Deacy for appellants.

(1) The court erred in refusing to sustain defendants' demurrer to the evidence because the evidence establishes that the plaintiff was guilty of contributory negligence as a matter of law in that plaintiff failed to keep a lookout for the train which caused his injury and see said train while the same was plainly visible, in time to have stopped his automobile and have avoided said collision, and plaintiff was thereby guilty of contributory negligence as a matter of law. Dowler v. Kurn, 119 S.W.2d 852; State ex rel. Kansas City Southern Ry. Co. v. Shain et al. (Mo.), 105 S.W.2d 815; Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621; Stotter v. Chicago & A. Ry. Co., 204 Mo. 619, 103 S.W. 1; Schmidt v. Mo. P. Ry. Co., 191 Mo. 215, 90 S.W. 136, 3 L.R.A. (N. S.), 196; Huggart v. Mo. P. Ry. Co., 134 Mo. 673, 36 S.W. 220; Kelsay v. Mo. P. Ry. Co., 129 Mo. 362, 30 S.W. 339; Goodwin v. Eugas, 290 Mo. 673, 236 S.W. 50; McKenna v. Lynch, 289 Mo. 16, 233 S.W. 175; Lauson v. Fond du Lac, 141 Wis. 57, 123 N.W. 629, 25 L.R.A. (N. S.) 40. (2) The court erred in refusing to sustain defendants' demurrer to the evidence because the evidence shows that plaintiff while approaching said railroad crossing did not exercise care commensurate with the circumstances and did not continue to look for the approaching train at a time and place where and when he could see the same and plaintiff was thereby guilty of contributory negligence as a matter of law. State ex rel. Kansas City Southern Ry. Co. v. Shain, 105 S.W.2d 915; Dowler v. Kurn, 119 S.W.2d 852; Monroe v. Chicago & A. Ry. Co., 297 Mo. 633, 249 S.W. 644; Solomon v. Dunkin, 194 Mo.App. 571, 185 S.W. 1141; State ex rel. Heinz v. Bland (Mo.), 237 S.W. 1018; Evans v. Ill. Cent. Ry. Co., 289 Mo. 493, 233 S.W. 397; Hale v. St. Joseph Ry. Co., 287 Mo. 499, 230 S.W. 113; Kelsay v. Mo. P. Ry. Co., 129 Mo. 362, 30 S.W. 339. (3) The court erred in refusing to sustain defendants' demurrer for the reason it is shown by the evidence that plaintiff was guilty of contributory negligence as a matter of law and that the evidence of plaintiff that he looked and did not see the train involved in the collision was contrary to physical law and facts of common knowledge, and under the evidence in the cause cannot be accepted as substantial evidence and the same will be disregarded. Carner v. St. Louis-San Francisco Ry. Co. (Mo.), 89 S.W.2d 947; State ex rel. K. C. Southern Ry. Co. v. Shain et al., 105 S.W.2d 915; Dunn v. Alton Ry. Co. (Mo.), 104 S.W.2d 311; Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621; Hardin v. Ill. Cent. Ry. Co., 334 Mo. 1169, 70 S.W.2d 1075; Gurley v. Mo. P. Ry. Co., 104 Mo. 211, 16 S.W. 11. (4) The evidence discloses that plaintiff's own contributory negligence contributed to his injury and bars a recovery by him even though the defendants were negligent. State ex rel. K. C. Southern Ry. Co. v. Shain et al., 105 S.W.2d 915; Worth v. St. L.-S. F. Ry. Co., 334 Mo. 1025, 69 S.W.2d 672; State ex rel. Wells v. Haid, 324 Mo. 759, 25 S.W.2d 92; Weller v. C., M. & St. P. Ry. Co., 120 Mo. 635. (5) The court erred in refusing to sustain the objection of counsel for defendants to the remarks of plaintiff's counsel in the closing argument to the effect that the defendants were a powerful railroad corporation and that plaintiff was an individual, and in refusing to withdraw said remarks from the consideration of the jury upon motion of defendants' counsel, and in allowing counsel for the plaintiff to again make said prejudicial remarks to the jury. Harper v. Western Union Tel. Co., 92 Mo.App. 304; Beer et al. v. Martell (Mo.), 55 S.W.2d 482; Smith v. St. Louis-S.W. Ry. Co., 31 S.W.2d 105.

OPINION

SHAIN, P. J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 2000, and defendants have appealed.

As defendant's main contention is that their instruction in the nature of demurrer to the evidence should have been given, because plaintiff was guilty of contributory negligence, as a matter of law, we must necessarily state the facts in their most favorable light to the plaintiff.

These facts show that plaintiff was injured on November 12, 1934 as a result of his automobile, which he was driving, striking a boxcar, owned and operated by the defendants, with great force and violence. The collision occurred where defendants' railroad tracks cross U.S. Highway No. 160 near the railroad station at Minden Mines in Barton County. At the point in question U.S. Highway 160 runs east and west and the railroad tracks run in a northeasterly and southwesterly direction. The highway is paved with concrete for a width of twenty feet but, at the crossing, there are concrete aprons on each side of the pavement about six feet in width, making the highway at that point about thirty-two feet in width. The aprons extend east and west along the sides of the twenty feet pavement for a distance of thirty-five feet and eight inches. To the east of this crossing the highway runs straight and is level for more than a mile. There are two sets of railroad tracks at the crossing. The track to the west is the main line and the one to the east a passing track. On the night in question a southbound freight train, owned and operated by the defendants, arrived at Minden Mines about 12:30 P. M. Some switching operations being required at Minden Mines, the crew detached the engine at the north edge of the paved portion of the highway and the train, consisting of three boxcars and a caboose, was left standing north of the highway on the west or main line track, the car nearest the highway being a flat car. This car extended over the apron on the north side of the highway and south to the edge of the regular 20 foot slab of the highway or possibly a little beyond. The engine then proceeded south west on the main line track and thence northeast on the passing track and, by means of a switching operation, it conveyed four boxcars, which had been standing upon the passing track northeast of the highway, to a point southwest thereof and then on to the main line track. The engine was headed southwest with its headlight shining. To the rear and northeast of the engine were the four box-cars. The engine and the four boxcars then proceeded northeast, it being the intention to couple the cars onto the portion of the train that had been left northeast of the highway. When the boxcar furtherest northeast was about in the center of the highway, plaintiff's automobile coming from the east, ran into it. There was no watchman, or other person, at or on the crossing and no light of any kind or character on the northeast end of the northeast, or lead, car as it was backed northeast over the crossing. There was no gate, crossing bell flashlight, wigwag or other automatic signal at this crossing. No whistle was blown during the backing operation and the locomotive bell was not...