Gann v. Chicago, R.I. & P. Ry. Co.

• Citation: 6 S.W.2d 39,319 Mo. 214
• Decision Date: 03 March 1928
• Docket Number: 26002
• Parties: John Gann v. Chicago, Rock Island & Pacific Railway Company and George N. Liston, Appellants
• Court: United States State Supreme Court of Missouri

6 S.W.2d 39

319 Mo. 214

John Gann v. Chicago, Rock Island & Pacific Railway Company and George N. Liston, Appellants

No. 26002

Supreme Court of Missouri

March 3, 1928

Appeal from Daviess Circuit Court; Hon. Arch B. Davis Judge.

Affirmed.

Luther Burns, Henry S. Conrad, L. E. Durham and Hale Houts for appellants.

(1) Under the view of the case most unfavorable to the plaintiff the defective crossing was the sole proximate cause of the accident. Kelly v. Railroad, 75 Mo. 138; State ex rel. v. Ellison, 271 Mo. 463; De Moss v. Kansas City, 296 Mo. 526; George v. Railway, 286 S.W 120; Cook v. Railroad, 162 Mo. 659; Behen v. Transit Co., 186 Mo. 441; Graefe v. Transit Co., 224 Mo. 246; Griffin v. Railway, 193 S.W. 810; Tannehill v. Railroad, 279 Mo. 172; Markowitz v. Railroad, 186 Mo. 358; Sullivan v. Gideon, 271 S.W. 990; Burge v. Railroad, 244 Mo. 102; Rollison v. Railroad, 252 Mo. 540. (a) The court therefore erred in refusing to direct a verdict for the defendant Liston. (b) And also erred as to the defendant Rock Island in giving instructions submitting other theories to the jury. (2) The jury by its verdict found against plaintiff upon the defective crossing theory and this court should reverse the judgment as to defendant Rock Island also. Sec. 1514, R. S. 1919; McGinnis v. Railroad, 200 Mo. 347; and cases, supra.

Davis & Ashby, L. B. Gillihan, M. P. Murphy and Pross T. Cross for respondent.

(1) The defective crossing not the only proximate cause. Appellant seems to contend that there can be only one proximate cause of an accident or injury, and advances the argument that the defective crossing was what caused the automobile to stop on the track and that therefore it was the only proximate cause, and that therefore, there could be no recovery under either the humanitarian theory or the crossing-signal statute. The defective crossing was merely one of several proximate causes. The failure of defendant to give statutory crossing signals, combined with its failure to exercise the care required by the humanitarian rule, and its negligence in maintaining a defective crossing, are concurring proximate causes of the accident and injury. Smith v. Fordyce, 190 Mo. 1; Willi v. Rys., 205 Mo.App. 272; Hawkins v. Railway, 182 Mo.App. 323; Buckner v. Stockyards Co., 221 Mo. 700; Williams v. Lamp Co., 173 Mo.App. 87; Meade v. Railroad, 68 Mo.App. 92; Voglegesang v. St. Louis, 139 Mo. 127; Bassett v. St. Joseph, 53 Mo. 290; Brennan v. St. Louis, 92 Mo. 482; Vaughn v. Meier, 246 S.W. 280. "Proximate cause" has been held to be the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss. Owen v. Cook, 9 N.D. 134, 47 L. R. A. 646; Yoders v. Amwell, 172 Pa. St. 460; Aetna Ins. Co. v. Boom, 95 U.S. 132; Godwin v. Railroad Co., 120 Ga. 747; Freeman v. Association, 156 Mass. 353; Dickson v. Railroad Co., 124 Mo. 140. (a) The failure of defendant to warn plaintiff by the signals required by statute, was the dominant, and efficient cause, and the one that necessarily set the other causes in operation, and hence a proximate cause. (b) The failure either to ring the bell continuously within eighty rods of the crossing, or to sound the whistle at a point beginning eighty rods from and at intervals, until it is passed, rendered defendant guilty of negligence per se. And the law presumes that such negligence was a proximate cause of the collision, and the burden is cast on defendant to overcome this presumption. Sec. 9943, R. S. 1919; Persinger v. Railway, 82 Mo. 196; Crumpley v. Railroad, 98 Mo. 34; Kenney v. Railway, 105 Mo. 370; Lamb v. Railroad, 147 Mo. 171; Green v. Railway, 192 Mo. 131; Stotler v. Railroad, 200 Mo. 107; McNulty v. Railway, 203 Mo. 475; McGee v. Railway, 214 Mo. 530; Monroe v. Railway, 280 Mo. 483; Lloyd v. Railroad, 128 Mo. 595; Allen v. Railroad, 281 S.W. 737; Midgett v. Railway, 124 Mo.App. 540; Day v. Railway, 132 Mo.App. 707; Byars v. Railway, 161 Mo.App. 692; Brown v. Railway, 166 Mo.App. 255; Welch v. Railway, 190 Mo.App. 213; Pierson v. Railway, 275 S.W. 561. (c) From any angle the evidence is viewed, it discloses that defendants violated every principle of the humanitarian doctrine, and the case was properly submitted on that theory. Allen v. Railway, 281 S.W. 737; Zumwalt v. Railway, 266 S.W. 717; Logan v. Railway, 254 S.W. 705; State ex rel. Wabash v. Trimble, 260 S.W. 1000; Chapman v. Railway, 269 S.W. 688; Koontz v. Railway, 253 S.W. 413; Conley v. Railroad, 243 S.W. 426; Tavis v. Bush, 280 Mo. 383, 217 S.W. 274; Ellis v. Railway, 234 Mo. 630; Hinzeman v. Railway, 199 Mo. 56; Wolf v. Railway, 251 S.W. 441; Murrell v. Railway, 279 Mo. 92; Maginnis v. Railway, 268 Mo. 667; Eckhard v. Railway, 190 Mo. 593; Monroe v. Railway, 280 Mo. 483. Defendant submitted on humanitarian theory and cannot now complain. (d) Defendants, in their instructions, requested the court to submit the question of the humanitarian doctrine to the jury, and the court granted their requests. They will not now be heard to contend that there was no evidence for such a submission. They are bound by their trial theory. State ex rel. v. Allen, 272 S.W. 925; Torrence v. Pryor, 210 S.W. 432; Crum v. Crum, 231 Mo. 626; Brunswick v. Ins. Co., 278 Mo. 154, Paramore v. Campbell, 245 Mo. 287; Bank v. Clifton, 263 Mo. 200. (e) It was the duty of defendant to run and operate its train with reasonably sufficient and effective brakes, and a failure to do so was negligence on its part. And if its inability to prevent the injury by checking speed or stopping, was due to its prior negligence in failing to have good and sufficient brakes, then such inability to check speed or stop is no defense, and defendant will be treated as though it had such ability, and negligently failed to use it. Goben v. Railway, 254 S.W. 846, 226 S.W. 631; Ruenzi v. Payne, 231 S.W. 294; Abramowitz v. Railway, 214 S.W. 119; Mason v. Railway, 246 S.W. 318; Sullivan v. Railway, 117 Mo. 214; Maher v. Railway, 64 Mo. 267; Smith v. Railroad, 282 S.W. 62; Williams v. Railway, 249 Mo.App. 489; Chappell v. Railway, 174 Mo.App. 126. The evidence clearly shows that the train was from 150 to 300 feet away from the crossing when the auto went dead on the crossing. (f) Appellant makes the astounding statement that the engineer's testimony must be accepted, if at all, "in its entirety." This is not the law. But the jury are at liberty to believe a part, and disbelieve other parts, of a witness's testimony. Gould v. Railroad, 29 S.W. 135; State v. Williams, 274 S.W. 50; State v. Harp, 306 Mo. 428; State v. Stewert, 287 Mo. 177; State v. Conley, 255 Mo. 185; Preston v. Railway, 292 Mo. 442. (2) That plaintiff's Instruction 4 correctly states the rule of law, is neither disputed, doubted nor denied. It could not possibly prejudice defendants or deprive them of any lawful right. Their true and real objection to the instruction was that it gave the jury knowledge and light on a matter that they were likely to be ignorant on. And in their ignorance defendant hoped to profit. The lay mind, knowing nothing of the laws of tort or of contribution, might well conceive the idea that a verdict for $ 10,000 against both defendants could be collected in the full amount from each defendant, thereby making a total of $ 20,000. Plaintiff had a right to have the jury enlightened on this matter, and the jury had a right to know just what a verdict for a given sum meant. They had a right to know whether plaintiff could collect the verdict in full from both defendants, or whether the one sum from both. Shaffer v. Railroad, 300 Mo. 477; Youtsey v. Railroad, 251 S.W. 468, 259 S.W. 771. (3) The objection to the reference to the number of pounds pressure carried in the train line, was clearly without merit, but the court sustained defendant's objection. It was competent under the well known rule that if the inability to stop is due to a prior act of negligence, it will not be available as a defense. The authorities on this point have heretofore been cited. The evidence of ninety pounds pressure on other railroads was admitted without objection. If plaintiff's conduct was wrongful, so was defendant's, and defendant's counsel cannot complain of an error of which it is also guilty. Appellant is not entitled to review of alleged improper argument and conduct of counsel. In every instance of objection made thereto at the trial, such objection was sustained. And in many instances rebuke was volunteered by the court itself. Mueller v. Ralston Purina Co., 254 S.W. 720.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

The plaintiff had a verdict and judgment below for $ 10,000 for damages for personal injuries against the defendants, Chicago, Rock Island & Pacific Railway Company and George U. Liston, its locomotive engineer. Both defendants appeal. The case grows out of a grade crossing collision at Jamesport, Missouri, on the afternoon of June 17, 1922. The respondent was riding in the back seat of a Ford touring car driven by one Tobe Gillilan and owned by Frank Gay, who was the third member of the party. As the automobile was passing along a public road across the railroad station grounds it was struck by a passenger train. The evidence for respondent was that the planking of the railroad crossing was broken, rough and uneven. After the front wheels of the automobile had crossed the first rail of the track they struck the rough planking, the car bounced and the motor stopped. The driver started the engine again and got nearly over, but the locomotive struck the back wheel and fender.

The respondent's petition made several assignments of negligence which were not submitted to the jury. Those on which he stood were: (1)...