Gardenhire v. St. Louis-San Francisco R. Co.

• Decision Date: 25 August 1930
• Citation: 31 S.W.2d 113,224 Mo.App. 586
• Parties: NORMAN GARDENHIRE, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILROAD COMPANY, APPELLANT
• Court: Missouri Court of Appeals

31 S.W.2d 113

224 Mo.App. 586

NORMAN GARDENHIRE, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILROAD COMPANY, APPELLANT

Court of Appeals of Missouri, Springfield

August 25, 1930

Appeal from the Circuit Court of Polk County.--Hon. C. H. Skinker Judge.

AFFIRMED.

Judgment affirmed.

E. T Miller, Mann & Mann and J. W. Miller for appellant.

(1) In any event, respondent, although not the driver or owner of the car, was guilty of such contributory negligence as to bar a recovery on account of any primary negligence of the appellant. Chawkley v. Railway, 297 S.W. 20, 26, 27 par. 11; Burton v. Pryor, 198 S.W. 1117, 1120; Durbin v. Railroad, 275 S.W. 361; Stotler v. Railroad, 200 Mo. 107, 144. (2) All questions of primary negligence being out of the case, because abandoned by respondent when asking instructions, and further, on account of the clear case of contributory negligence of the respondent made on his own proof, there remained in the case only the last-chance proposition. Respondent made no case on that theory and appellant's peremptory instruction should have been given. Browning v. Railroad, 106 Mo.App. 729; Hawkins v. Railroad, 135 Mo.App. 535-536; Markowitz v. Railroad, 186 Mo. 358, 359; Carrier v. Railroad, 175 Mo. 470; Hunt v. Railroad, 262 Mo. 277; Beal v. Railroad, 256 S.W. 733, 735; Hamilton v. Railroad, 250 Mo. 714, 722. (3) The mere possibility that the accident might have been avoided, or the fact that defendant's employees were guilty of some negligence, will not bring into play the humanitarian rule when the evidence further shows gross negligence on the part of the plaintiff in this case. Hawkins v. Railroad, 135 Mo.App. 535-536; Markowitz v. Railroad, 186 Mo. 358-359; Carrier v. Railroad, 175 Mo. 479; Hunt v. Railroad, 262 Mo. 277. (4) The humanitarian rule rests upon the negligence of the defendant occurring after it actually or constructively saw plaintiff in a position of peril. Disano v. Hall, 14 S.W.2d 483; State ex rel. Fleming v. Bland, 15 S.W.2d 798; Alexander v. Railroad, 4 S.W.2d 888.

Barrett & Kemp and Herman Pufahl for respondent.

(1) In an action submitted solely on the humanitarian doctrine, any question of contributory negligence on the part of the plaintiff is not considered. Burke v. Pappas, 293 S.W. 142; Gould v. Railroad, 290 S.W. 135. Conflicting evidence as to failure to sound an alarm before the train struck an automobile based on the humanitarian doctrine, is for the jury. Herrell v. Railroad, 18 S.W.2d 481. Crossing cases submitted under the humanitarian doctrine based on the negligence of the defendant in failing to give an alarm, where the facts to support the same were no stronger than the case at bar have been sustained by the courts of this State. Rummels v. Illinois Cent. R. Co., 15 S.W.2d 363; Herrell v. St. Louis-San Francisco Ry. Co., 18 S.W.2d 481. (2) Refusal to give instructions withdrawing issues of negligence from jury held harmless, where case was submitted on humanitarian doctrine alone. Reith v. Tober, 8 S.W.2d 607. (3) In a case submitted on the humanitarian doctrine alone, instructions on contributory negligence are properly refused. Phillips v. East St. L. & S. Ry. Co., 226 S.W. 863. (4) An instruction relating to the negligence of the plaintiff in a case submitted solely on the humanitarian doctrine, is properly refused. Phillips v. E. St. L. & S. Ry. Co., 226 S.W. 863.

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.--

This is a railroad crossing case. The plaintiff was injured by a train striking the automobile in which he was riding, the automobile being driven by the plaintiff's brother. There are several grounds of negligence in the petition, but both plaintiff and defendant agree that the only question in the case is the allegation, the proof and the submission of liability under the humanitarian rule, and the defendant contends that is not sufficiently pleaded and that, if it should be held that the pleadings are sufficient, the evidence is insufficient and the instructions improper to sustain the verdict under the humanitarian rule.

That part of the petition bringing the case within the humanitarian rule, is as follows:

"And for another and further assignment of negligence, the defendant by its servants and agents, at said time and place, was running its locomotive and train at a negligent and careless rate of speed and failed to keep and maintain a vigilant lookout, in violation of its duty to run said train at such a speed as would permit its engineer to have its train constantly under control; and negligently and carelessly failed to sound the whistle or give a warning, and negligently and carelessly failed to stop said train and slacken the speed thereof and thus avoid running into said automobile and injuring plaintiff, although they saw, or by the exercise of ordinary care might or could have seen, said automobile in which plaintiff was riding, upon or approaching the tracks, and that defendant, by its agents and servants, should have sounded its whistle and stopped or slackened the speed of said train in time, by the exercise of ordinary care, to have averted the collision with said automobile and injury to plaintiff, but carelessly and negligently failed so to do, which negligence directly contributed to cause the collision and damages aforesaid.

"Plaintiff further states that by reason of all the acts of negligence, acting separately or together, contributing thereto, plaintiff has been damaged as aforesaid in the sum of thirty thousand dollars ($ 30,000)."

The defendant filed an answer denying generally the allegations of the petition, and denying the specific allegations of negligence in the petition, and alleged a violation of certain ordinances of the city by failing to stop before proceeding to cross the railroad, and alleged contributory negligence on the part of plaintiff.

Plaintiff obtained verdict and judgment for $ 5000 and proper steps were taken by defendant for appeal. The defendant makes no complaint as to the proof of plaintiff's injury, and does not contend that the judgment is excessive.

There are several assignments of error but as we understand it from both parties the only controversy here is as to whether the petition stated a case under the humanitarian doctrine, and whether the evidence was sufficient to submit that question to the jury, and whether or not the jury was properly instructed on that particular question.

We think the paragraph of the petition which we have heretofore quoted is sufficient to submit the allegation of liability under the humanitarian rule.

We think the court did not err in refusing to instruct the jury to find for defendant at the close of plaintiff's evidence for evidence had been submitted that the operators of the train could have seen the automobile approaching the track or on the track when the train was approximately four hundred feet away. The evidence showed that for at least thirty feet from the track on the street there was no obstruction that would have kept the engineer from seeing the approaching automobile, after the train was within four hundred feet of the crossing. The evidence also shows that the automobile in covering the last thirty feet before reaching the track was traveling from six to ten miles per hour and at that rate it required some time for the automobile to reach the track after coming in view of the engineer on the approaching train. The testimony shows that the automobile stopped after it reached the track; how long it was stopped is uncertain, but long enough for the driver to tell the plaintiff to jump out and for the plaintiff to tell the driver to back off the track. One witness testified the automobile was stopped thirty seconds but changed the statement and said it was not that much. The plaintiff's testimony showed that several seconds must have passed from the time the automobile came within the thirty foot space and the time the train struck it. The testimony of an experienced engineer who had driven over that particular track for many years was that a train going at the rate this one was at that particular place could have been stopped in about two hundred and fifty feet, so we think the slacking of speed and giving of warnings were questions of fact properly for the jury. And the court did not err in submitting the issue to the jury at the close of all the evidence. The evidence of the engineer made it an issue. He testified that the engine was in good working condition, that he was running late that morning, that he knew of this crossing and its use by the public, that it was his duty to watch this crossing as he approached, and to give proper warnings; that he could see this crossing approximately four hundred feet away, that there was no obstructions to keep him from seeing an automobile thirty feet from the track, and that he did not see the automobile approaching. That the first time he saw the automobile was when he was two hundred feet from it, and at that time the automobile was stopped and remained stopped until it was struck. Conceding, as he says that he could not stop after he saw him two hundred feet back, it was a question for the jury to determine, as to whether he could have seen him when he was far enough back to have warned him or slackened his speed. He says the automobile was stopped when he first saw it. The evidence shows that the automobile could have been seen for at least thirty feet before it reached the track. The automobile was standing on the track when the engineer saw it, or it was approaching the crossing within the thirty foot space open to the engineer's view. The engineer said when he first saw it he was two hundred feet from it, and the driver of the automobile said he was...