Gould v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 16 August 1926
• Docket Number: 25104
• Citation: 290 S.W. 135,315 Mo. 713
• Parties: Sam Gould v. Chicago, Burlington & Quincy Railroad Company, Appellant
• Court: Missouri Supreme Court

290 S.W. 135

315 Mo. 713

Sam Gould v. Chicago, Burlington & Quincy Railroad Company, Appellant

No. 25104

Supreme Court of Missouri

August 16, 1926

Appeal from Jackson Circuit Court; Hon. Samuel A. Dew Judge.

Affirmed.

H J. Nelson and Langworthy, Spencer & Terrell for appellant.

(1) The court committed error in overruling the defendant's objection to the introduction of any testimony and in overruling the defendant's demurrer to the plaintiff's evidence and in refusing to give the peremptory instruction requested by the defendant at the close of the entire case. (a) Under the pleadings, the opening statement of counsel and under the evidence there is no room for the application of the humanitarian doctrine on which the case was submitted and it appears as a matter of law that the plaintiff's injuries were the direct result of his own negligence. The plaintiff was stationed at the entrance of the bridge and had the sole duty of keeping on a constant lookout for anything or any person that might come on the bridge and was required to be on the alert at all times and to use his eyes and ears in order to observe anything approaching from any direction. These were his sole duties and there was nothing else to require his attention. The day was bright and clear and there was no noise. Under well-recognized principles of law he should be denied recovery as a matter of law. Degonia v. Railroad, 224 Mo. 591; Gabel v. Railroad, 251 Mo. 268; State ex rel. v. Ellison, 271 Mo. 463; Nivert v Railroad, 232 Mo. 641; Clancy v. Transit Co., 192 Mo. 615; Van Dyke v. Railroad, 230 Mo. 286; Sissel v. Railroad, 214 Mo. 526; Radcliffe v. Railroad (C. C. A. 4th Cir.), 271 F. 304; Hearell v. Railroad, 213 S.W. 561; Blancke v. Railroad, 133 N.E. 484; Olsen v. Payne, 199 P. 757. (b) There was no duty on the part of the engineer to keep a lookout for plaintiff, but even if there was it appears conclusively that the engineer could not possibly have seen plaintiff until he was within approximately one hundred and fifty feet and the pilot of the engine was within a little over one hundred feet; that at the rate at which the train was traveling he would not have had more than three to five seconds in which to observe plaintiff's position and to apply the brakes and sound the whistle. The physical facts demonstrate that it was utterly impossible for the engineer to have avoided striking plaintiff, and that plaintiff's case is based upon sheer conjecture. Nivert v. Railroad, 232 Mo. 639; McGee v. Ry., 214 Mo. 542; Markovitz v. Railroad, 186 Mo. 350; Young v. Railroad, 227 Mo. 331; White v. Railroad, 159 Mo.App. 508. (2) The court committed error in giving the jury plaintiff's Instruction 1. The instruction was intended to cover the entire case, and was erroneous for at least three reasons: (a) It is directly contrary to the physical facts and is based upon conjecture and is highly misleading as to the very question intended to be submitted. Nivert v. Railroad, 232 Mo. 639; McGee v. Ry., 214 Mo. 542; Markovitz v. Railroad, 186 Mo. 359; Young v. Railroad, 227 Mo. 331; White v. Railroad, 159 Mo.App. 508. The instruction wholly fails to submit the question whether by the sounding of the whistle the plaintiff would have been able to have removed himself from the path of the engine. This was the very crux of plaintiff's case and if the question was to be submitted to the jury at all it was error not to submit the question in clear and unmistakable language. Kinlen v. Railroad, 216 Mo. 164. (b) Under the law the engineer was not required to keep a lookout for the plaintiff and it was error to submit the question of whether by the exercise of ordinary care he should have seen the plaintiff in a position of peril. Degonia v. Railroad, 224 Mo. 591; State ex rel. v. Ellison, 271 Mo. 468; Frye v. Railroad, 200 Mo. 405; Rashall v. Railroad, 49 Mo. 509; Nivert v. Railroad, 232 Mo. 639. (c) The concluding sentence of the instruction excludes the possibility of the jury finding the plaintiff guilty of concurrent negligence, which under the particular facts in this case was particularly prejudicial. Laughlin v. Railroad, 144 Mo.App. 197. (3) The court committed error in admitting evidence to the effect that it was customary for trains aproaching the bridge to sound the whistle and in refusing to give Instruction M. The evidence showed that the whistles which were ordinarily sounded were sounded for a crossing a half a mile away from the bridge and for the draw and plaintiff had no right to rely upon this whistle. Furthermore, the case was not submitted to the jury on the ground that there was negligence in violation of a custom, and defendant's Instruction M taking this from the jury should have been given. Kirkland v. Bixby, 222 S.W. 462; Staroske v. Pub. Co., 235 Mo. 76; Frye v. Railroad, 200 Mo. 407; Degonia v. Railroad, 224 Mo. 594. (4) The court committed error in admitting evidence to the effect that a few individuals used the bridge by virtue of passes granted them. The petition did not plead that the bridge was used by the public in general and the evidence did not so show. Degonia v. Railroad, 224 Mo. 590. (5) The court committed error in refusing to give to the jury defendant's Instruction I. This instruction presented the question whether the defendant was required to keep a lookout ahead for soldiers. Under the decisions of this State the defendant was not required to keep such lookout and the jury should have been plainly so instructed. State ex rel. v. Ellison, 271 Mo. 470; Degonia v. Railroad, 224 Mo. 592. (6) The court committed error in refusing to give defendant's Instructions N and O. The defendant was clearly entitled to have one or the other of these instructions given. They presented the question as to whether the plaintiff's injuries were due to his own negligence or due to his failure to perform the duty imposed upon him of keeping on the alert and observing everything that took place within sight or hearing of the bridge. If the case was submitted to the jury at all, clearly the defendant was entitled to have the jury instructed on this phase of the case. State ex rel. v. Ellison, 271 Mo. 474; American Brewing Assn. v. Talbot, 141 Mo. 674. (7) The verdict of the jury is excessive. Furthermore, the amounts of compensation allowed by the United States Government, for whose benefit this suit is prosecuted, indicate that the amount is excessive. Stolze v. Transit Co., 188 Mo. 581; Dominick v. Mining Co., 255 Mo. 463; Clifton v. Railroad, 232 Mo. 708; Highfill v. Independence, 189 S.W. 801; Lyons v. Ry., 253 Mo. 143. (8) Plaintiff is not the real party in interest and is not entitled to maintain this action. War Risk Insurance Act, U.S. Comp. Stat. 1923, Cumulative Supplement, sec. 514tttt; Sec. 1155, R. S. 1919. (9) The War Risk Insurance Act, under which this suit was prosecuted, as far as it undertakes to control, direct and compel the prosecution of plaintiff's alleged cause of action and to take an assignment thereof is violative of the Federal Constitution. 5th Amendment to the Federal Constitution; Sec. 8, Art. I, Federal Constitution.

Hogsett & Boyle for respondent.

(1) The court committed no error in refusing to give defendant's peremptory instruction requested at the close of the whole case. Under the pleadings and the evidence a typical case was made for the application of the humanitarian doctrine and this is true even under the strictest application of the so-called "section-hand rule" contended for by appellant (which rule, however, has no application to this case). Degonia v. Railroad, 224 Mo. 592; Gabel v. Railroad, 251 Mo. 257; State ex rel. v Ellison, 271 Mo. 468. It was a fair question for the jury whether the engineer had time to give warning to plaintiff after he saw, or by the exercise of ordinary care, could have seen him in a position of peril and oblivious to his peril and thereby to have avoided striking him. Logan v. Railroad Co., 254 S.W. 711; Campbell v. Railroad Co., 211 Mo.App. 331; Roques v. Railroad Co., 264 S.W. 476; Johnson v. Railroad Co., 268 S.W. 903; Messer v. Ry. Co., 274 S.W. 864; Montague v. Ry. Co., 193 S.W. 936, 264 S.W. 813. (2) The court committed no error in giving to the jury Instruction 1. (a) The instruction clearly requires the jury to find that a warning would have avoided the accident and that the injury was the direct result of the negligence of the engineer in failing to give the warning. Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 737; Reyburn v. Railroad, 187 Mo. 565; Hill v. Ry. Co., 289 Mo. 193; Hoff v. Wabash Ry. Co., 254 S.W. 878. (b) The engineer was under a duty to keep a lookout for plaintiff and other soldiers guarding the bridge and the socalled section-hand rule or trackmen rule contended for by appellant does not apply. Blancke v. Railroad Co., 133 N. E. (Ohio) 484; Weininger v. Union Pacific, 276 F. 65; Kelly v. Ry. Co., 107 A. 780; Kidd v. Ry. Co., 274 S.W. 1079; Greenwell v. Railroad Co., 224 S.W. 404; Hubbard v. Wabash Railroad Co., 193 S.W. 579; Church v. Railroad Co., 119 Mo. 203; Dixon v. Railroad Co., 109 Mo. 403; Zini v. Terminal Railroad Co., 250 S.W. 47; Winkler v. Terminal Railroad Co., 227 S.W. 625; Frain v. Davis, 237 S.W. 131; Davidson v. Hines, 246 S.W. 295; Hughes v. Ry. Co., 274 S.W. 703. (3) The court did not err in admitting evidence to the effect that it was customary for trains approaching the bridge to sound a whistle, and did not commit error in refusing to give defendant's Instruction M. (a) Testimony to the effect that it was customary for trains approaching the bridge to sound a whistle was admissible. Appellant proved the same fact by its own witnesses, hence it is in no position to complain of evidence offered to the same effect by the plaintiff. Gray v. Novinger, 166...