Grimes v. St. Louis-S.F. Ry. Co.

• Decision Date: 21 June 1937
• Docket Number: No. 34364.,34364.
• Citation: 106 S.W.2d 462
• Parties: JOHN E. GRIMES, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation.
• Court: Missouri Supreme Court

106 S.W.2d 462

JOHN E. GRIMES, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation.

No. 34364.

Supreme Court of Missouri.

Division Two, June 21, 1937.

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

AFFIRMED.

Douglas Hudson, Louis R. Weiss and Mosman, Rogers, Bell & Buzard for appellant.

The court erred in sustaining defendant's motion for a new trial on the ground plaintiff was guilty of contributory negligence as a matter of law. (a) Where, under the evidence viewed in the light most favorable to plaintiff, reasonable minds might reach different conclusions, contributory negligence is a question of fact for the jury. Early v. Burt, 134 Kan. 445, 7 Pac. (2d) 98; Balono v. Nafziger, 137 Kan. 513, 21 Pac. (2d) 896; Sponable v. Thomas, 139 Kan. 710, 33 Pac. (2d) 721; Trittle v. Phillips Petroleum Co., 37 Pac. (2d) 998; Zumbrum v. Osawatomie, 130 Kan. 719, 288 Pac. 586; Keir v. Trager, 134 Kan. 507, 7 Pac. (2d) 50. (b) Familiar "stop, look and listen" rule rests on the assumption that the traveler either sees or knows of the railroad crossing, and does not apply where he is a stranger, and neither sees nor knows of the crossing. 52 C.J., pp. 311, 322, 499, secs. 1888, 1895, 2067; 22 R.C.L., pp. 1030, 1035, 1036, secs. 261, 268, 269; Harwood v. Railway Co., 118 Kan. 332, 234 Pac. 990; Chicago, R.I. & P. Ry. Co. v. Hansen, 78 Kan. 278, 96 Pac. 668; Agee v. Railroad Co., 288 S.W. 992; King v. Railroad Co., 98 Mo. 235, 11 S.W. 563; Gregoriev v. Railroad Co., 273 Pac. 78; Chicago & E. Railroad Co. v. Fretz, 173 Ind. 519, 90 N.E. 76; Davidson v. Ry. Co., 170 N.C. 281, 87 S.E. 35; Lawrence v. Railroad Co., 208 Pac. 966. (c) In determining the alleged contributory negligence of the plaintiff, either as a question of fact or as a matter of law, the court should consider the behavior of plaintiff and defendant, and the unusual, peculiar and extraordinary situations unknown to and confronting plaintiff, together with defendant's breaches of duty as shown by the evidence. Bollinger v. Schaff, 113 Kan. 124, 213 Pac. 644; Montgomery v. Railroad Co., 181 Mo. 477, 79 S.W. 930; Norfolk & N.W. Railroad Co. v. Holbrook, 27 Fed. (2d) 326; Pokora v. Ry. Co., 292 U.S. 98, 78 L. Ed. 1149, 54 Sup. Ct. 582; Pokora v. Ry. Co., 86 Fed. (2d) 168; Baltimore & O. Railroad Co. v. Zaleski, 72 Fed. (2d) 502.

Joseph W. Jamison, Henry S. Conrad, L.E. Durham, Hale Houts and I.M. Lee for respondent.

(1) The case is governed by the Kansas law. Woodward v. Bush, 282 Mo. 163; Gersman v. Ry. Co., 229 S.W. 167; Caylor v. Ry. Co., 332 Mo. 851, 59 S.W. (2d) 661. (2) The order granting new trial is clearly sustained on the ground assigned by the court "because plaintiff was guilty of contributory negligence as a matter of law." Because of contributory negligence on the part of plaintiff the court erred in not directing a verdict for defendant by giving the requested peremptory instruction at the close of all the evidence. Caylor v. Ry. Co., 332 Mo. 858, 59 S.W. (2d) 661; Bollinger v. Ry. Co., 334 Mo. 731, 67 S.W. (2d) 985; Clark v. Ry. Co., 127 Kan. 1, 272 Pac. 128; Williams v. Railroad Co., 122 Kan. 256, 252 Pac. 470; Mourning v. Railroad Co., 110 Kan. 417, 204 Pac. 721; Maris v. Railroad Co., 98 Kan. 208, 158 Pac. 6; Coleman v. Railroad Co., 87 Kan. 193, 123 Pac. 752; Dunlap v. Ry. Co., 187 Kan. 201, 203 Pac. 754; Marple v. Ry. Co., 85 Kan. 705, 118 Pac. 690; A.T. & S.F. Railroad Co. v. Holland, 60 Kan. 216, 58 Pac. 472; Railroad v. Mercier, 61 Kan. 736, 60 Pac. 735; Reader v. Ry. Co., 112 Kan. 404, 210 Pac. 1112; Bazell v. Ry. Co., 134 Kan. 276, 5 Pac. (2d) 804; Cooper v. Ry. Co., 117 Kan. 711, 232 Pac. 1024; Hooker v. Railroad Co., 134 Kan. 763, 8 Pac. (2d) 394; Gersman v. Ry. Co., 229 S.W. 169; Woodward v. Bush, 282 Mo. 179; Wehe v. Ry. Co., 97 Kan. 794, 156 Pac. 742; Torgeson v. Railroad Co., 124 Kan. 801, 262 Pac. 564; Harwood v. Railroad Co., 118 Kan. 334, 234 Pac. 990; 52 C.J., p. 19; Holman v. Ry. Co., 113 Kan. 712, 215 Pac. 1111; Kirkland v. Ry. Co., 104 Kan. 388, 179 Pac. 362; Kelsey v. Ry. Co., 129 Mo. 376; Lane v. Ry. Co., 132 Mo. 27; Hook v. Ry. Co., 162 Mo. 580; Weighman v. Railroad Co., 223 Mo. 712; Heinen v. Ry. Co., 125 Kan. 616; Coleman v. Ry. Co., 130 Kan. 331, 286 Pac. 254; Chicago, R.I. & P. Ry. v. Hansen, 78 Kan. 278, 96 Pac. 668; Agee v. Railroad Co., 288 S.W. 992; King v. Ry. Co., 98 Mo. 235; Bunton v. Ry. Co., 100 Kan. 170, 163 Pac. 801; Rathbone v. Ry. Co., 113 Kan. 260, 214 Pac. 109; Hall v. Ry. Co., 240 S.W. 176; Moberly v. Railroad Co., 98 Mo. 187. (3) The order granting a new trial is also to be supported and affirmed for error in giving plaintiff's instructions or any other errors assigned in respondent's motion for new trial. Tabler v. Perry, 337 Mo. 164, 85 S.W. (2d) 476; Beer v. Martel, 332 Mo. 61; Nolan v. Railroad Co., 250 Mo. 621.

BOHLING, C.

Following a verdict of $10,000 for damages, personal injuries and property, John E. Grimes appeals from an order granting the St. Louis-San Francisco Railway Company a new trial.

The case involves a highway-railroad grade intersection accident between plaintiff's southbound automobile and one of defendant's southbound passenger trains at the intersection of Kansas State Highway No. 7 and defendant's tracks approximately one mile north of Columbus, Kansas, on November 23, 1928, about nine P.M.

The trial court sustained defendant's motion for new trial on the ground plaintiff was guilty of contributory negligence as a matter of law. Plaintiff contends, under the facts, he may not be held guilty of contributory negligence as a matter of law; conceding the propriety of the court's action under the Kansas law if he was so negligent. The following Missouri cases, among others, review the Kansas law on contributory negligence: Tate v. Missouri-K.-T. Ry. Co. (Mo.), 93 S.W. (2d) 873, 876(3); Gersman v. Atchison, T. & S.F. Ry. Co. (Mo.), 229 S.W. 167, 169(3, 4); Woodward v. Bush, 282 Mo. 163, 174(III), 220 S.W. 839, 842(III); Bollinger v. St. Louis-S.F. Ry. Co. (Banc), 334 Mo. 720, 728, 67 S.W. (2d) 985, 989(4); Caylor v. St. Louis-S.F. Ry. Co., 332 Mo. 851, 858(3), 59 S.W. (2d) 661, 663(2, 3).

The involved physical facts [consult Tate v. Missouri-K.-T. Ry. Co. (Mo.), 93 S.W. (2d) 873, 876(2); State ex rel. Kansas City So. Ry. Co. v. Shain (Banc, June 5, 1937), 340 Mo. 1195, 105 S.W. (2d) 915], were: The highway and the railroad tracks, extending practically due north and south, converge and intersect at an acute angle. The highway is practically due north and south. The railroad track is almost due north and south, being a few degrees east of north and west of south, that is, rather northeast to southwest. Both are straight; except that a short distance north of the intersection, the highway makes a slightly perceptible swerve to the west, then, proceeding rather southeastwardly, crosses the railroad track at a greater angle than it would have had it proceeded due south, and, making another slight swerve, continues south. As we read the exhibits, this swerve (sometimes designated turn or curve) north of the intersection was considerably less than the width of the graveled portion of the highway, apparently some less than one-half the width of said pavement. Similar conditions with reference to the swerve existed south of the intersection. The distances between the center of the highway and the center of the railroad track at corresponding distances north of the center of the intersection, as ascertained by actual measurements, are: 139 feet between said center lines at a point 900 feet north of said intersection; 75 feet, 510 feet north; 60 feet, 400 feet north; 47 feet, 300 feet north; 35 feet, 200 feet north, and 22 feet, 100 feet north. From a point approximately 400 yards north of the intersection there are no obstructions to the view between said highway and the railroad track, the country being flat and rolling. Four hundred twenty-seven feet north of said intersection, at the beginning of the upward slope of the west shoulder of the highway, was the usual standard Kansas state highway sign denoting a highway-railroad intersection ahead — a metal disc, divided into quadrants by intersecting lines with the letter "R" in each of the upper quadrants. On either side of the highway was the usual highway drainage ditch. The topography of the country as disclosed by the exhibits shows the surface of the highway and the railroad tracks elevated above the surface of the intervening land, north of the intersection. A view of the west side of the railroad roadbed, rails, etc., may be had from the highway as far (and farther) north of the intersection as the "R R" sign. Like observations to one proceeding south on the highway north of the intersection are available of the railroad roadbed and intervening land immediately south of the intersection. Actual measurements show the level of the railroad tracks to vary between 1.9 feet above the level of the highway 400 feet north of the intersection to .9 of a foot 100 feet north of the intersection. The cattle guards on the railroad north of the intersection, according to the testimony and exhibits, were approximately the length of two box cars, the tender and an engine plus 44 feet north of the center of the intersection. The railroad right of way was fenced; at the cattle guards with a plank or board "wing" fence extending west to the highway line and a like fence for several feet — the length of a plank — north along said line, and thence north with a wooden post and wire fence. Located at the beginning of the upward slope on the east shoulder of the highway and south of the intersection a distance of 60 feet, estimated was the usual railroad cross-arm crossing sign.

Plaintiff was approximately forty-seven years of age and had been a resident of the State of Kansas a number of years. He, his mother and two aunts were in his Pontiac sedan southbound on said highway from Ft. Scott, Kansas, to a...