Gwaltney v. Ry. Co.

• Decision Date: 20 August 1936
• Docket Number: No. 33657.,33657.
• Citation: 96 S.W.2d 357
• Parties: T.N. GWALTNEY v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

96 S.W.2d 357

T.N. GWALTNEY v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.

No. 33657.

Supreme Court of Missouri.

Division Two, August 20, 1936.

Appeal from Newton Circuit Court. — Hon. Emory E. Smith, Judge.

REVERSED AND REMANDED (with directions).

Cyrus Crane, Winston H. Woodson, James F. Walsh Phil H. Graves and Garry D. Long for appellant.

(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence offered at the close of all the evidence and marked J, and further erred in submitting the case to the jury for the following reasons: (a) The evidence is insufficient to prove that defendant was negligent in that there was no substantial evidence to prove that the defendant's engineer could, after he saw plaintiff's automobile on the track, have, with safety to the equipment and passengers on said train, stopped said train in time to have avoided the collision. Oklahoma Ry. Co. v. Overton, 12 Pac. (2d) 539. However, assuming arguendo that defendant was negligent, we submit that the plaintiff did not make a case for the following reasons: (b) Plaintiff's negligence was contemporaneous or concurrent with defendant's negligence. Mo., O. & G. Ry. Co. v. Lee, 73 Okla. 165, 175 Pac. 372; A.T. & S.F. Railroad Co. v. Bratcher, 99 Okla. 74, 225 Pac. 943. (c) Plaintiff was not oblivious of his peril. Pittsburg County Ry. Co. v. Campbell, 236 Pac. 29, 110 Okla. 79; McManamee v. Ry. Co., 135 Mo. 449; Johnson v. Term. Railroad Assn., 320 Mo. 889; Eversole v. Railroad Co., 249 Mo. 523; Hill v. Cotton Oil Co., 202 Mo. App. 478; Stanley v. Helm, 223 S.W. 125, l.c. 127. (2) The court erred in overruling defendant's motion to discharge the jury on account of plaintiff referring to and calling the crossing "Dead Man's Crossing." (3) The court erred in overruling defendant's objection and in allowing plaintiff to testify that his family consisted of his wife and one baby, and further erred in overruling defendant's objection and motion to discharge the jury on account of plaintiff's counsel referring to plaintiff's wife and baby in his closing argument. Mahaney v. Ry. Co., 108 Mo. 200; Dayharsh v. Ry. Co., 103 Mo. 577; Williams v. Ry. Co., 123 Mo. 584; Hollenbeck v. Ry. Co., 141 Mo. 105; Ex parte Dick & Brothers Quincy Brewing Co. v. Ellison, 287 Mo. 154.

Frank Nesbitt and Gayle M. Pickens for respondent.

The court below was correct in refusing defendant's instruction in the nature of a demurrer to the evidence offered at the close of all the evidence and marked J and was correct in submitting the case to the jury. (a) The evidence was conflicting as to whether defendant's engineer saw plaintiff and his car on the crossing in a position from which plaintiff could not extricate himself, in such time that the engineer could have, with the exercise of ordinary care, stopped the train and averted injury; the evidence also was conflicting as to whether the engineer exercised reasonable diligence to stop his train and avert injury after discovering plaintiff in such position, therefore those questions were properly submitted to the jury. St. L. & S.F. Ry. Co. v. Bryan, 113 Okla. 39, 237 Pac. 613; Thrasher v. Ry. Co., 86 Okla. 88, 206 Pac. 212; Reed v. Scott, 50 Okla. 757, 151 Pac. 484; C., R.I. & P. Ry. Co. v. Owens, 78 Okla. 114, 189 Pac. 171; Lusk v. Haley, 75 Okla. 206, 181 Pac. 727; St. L. & S.F. Ry. Co. v. Miller, 117 Okla. 61, 245 Pac. 52; S.W. Mo. Ry. Co. v. Duncan, 139 Okla. 287, 282 Pac. 327; A., T. & S.F. Ry. Co. v. Baker, 21 Okla. 51, 95 Pac. 433; M., K. & T. Ry. Co. v. Smith, 97 Okla. 152, 223 Pac. 373; Muskogee, E.T. Co. v. Latty, 77 Okla. 156, 187 Pac. 491. (b) The evidence being such that reasonable men might differ as to whether plaintiff was guilty of contemporaneous or concurrent negligence in his efforts to save himself from injury, that question, if in the case, was properly submitted to the jury. Hodgins v. Jones, 64 S.W. (2d) 309; Sec. 23, Art. VI, Oklahoma Const.; Adrean v. Matthews, 104 Okla. 198, 230 Pac. 889; Cherry v. Arnwine, 126 Okla. 287, 259 Pac. 233; Padgett v. McKissick, 138 Okla. 63, 280 Pac. 409; Armstrong v. Tulsa, 102 Okla. 49, 226 Pac. 560; M.V. Ry. Co. v. Gibson, 94 Okla. 193, 221 Pac. 100; Texas County v. Robb, 88 Okla. 150, 212 Pac. 318; Schneider v. St. Joseph Ry., L., H., P. Co., 238 S.W. 468; State ex rel. v. Railroad Co., 226 S.W. 564; Krinard v. Westerman, 279 Mo. 680, 216 S.W. 938; Lanherts v. Otis El. Co., 256 S.W. 819. In a case properly involving the doctrine of last clear chance, plaintiff's contemporaneous or concurrent negligence does not defeat recovery under the Oklahoma law. St. L. & S.F. Ry. Co. v. Bryan, 113 Okla. 39, 237 Pac. 613; Muskogee E.T. Co. v. Tanner, 93 Okla. 284, 220 Pac. 655; St. L. & S.F. Ry. Co. v. Miller, 117 Okla. 60, 245 Pac. 52; Muskogee E.T. Co. v. Tice, 116 Okla. 24, 243 Pac. 175; S.W. Mo. Ry. Co. v. Duncan, 139 Okla. 287, 282 Pac. 327; M.V. Ry. Co. v. Neeley, 114 Okla. 277, 246 Pac. 859. (c) Although plaintiff was not oblivious to his peril he was in a position from which he could not extricate himself and is entitled to the benefit of the rules of "last clear chance" and "imminent peril." McGuire v. Railroad Co., 228 S.W. 541; Thurman v. Ry. Co., 291 S.W. 1037; Muskogee E.T. Co. v. Tanner, 93 Okla. 284, 220 Pac. 655; M., K. & T. Ry. Co. v. Smith, 97 Okla. 152, 223 Pac. 373; Bischoff v. Peoples Ry. Co., 25 S.W. 908; Kleiber v. Ry. Co., 107 Mo. 240, 17 S.W. 946; Stanley v. Helm, 204 Mo. App. 159, 223 S.W. 125; Norton v. Davis, 265 S.W. 107. Even if plaintiff was trying to save his own property from destruction, if he exercised ordinary care in so doing and was not guilty of contributory negligence that would jeopardize his life or limb, he would be entitled to recover if his injuries were due, proximately, to the carelessness or negligence of the defendant. 45 C.J. 968-969; Hill v. E. St. Louis Cotton Oil Co., 214 S.W. 419; Hall v. Huber, 61 Mo. App. 384; Slinkard v. Lamb Construction Co., 212 S.W. 61.

COOLEY, C.

Action for damages for personal injuries and damage to his automobile claimed by respondent to have been sustained by him because of appellant's negligence. We shall refer to the parties as plaintiff and defendant, respectively, as they were styled below. The petition is in one count. Plaintiff recovered judgment for $8000 on account of personal injuries and $50 for damage to his automobile and defendant appealed. The accident occurred in Oklahoma. The parties concede that the substantive law of Oklahoma governs and both invoke the law and decisions of that state.

The accident occurred about ten o'clock, P.M. April 26, 1932, at a road crossing between Stillwell and Barron Forks, Oklahoma, where a graveled public highway crosses, at grade, defendant's railroad track. The railroad there runs north and south. The highway north of the crossing parallels the railroad for a considerable distance. Approaching the crossing from the north the highway makes a turn approximately fifty feet west of the railroad track and goes thence east across the track. Conditions east of the crossing are not involved. South of the crossing the railroad track is straight for a distance of seven-tenths of a mile, with nothing to obstruct the view. At that distance from the crossing there is a curve in the track. There is a whistling post near the track a quarter of a mile, 1320 feet, south of the crossing. Plaintiff's automobile was struck on the crossing by a northbound train of defendant. The negligence charged is that the crossing was negligently maintained in that there was a shallow depression between the rails of the track, the rails and "guard planks" being two or three inches above the level of the roadway, which caused plaintiff's automobile to become stalled on the track, and negligence of defendant's servants in charge of the train in failing to stop after they discovered his perilous position, under what is called in Oklahoma the "last clear chance" doctrine. Defendant by its answer denied negligence on its part and pleaded contributory negligence on the part of plaintiff. The pleadings present the issue of last clear chance.

Plaintiff's evidence tended to show the following: He was going south toward Stillwell, alone, driving his Chevrolet car. He slowed down in making the above-mentioned turn west of the crossing and approached the crossing, going east, slowly. He testified that when the front wheels of his automobile passed over the west rail and guard plank of the railroad track and dropped into the depression between the rails his engine died and the automobile stopped; that he saw the headlight of defendant's engine, which was then about rounding the curve south of the crossing; that he tried for twenty or thirty seconds to start his car by means of the starter, which failed to work, and he then got out of his car, went behind it and for perhaps five to ten seconds tried to push it forward off the track; that, failing in such effort, and when the train was two or three hundred feet from him he turned and started to run away from his car; that he had run twenty to thirty feet when defendant's engine struck his automobile, knocking it off the track and against him; that he was thus knocked down, rendered unconscious, and received the injuries of which he complains. He first said he ran in a westerly direction from his car but later said in a northwesterly direction. He testified that the engineer blew the regular crossing whistle south of the whistling post and then, when "right in the neighborhood" of the whistling post began to blow the danger signal, — short, sharp blasts of the whistle, — and continued to sound said danger signal until the engine struck the automobile. A witness for plaintiff, one Coombs, who lived not very far east of the railroad track, southeast of the crossing and northeast of the whistling post, testified: "I heard what we call the crossing whistle blow, and...