Haton v. Illinois Cent. R. Co.

• Decision Date: 16 November 1934
• Docket Number: 32086
• Citation: 76 S.W.2d 127,335 Mo. 1186
• Parties: Henry Everett Haton, Appellant, v. Illinois Central Railroad Company, a Corporation
• Court: Missouri Supreme Court

76 S.W.2d 127

335 Mo. 1186

Henry Everett Haton, Appellant, v. Illinois Central Railroad Company, a Corporation

No. 32086

Supreme Court of Missouri

November 16, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Affirmed.

F A. Foster, Strubinger & Strubinger and Allen, Moser & Marsalek for appellant.

(1) The court's action in giving plaintiff's Instruction 1 was proper, and consequently the court erred in granting the defendant a new trial because of the giving of said instruction. (a) Plaintiff's Instruction 1 predicates defendant's liability upon a finding by the jury that the automobile was dangerously near to and was going upon the track; the actual or constructive knowledge of said fact by defendant's employees; that they then caused the cars to be kicked and to run uncontrolled toward the crossing, and that their conduct in so doing constituted negligence which was the direct cause of the collision and plaintiff's injuries. Said instruction is within the issues, is sustained by substantial evidence, and is a correct application of the law to the facts hypothesized. We submit that the learned trial judge committed no error in giving said instruction. Kennayde v. Railroad Co., 45 Mo. 255; O'Connor v. Railroad Co., 94 Mo. 150; Baker v. Railroad Co., 147 Mo. 140; Stevens v. Railroad Co., 67 Mo.App. 356; Illinois Cent. Railroad Co. v Hammer, 72 Ill. 347; Chicago Junction Railroad Co. v. McGrath, 203 Ill. 511, 68 N.E. 71; Ill. Central Railroad Co. v. Baches, 55 Ill. 379; Gills v. Railroad Co., 342 Ill. 455, 174 N.E. 523; Chicago, A. & St. L. Railroad Co. v. Gomes, 46 Ill.App. 255; Kentucky Cent. Railroad Co. v. Smith, 93 Ky. 449, 20 S.W. 392; Ferguson v. Railroad Co., 63 Wis. 145, 23 N.W. 123; Alabama, etc., Railroad Co. v. Summers, 68 Miss. 566, 10 So. 63; Brown v. Railroad Co., 32 N.Y. 597, 88 Am. Dec. 353; French v. Railroad Co., 116 Mass. 537; Wilson v. Railroad Co., 142 N.C. 333, 55 S.E. 257; Delaware, etc., Railroad Co. v. Converse, 139 U.S. 469, 35 L.Ed. 213. (b) The plaintiff was not a trespasser on the defendant's tracks. His right to pursue his course along the public highway, and over the tracks, and defendant's right to operate its cars along its track, and over the highway, were equal. Kennayde v. Railroad Co., 45 Mo. 262; O'Connor v. Railroad Co., 94 Mo. 155; Baker v. Railroad Co., 147 Mo. 155; Torrance v. Pryor, 210 S.W. 431; Sample v. Railroad Co., 233 Ill. 564, 84 N.E. 643; Maguire v. Railroad Co., 120 Ill.App. 111; Rowden v. Railroad Co., 159 Ill.App. 203. (c) While the evidence shows and the instruction requires a finding that defendant's employees actually saw the automobile in dangerous proximity to and upon the track, such evidence and finding were not essential to defendant's liability. Defendant's employees were under a legal duty to look out for persons and vehicles upon the highway before kicking cars over the crossing and they are held by law to have seen what they could have seen. Milward v. Railroad Co., 207 Mo.App. 354; Murrell v. Railroad Co., 279 Mo. 111; Ellis v. Met. St. Ry. Co., 234 Mo. 673.

Watts & Gentry for respondent; Charles A. Helsell of counsel.

(1) Instruction 1, given at the request of plaintiff, is erroneous for the following reasons: (a) Because it assumes that kicking cars across a street crossing is negligent, regardless of the attendant circumstances. This is not, and never has been, the law. It is not negligence per se to kick railroad cars over a street crossing, but at most, is a question for the jury. 3 Elliott on Railroads (3 Ed.), pp. 533-534; Chicago Term. Transfer Co. v. Helbreg, 124 Ill.App. 113; Whitney v. Railroad Co., 69 Me. 208; Kennedy v. Ry. Co., 68 Iowa 559, 27 N.W. 743; Northern Pac. Railroad Co. v. Holmes, 14 P. 688; Mehegan v. Railroad Co., 125 N.Y. 768, 46 N.Y.S. 497, 28 N.E. 936; Schlimgen v. Railroad Co., 90 Wis. 186, 62 N.W. 1054; Rowart v. Ry. Co., 175 Wis. 286, 185 N.Y. 189; Ormsbee v. Railroad Co., 14 R. I. 102. (b) Assuming for the sake of argument that the mere kicking of the cars over the crossing could constitute negligence, it certainly was a question for the jury to determine; whereas this instruction assumes it to be negligence; and is in practical effect a peremptory instruction to find for plaintiff, regardless of any of the circumstances attending the movement of the cars. (c) and (d) Nor can it be said that the omissions in Instruction 1 are cured by Instruction 2 given at plaintiff's request, or Instruction 5 given at defendant's request, for the reason that Instruction 1 is directly in conflict with them. Kuhlman v. W., L. & Transit Co., 271 S.W. 797; Mansur-Tebbets Implement Co. v. Ritchie, 143 Mo. 613; State ex rel. v. Ellison, 270 Mo. 656, 195 S.W. 725; McCune v. Daniels, 251 S.W. 461; Carroll v. Young, 267 S.W. 436; Bellows v. Travelers Ins. Co., 203 S.W. 985; Schubert v. American Press, 19 S.W.2d 475; Rissmiller v. Ry. Co., 187 S.W. 574; State ex rel. v. Ellison, 199 S.W. 988, 272 Mo. 571; Telaneous v. Simpson, 12 S.W.2d 922. (e) Instruction 1 is self-contradictory in that it hypothesizes a finding by the jury that plaintiff's automobile was both dangerously near and going upon the track, and that it was actually upon the track upon which the train stood. In addition to being contradictory, there is no evidence whatever in the record to support either of these hypotheses. (f) The instruction is too general in that it permits the jury to find for plaintiff if defendant was negligent in any manner, not limiting the jury's findings to the negligence pleaded in the petition. Ward v. Poplar Bluff Ice & Fuel Co., 264 S.W. 80; Allen v. Lbr. Co., 190 Mo.App. 406, 177 S.W. 755; Smith v. Anderson Motor Service Co., 273 S.W. 745; Jackels v. K. C. Rep. Co., 231 S.W. 1025; West v. Holliday, 196 S.W. 403; Eastridge v. Lbr. Co., 188 Mo.App. 448; Feldewerth v. Railroad Co., 181 Mo.App. 640; Allen v. Railroad Co., 294 S.W. 87; Owens v. McCleary, 281 S.W. 685; Munoz v. A. C. & F. Co., 296 S.W. 228.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Action for damages for personal injuries sustained by plaintiff on November 15, 1929, in a collision between an automobile which he was driving and railroad cars "kicked" by one of defendant's locomotive engines at a grade crossing over defendant's tracks within the corporate limits of the city of East St. Louis Illinois. Upon a trial in the Circuit Court of the City of St. Louis plaintiff had a verdict for damages in the sum of $ 20,000. Defendant's motion for a new trial was sustained and a new trial ordered on the ground that the court erred in giving plaintiff's instruction numbered one, from which order plaintiff has appealed. An examination and understanding of the instruction, the giving of which the trial court specified as the ground of its order granting a new trial, requires a statement of the facts developed by the evidence. Defendant's railroad tracks run north and south and Chartrand Avenue, a much traveled public street of the city of East St. Louis, is located a short distance east of and runs north and south parallel with the railroad tracks to the point where it crosses at grade in a southwestwardly direction over defendant's tracks. The street passes over three tracks. The east track is the main line track, the middle track is referred to as the thoroughfare track and the west track, at which the collision occurred, as the switch lead. There is a space of twelve feet between the tracks so that it is at least thirty-four feet from the east rail of the east or first track to the east rail of the third or west track. The crossing is made of blocks and planking and is thirty feet in width north and south. There is a red electric signal light on each side of the crossing referred to as a "flashing light signal." There is evidence on the part of defendant that there was also an automatic gong on the west side of the crossing. Plaintiff's evidence is that if there was a gong on the west side of the crossing it was not sounding at the time of or immediately before the collision and that a gong had not been in operation at that point for a long time prior to the date of the collision. As to the "flashing light signal" plaintiff's evidence was that the red light flashed continuously as a railroad crossing warning while defendant's evidence was that the light signals flashed and the gong rang only when trains or cars were standing or moving on one of the three tracks at the crossing or within a certain distance from either side thereof and were warnings of the close proximity of a train or cars to the crossing. According to defendant's evidence a train or car, moving or standing, on either of the tracks, within a certain distance of the crossing would automatically complete an electric circuit and cause the signal lights to "flash" and the gong to ring. Defendant's switch yard was a short distance north of the crossing and in carrying on switching operations it was often necessary to move cuts of cars over this crossing and it seems that at times as convenience might suggest and as the switching crew deemed expeditious to the switching operation then in progress a car or cars would be cut off from a train or cut of cars and "kicked" over the crossing as was done on this occasion.

Plaintiff resided at Falling Springs, Illinois, about eight miles south of East St. Louis. Shortly after two o'clock, Sunday afternoon September 15, 1929, accompanied by two companions Otto Swalls and Homer Daniels, plaintiff left East St. Louis intending to go to his home at Falling Springs. Plaintiff was driving his brother's automobile, a Dodge touring car. Swalls was in the front seat with plaintiff and Daniels alone in the back seat of the automobile. Plaintiff drove south...