Hencke v. St. Louis & H. R. Co.

• Decision Date: 12 June 1934
• Docket Number: No. 31514.,31514.
• Citation: 72 S.W.2d 798
• Court: Missouri Supreme Court
• Parties: HENCKE v. ST. LOUIS & H. R. CO.

72 S.W.2d 798

HENCKE v. ST. LOUIS & H. R. CO.

No. 31514.

Supreme Court of Missouri, Division No. 1.

June 12, 1934.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

Action by Werner Charles Hencke against the St. Louis & Hannibal Railroad Company. From an order granting plaintiff a new trial after verdict for defendant, defendant appeals.

Affirmed, and cause remanded.

Grover C. Huston, of Troy, John H. Haley, of Clayton, and J. D. Hostetter, of Bowling Green, for appellant.

Elgin T. Fuller and Mahan, Mahan & Fuller, all of Hannibal, for respondent.

ATWOOD, Judge.

This case falls to the writer on reassignment. It is an action for personal injuries alleged to have been sustained by plaintiff, Werner Charles Hencke, when an automobile then being driven by him was struck at a public road crossing by a train of defendant, St. Louis & Hannibal Railroad Company, carried some distance on the pilot of the engine, and then dragged or thrown therefrom.

The case was submitted under the humanitarian rule and the jury returned a verdict for defendant. Thereafter the trial court sustained plaintiff's motion for a new trial on the sole ground that instruction numbered 3, given at the request of defendant, was erroneous. Defendant has appealed from the order granting a new trial and here contends: First, that the trial court erred in refusing defendant's demurrer to the evidence; second, that the giving of defendant's requested instruction 3 was not error; and that the court erred in sustaining plaintiff's motion for a new trial because of alleged error in giving this instruction.

It appears from the evidence that about half past 10 o'clock on the morning of the collision in question plaintiff and a friend named Keppel were riding east in a Chevrolet coupé along a county dirt road which crossed defendant's railroad track at a flag station called Famous. At this point the railroad ran in a north and south direction over the public highway which extended east and west. For a quarter of a mile west of this crossing the public road extended over practically level land. There were, however, old ruts and mudholes in the road which made progress very difficult, and immediately next to the crossing there was an incline or elevation that emerged from a cut 4 or 5 feet in depth which began about 90 feet west of the crossing. Plaintiff's companion thus described the approach: "You couldn't see the railroad track all the way from the foot of the hill until you reach the crossing. There is about ninety feet from the railroad track looking on an angle, brush along there that stops the full view of the railroad track from about ninety feet back to about twenty-five feet of the track until you get up to the track you are passing through a deep cut probably four or five feet deep. When you get to within twenty or twenty-five feet of the crossing, I imagine, you could see a hundred feet up the track. You couldn't see a half a mile. I would say you couldn't see straight up the track until you got to within twelve or fifteen feet of the crossing."

It was a clear day in February and the sun was shining with a slight wind from the south. The sun had thawed the road, which was muddy and slick and had not been freshly broken, and plaintiff was compelled to travel in low and second speed over this quarter of a mile. He was sitting on the left side of the coupé and the windows were open. From the crossing the track extended north for a distance of 1,100 feet where it passed out of view from the crossing as it curved to the east around a hill. The railroad track was built on higher ground than the public road. The engineer sat on the right side of the cab, which was the side from which the automobile was approaching the crossing as the train was going south, and the train was proceeding at a speed of about thirty miles an hour.

At a point about 60 feet west of the crossing the road was so bad that plaintiff stopped a minute or two and debated whether or not he could get through. Both occupants of the automobile testified that while it was stopped they looked in both directions and saw no train, and that no whistle was blown and no bell was rung while they were approaching the crossing. After starting from this point plaintiff again looked in both directions but saw no train and heard no warning. While covering the remaining distance plaintiff traveled in low gear at the rate of three or four miles an hour and the condition of the road was such as to require his undivided attention. He did not again look up the track until the front wheels of his automobile were over the west rail, when he heard a shrieking whistle and saw defendant's engine 50 or 60 feet north of the crossing. He immediately stepped on the accelerator, but the pilot of the engine struck his automobile and carried it south down the track for a distance of about 167 feet to a cattle chute, where it was dragged off and thrown to the west of the track. The train was stopped south of the chute and plaintiff was found beneath the...