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

• Decision Date: 12 June 1934
• Docket Number: 31514
• Citation: 72 S.W.2d 798,335 Mo. 393
• Parties: Werner Charles Hencke v. St. Louis & Hannibal Railroad Company, Appellant
• Court: Missouri Supreme Court

72 S.W.2d 798

335 Mo. 393

Werner Charles Hencke v. St. Louis & Hannibal Railroad Company, Appellant

No. 31514

Supreme Court of Missouri

June 12, 1934

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

Affirmed and remanded.

Grover C. Huston, John H. Haley and J. D. Hostetter for appellant.

(1) Defendant's demurrer to the evidence should have been given. Where plaintiff's contributory negligence is the direct and proximate cause of the collision and consequent injury the humanitarian rule does not apply. Rollison v Railroad, 252 Mo. 525; Goodson v. Schwandt, 300 S.W. 795, 318 Mo. 669; Hayden v. Railroad, 124 Mo 572; Kelsey v. Railroad, 129 Mo. 362; Sorrell v. Payne, 247 S.W. 462; Sullivan v. Railroad Co., 297 S.W. 945; Schaub v. Railroad Co., 113 S.W. 1163, 133 Mo.App. 444; Tannehill v. Ry. Co., 213 S.W. 818; Porter v. Ry. Co., 97 S.W. 880, 199 Mo. 82; McNeil v. Mo. Pac., 182 S.W. 762; State ex rel. Hines v. Bland, 237 S.W. 1018; Hall v. Railroad Co., 240 S.W. 175; Nunn v. Railroad Co., 258 S.W. 20; Evans v. Railroad Co., 233 S.W. 397; Morrow v. Hines, 233 S.W. 493; Winkler v. United Rys. Co., 229 S.W. 229; Alexander v. Ry. Co., 233 S.W. 44; Lyles v. Hines, 224 S.W. 841; Langley v. Hines, 227 S.W. 877; Daniel v. Pryor, 227 S.W. 102; Carroll v. Ry. Co., 229 S.W. 234; Gersman v. Ry. Co., 229 S.W. 167; Bahlert v. Ry. Co., 185 N.W. 515; State ex rel. v. Bland, 237 S.W. 1018; Holtcamp v. Railroad Co., 234 S.W. 1054; Peters v. Lusk, 206 S.W. 250; Hall v. Ry. Co., 240 S.W. 175; Freie v. Ry. Co., 241 S.W. 671; Grear v. Harvey, 195 Mo.App. 811, 177 S.W. 780; Friedman v. United Rys. Co., 238 S.W. 1074; Dempsey v. City Light & Tr. Co., 240 S.W. 1093; De Wolf v. Stix-Baer, 240 S.W. 1094; Wills v. Sullivan, 242 S.W. 183; Bieren v. United Rys. Co., 244 S.W. 94; Henderson v. Ry. Co., 248 S.W. 987; Monroe v. Railroad Co., 249 S.W. 644; Dickey v. Railroad Co., 251 S.W. 112; Nichols v. Railroad Co., 250 S.W. 627; Holwerson v. Ry. Co., 157 Mo. 227; Early v. Ry. Co., 55 S.W.2d 716; Oxford v. Railroad Co., 52 S.W.2d 983; Sevedge v. Railroad Co., 284 S.W.2d 284; Rowe v. Railroad Co., 41 S.W.2d 631. The burden is on the plaintiff to prove his case comes under the humanitarian rule. Underwood v. Ry. Co., 168 S.W. 803; Pennell v. Railroad Co., 134 S.W. 114; Beal v. Railroad Co., 256 S.W. 733. (2) Defendant's Instruction 3 is a correct declaration of law. Reardon v. Ry. Co., 114 Mo. 384; Shupp v. Railroad Co., 166 Mo.App. 597; O'Donnell v. Ry. Co., 7 Mo.App. 190; Maloy v. Ry. Co., 84 Mo. 270; Veatch v. Ry. Co., 145 Mo.App. 232; Pope v. Ry. Co., 242 Mo. 232; Rine v. Railroad Co., 88 Mo. 392; Bell v. Railroad Co., 72 Mo. 50; Jackson v. Railroad Co., 157 Mo. 621; Newell v. Dickinson, 233 S.W. 72, 207 Mo.App. 369; Scoville v. Hannibal & St. J. Co., 81 Mo. 434.

Elgin T. Fuller and Mahan, Mahan & Fuller for respondent.

(1) The evidence in the case clearly established a case for the jury under the humanitarian doctrine. There was no error in the court refusing defendant's demurrer. Ellis v. Met. St. Ry. Co., 234 Mo. 657; Titus v. Delano, 210 S.W. 44; Fearons v. Railroad, 180 Mo. 220; Knorpp v. Wagner, 195 Mo. 662; Dutcher v. Railroad, 241 Mo. 156; Murphy v. Railroad, 228 Mo. 62; White v. Railroad, 202 Mo. 563; Zumwalt v. C. & A. Railroad Co., 266 S.W. 724; Smith v. Railroad Co., 129 Mo.App. 413. (2) Defendant's Instruction 3 is erroneous and the court properly sustained plaintiff's motion for new trial on the ground of having given said instruction. Lewis v. Kansas City Public Serv. Co., 17 S.W.2d 361; Moran v. C. B. & Q., 255 S.W. 335; Maginnis v. Railroad Co., 268 Mo. 679; Smith v. Ry. Co., 321 Mo. 110; Ellis v. Met. St. Ry. Co., 234 Mo. 680; Ganz v. Met. St. Ry. Co., 220 S.W. 497; Hoodenpyle v. Wells, 10 S.W.2d 332; Larkin v. Wells, 278 S.W. 1088; Koontz v. Wabash, 253 S.W. 415; Rashall v. Ry. Co., 249 Mo. 509, 155 S.W. 426; Banks v. Morris, 257 S.W. 482.

OPINION

Atwood, P. J.

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 ten o'clock on the morning of the collision in question plaintiff and a friend named Keppel were riding east in a Chevrolet coupe 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 four or five feet in depth which began about ninety 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 coupe and the windows were open. From the crossing the track extended north for a distance of 1100 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 sixty 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 fifty or sixty 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 automobile wreckage in a badly injured condition.

The engineer driving defendant's train first testified that when he saw the automobile it was six or eight feet from the track. Later, however, he said that he saw it coming farther back but did not give a warning whistle then nor did he place his hand on the emergency brake but kept it on the throttle, and when the automobile got within six or eight feet of the crossing he then sounded the whistle and applied the emergency brake. The fireman on defendant's train testified that the emergency whistle was blown when the engine was within forty feet of the crossing. There was testimony tending to show that defendant's engineer could have seen plaintiff's automobile at all times after the train came around the hill.

The train consisted of an engine, tender, tank car and one combination passenger and baggage coach. The engine was of the standard 18 Baldwin type, and had six drive wheels. The entire train was equipped with air brakes. There was testimony that this train running thirty miles an hour under conditions then existing could be stopped in case of an emergency within fifty-five or sixty feet, and plaintiff testified that when driving his automobile at a speed of three or four miles an hour he could stop it within one foot.

Regarding the evidence in the light most favorable to ...