Herrell v. Railroad Co.

• Decision Date: 29 March 1929
• Docket Number: No. 27128.,27128.
• Citation: 18 S.W.2d 481
• Parties: DAVID J. HERRELL v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

18 S.W.2d 481

DAVID J. HERRELL v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 27128.

Supreme Court of Missouri, Division No. 1.

March 29, 1929.

Appeal from Circuit Court of City of St. Louis — Hon. H.A. Rosskopf, Judge.

AFFIRMED.

E.T. Miller, A.P. Stewart and C.H. Skinker, Jr., for appellant.

(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendant should have been given. (a) The evidence was wholly insufficient to justify submission of the case to the jury on primary negligence in failure to give statutory signals, excessive speed, or failure to give warning. Sanguinette v. Railway, 196 Mo. 466; McGee v. Railroad, 214 Mo. 530; Burge v. Railroad, 244 Mo. 76. (b) Even though defendant were negligent in failing to give signals or warning, or in the speed of the train, plaintiff is barred from recovery by reason of his own contributory negligence. Plaintiff had the ability to see and hear. Where to look is to see, and to listen is to hear, one about to cross a railroad track is charged with seeing what could be seen and hearing what could be heard, and if injured, it will be presumed either that he did not look or listen, or that he did not heed what he saw or heard. The situation was such that if plaintiff had looked he could have seen the approaching train in time to warn the driver of the automobile by word or touch, and thus have avoided the collision at the crossing. His failure to see and to warn the driver was contributory negligence as a matter of law. Sullivan v. Railway (Mo.), 297 S.W. 945; Friedman v. Railways, 293 Mo. 235; Leapard v. Railways (Mo. App.), 214 S.W. 268. (c) Furthermore, plaintiff is barred from recovery by reason of the contributory negligence of his son, the driver of the automobile. That the driver was guilty of contributory negligence is beyond cavil. Railway v. Goodman, 48 U.S. Sup. Ct. Rep. 24; Maclay v. Railway (Mo. App.), 299 S.W. 626; Tannehill v. Railroad, 279 Mo. 158; Monroe v. Railroad, 297 Mo. 633; State ex rel. v. Bland (Mo.), 237 S.W. 1019; Kelsay v. Railway, 129 Mo. 362; Hayden v. Railway, 124 Mo. 566; Evans v. Railroad, 289 Mo. 493; Alexander v. Railway, 289 Mo. 599; Langley v. Hines, 207 Mo. App. 587; Freie v. Railway (Mo. App.), 241 S.W. 674; Lyter v. Hines (Mo. App.), 224 S.W. 843; Wallace v. Railway (Mo. App.), 257 S.W. 507; Hammack v. Payne (Mo. App.), 235 S.W. 467; Aldridge v. Railway (Mo. App.), 256 S.W. 93; Dickey v. Railway (Mo. App.), 251 S.W. 112; Dempsey v. Trac. Co. (Mo. App.), 240 S.W. 1093. The automobile was owned by plaintiff and was being driven by his nineteen-year-old son; and the negligence of the driver is imputable to plaintiff. Threadgill v. Railways, 279 Mo. 466; Tannehill v. Railroad, 279 Mo. 158. (d) The evidence was wholly insufficient to justify the submission of the case to the jury under the humanitarian doctrine. State ex rel. v. Bland, 313 Mo. 246; Rollison v. Railroad, 252 Mo. 525; Sullivan v. Railroad (Mo.), 271 S.W. 983; Burge v. Railroad, 244 Mo. 76; Tannehill v. Railroad, 279 Mo. 158; Sullivan v. Railway (Mo.), 297 S.W. 950; Hardman v. Railway (Mo. App.), 274 S.W. 493. (2) It was error to give Instruction 1 for plaintiffs. It is not supported by the evidence, since there was no proved negligence on the part of defendant in failing to give the statutory signals. Sanguinette v. Railway, 196 Mo. 489. (3) Instruction 3 given for plaintiff is erroneous. It is in the alternative and authorized a verdict for plaintiff if the jury found that the speed of the train was excessive, or if they found that defendant's agents omitted to sound any signal or warning. There was no evidence to justify submitting the question of excessive or negligent speed. McGee v. Railroad, 214 Mo. 541; Burge v. Railroad, 244 Mo. 102. (4) It was error to give Instruction 5 for plaintiff. Where to look was to see the approaching train, neither plaintiff nor the driver of the automobile had the right to rely exclusively on the presumption that defendant would observe reasonable care in the operation of the train. Railroad Co. v. Goodman, 48 U.S. Sup. Ct. Rep. 24; Newton v. Railroad, 152 Mo. App. 157; Green v. Railway, 192 Mo. 131; Dempsey v. Trac. Co., 240 S.W. 1093. (5) The evidence not authorizing the submission of the case under the humanitarian doctrine, plaintiff's contributory negligence was a complete defense. If there was substantial evidence sufficient to take the case to the jury on the issues of primary negligence, which defendant does not concede, then defendant was entitled to the benefit of the defense of plaintiff's contributory negligence, as hypothesized in its requested Instruction 11, and it was error to refuse this instruction. King v. Railroad, 211 Mo. 1; Dey v. Railways, 140 Mo. App. 461. (6) The evidence not authorizing the submission of the case under the humanitarian doctrine, contributory negligence of the driver of the automobile, which was imputable to plaintiff, was a complete defense. If there was substantial evidence sufficient to authorize submission to the jury of the issues of primary negligence, which defendant does not concede, then defendant was entitled to the benefit of the defense of contributory negligence of the driver, as hypothesized in its requested instructions 9 and 10, and it was error to refuse these instructions. King v. Railroad, 211 Mo. 1; Dey v. Railways, 140 Mo. App. 461; Threadgill v. Railways, 279 Mo. 466; Tannehill v. Railroad, 279 Mo. 170. (7) It was error to refuse defendant's requested instruction 12. Under the law and the evidence no rate of speed of the train was negligent. McGee v. Railroad, 214 Mo. 541; Burge v. Railroad, 244 Mo. 102.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The conduct of the plaintiff is not to be dogmatically stamped as negligent as a matter of law. Baker v. Railway Co., 122 Mo. 533; Petty v. Railroad, 88 Mo. 306; Dutton v. Railway Co., 292 S.W. 718; Jackson v. Railway Co., 189 S.W. (Mo.) 381; Kenney v. Railway Co., 105 Mo. 270; Work v. Railroad, 175 Mo. App. 111; State ex rel. v. Trimble, 254 S.W. (Mo.) 846; Allen v. Railroad, 313 Mo. 57. (2) The plaintiff having looked and listened when between forty and fifty feet of the tracks, and hearing no bell or whistle or other signal, or an approaching train, especially in view of the obstructions shown, had a right to be influenced by and to rely somewhat, at least, upon the absence of the statutory signals. Kennayde v. Railroad, 45 Mo. 255; McKerrall v. Railway Co., 257 S.W. 116; State ex rel. v. Trimble, 254 S.W. (Mo.) 850; Weigman v. Railroad, 223 Mo. 699. (3) On the facts the plaintiff wa{ not precluded a right to go to the jury on the humanitarian doctrine, but plaintiff, on the facts, made a case for the jury on that issue. Dutton v. Railway Assn., 292 S.W. 718; Hinzeman v. Railroad, 199 Mo. 65; Koontz v. Railway Co., 253 S.W. 416; McGinnis v. Railroad, 268 Mo. 667; Cowherd v. Mo. Pac. Ry. Co., 268 S.W. 107; Chapman v. Mo. Pac. Ry. Co., 269 S.W. 690; Looan v. Railroad, 300 Mo. 611; Chawkley v. Wabash Railroad, 297 S.W. (Mo.) 20; Allen v. Railroad, 313 Mo. 42; Ward v. Railroad, 311 Mo. 92. (4) Plaintiff was seen to be in danger when, from the movements of his car, it might reasonably be thought that he would continue to move forward until he got upon the track. Koontz v. Railway Co., 253 S.W. 413; Eckhard v. Traction Co., 190 Mo. 593; Lynch v. Railroad, 208 Mo. 34; McGinnis v. Railway Co., 268 Mo. 667; State ex rel. v. Reynolds, 289 Mo. 479; Ganz v. Railway Co., 220 S.W. (Mo.) 497. (5) While it is true that the general rule is that absent a statute prescribing the speed of trains, there is no necessary limit upon such speed over country crossing where the population is not congested and there are no conditions making the crossing peculiarly dangerous, and on the facts of the case at bar it was an issue for the jury whether the train was running at an excessive rate of speed. Ward v. Mo. Pac. Ry. Co., 311 Mo. 92; Toeneboehn v. Railroad, 298 S.W. (Mo.) 801; Hamilton v. Railroad, 270 S.W. 100; Heinzle v. Railway, 182 Mo. 528; Pier v. Transit Co., 197 Mo. 215; Klockenbrink v. Railway Co., 172 Mo. 690; Montague v. Railroad, 305 Mo. 297. (6) Even if a warning by bell or whistle could not have been effectively given after Ozee first saw the plaintiff's car, as he says, ten feet from the crossing (which we deny), yet if such disability was caused by prior negligent failure to keep a vigilant lookout, such disability would be no excuse or defense. Maher v. Railroad, 64 Mo. 627; Dunkman v. Railroad, 95 Mo. 232; Cowherd v. Railroad, 218 Mo. App. 694.

ATWOOD, P.J.

This is an action for damages for personal injuries sustained by respondent as the result of a crossing collision between an automobile, owned by him and driven by his minor son, and appellant's freight train.

The collision occurred at the crossing of an east-and-west public road over defendant's track at the village of Imperial, in Jefferson County, Missouri, about 10:30 o'clock on the morning of January 12, 1924. The automobile involved was a Ford coupe, which was owned by plaintiff and driven by his minor son, Roy Herrell, who was then about nineteen years of age. The train was northbound and the automobile was being driven eastwardly on the public road toward defendant's north-and-south main track. Plaintiff was sitting to the right of the driver, and the train approached from plaintiff's right. The train and the automobile met on the crossing, and the step on the left end of the pilot beam of the locomotive struck the running board on the right side of the automobile just back of the right front wheel. Neither plaintiff nor his son was injured in the collision at the crossing. The automobile, with the two men therein, was carried along by the locomotive until the automobile came in contact with a switch stand located on the left side of the track between seven hundred and eight...