Herring v. Franklin

• Decision Date: 12 November 1936
• Parties: Charles H. Herring, Jr., Appellant, v. Walter S. Franklin and Frank C. Nicodemus, Jr., Receivers of the Wabash Railway Company, a Corporation, et al
• Court: Missouri Supreme Court

98 S.W.2d 619

339 Mo. 571

Charles H. Herring, Jr., Appellant, v. Walter S. Franklin and Frank C. Nicodemus, Jr., Receivers of the Wabash Railway Company, a Corporation, et al

Supreme Court of Missouri

November 12, 1936

Appeal from Macon Circuit Court; Hon. V. L. Drain, Judge.

Affirmed.

Trusty & Pugh, Roy W. Rucker, A. D. Campbell and Guy Green Jr., for appellant.

(1) The court erred in refusing plaintiff's Instruction 1 authorizing a finding for the plaintiff because of the defendant's negligence in operating the train at an excessive speed and without giving due and timely warning because the evidence justified such a finding and plaintiff was not contributorily negligent. Herrell v. Frisco, 18 S.W.2d 481; Advance Transfer Co. v. Rock Island, 195 S.W. 566; Underwood v. Railroad Co., 168 S.W. 803; Doyle v. M. K. & T., 185 S.W. 1175; R. S. 1929, sec. 4756; Hoelzel v. Rock Island, 85 S.W.2d 126; Unrein v. Okla. Hide Co., 224 S.W. 926; O'Connor v. Mo. Pac. Ry. Co., 94 Mo. 150, 7 S.W. 106; Dempsey v. Horton, 84 S.W.2d 626; State ex rel. v. Trimble, 254 S.W. 846. (2) The court erred in refusing plaintiff's Instruction 2 authorizing a recovery for violation of the speed ordinance because the violation of the ordinance was admitted and the evidence showed it proximately caused the accident. Gratiot v. Mo. Pac. Ry. Co., 115 Mo. 450, 21 S.W. 1097; Unterlachner v. Wells, 296 S.W. 755; Hoelzel v. Rock Island, 85 S.W.2d 126; Lackey v. United Rys. Co., 231 S.W. 956; Rollinson v. Lusk, 217 S.W. 328; Ziegler v. United Rys., 220 S.W. 1016; Cunningham v. Railroad Co., 9 S.W.2d 166; O'Neill v. K. C. Ry. Co., 239 S.W. 879; Maloney v. United Rys., 167 S.W. 472; Nicholson v. Mo. Pac., 297 S.W. 996; Cox v. Reynolds, 18 S.W.2d 575. (3) The court erred in permitting Mr. Lacy to argue contributory negligence over the objection and exception of plaintiff's counsel. Johnson v. Santa Fe, 290 S.W. 465; Taylor v. Met. St. Ry., 165 S.W. 327; Rooker v. Railroad Co., 247 S.W. 1016; Chawkley v. Wabash, 297 S.W. 30; Stout v. K. C. Pub. Serv. Co., 17 S.W.2d 368; Stanton v. Jones, 19 S.W.2d 507; Bergfeld v. Dunham, 201 S.W. 640; Stubenhaver v. K. C. Ry. Co., 213 S.W. 144. (4) The court erred in permitting defendant's counsel to draw an unfavorable inference from the plaintiff's failure to produce Mr. Spencer and in arguing that Behring's statement constituted primary evidence. Courter v. Chase, 299 S.W. 622; Duncan v. City Ice, 25 S.W.2d 536; Atkinson v. United Rys. Co., 228 S.W. 483; Murphy v. Tumbrink, 25 S.W.2d 133; Rothschild v. Barck, 26 S.W.2d 760; State ex rel. v. Trimble, 44 S.W.2d 57; State ex rel. v. Cox, 46 S.W.2d 849; Cooper v. Met. St. Ry. Co., 94 S.W.2d 1070; Elliot v. Grand Lodge, 95 S.W.2d 829.

Homer Hall and Lacy & Edwards for respondents.

(1) The plaintiff was guilty of contributory negligence in going upon the track without looking as a matter of law. The testimony was amply sufficient to require the submission of the question of contributory negligence to the jury. Instruction 1 for plaintiff was properly refused. Lenix v. Ry. Co., 76 Mo. 86; Stepp v. Ry. Co., 85 Mo. 229; Drain v. Ry. Co., 86 Mo. 574; Daniel v. Pryor, 227 S.W. 102; Farris v. Railroad Co., 167 Mo.App. 392, 151 S.W. 979; Whitesides v. Railroad Co., 186 Mo.App. 608, 172 S.W. 467; Sandry v. Hines, 226 S.W. 646; State ex rel. Hines v. Bland, 237 S.W. 1018; Flannagan v. Ry. Co., 297 S.W. 463; Bell v. Railroad Co., 72 Mo. 50; Payne v. Railroad Co., 136 Mo. 562, 38 S.W. 308; Schmidt v. Mo. Pac., 191 Mo. 215, 90 S.W. 136; Monroe v. Railroad Co., 297 Mo. 633; Camey v. Ry. Co., 323 Mo. 470; Lane v. Railroad Co., 132 Mo. 4, 33 S.W. 645; R. S. 1929, sec. 7775; Alexander v. Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023; Sullivan v. Railroad Co., 317 Mo. 996; Knight v. Ry. Co., 85 S.W.2d 392. (2) Instruction 2 for plaintiff was properly refused. It ignored the defense of contributory negligence pleaded and proven by defendants. Holtcamp v. Railroad Co., 208 Mo.App. 316, 234 S.W. 1054; Cunningham v. Ry. Co., 9 S.W.2d 166; Kelsey v. Mo. Pac., 129 Mo. 362. Person operating automobiles required to use highest degree of care. R. S. 1929, sec. 7775. (3) The mere statement in argument, by defense counsel, that "the only conclusion is that they never looked," meaning the plaintiff and his men in the truck never looked, entirely disconnected from its context is not shown to have been improper or prejudicial. Phillips v. Am. Car & Foundry Co., 287 S.W. 811; Norris v. Whyte, 158 Mo. 31. (4) The argument of defense counsel calling attention of the jury to the fact that plaintiff had not called Spencer, the employee of Behring and the plaintiff, and who was riding in the truck with them, as a witness was proper and within the record. Beck v. Wurst Coal & Hauling Co., 293 S.W. 449; McCord v. Schaff, 279 Mo. 558, 216 S.W. 321; Wilson v. Peppard Seed Co., 243 S.W. 390; Burns v. McDonald Mfg. Co., 213 Mo.App. 640; State ex rel. Ry. Co. v. Cox, 329 Mo. 292; Jaeger v. Ry. Co., 53 S.W.2d 1087; Furestenberg v. Kram, 249 S.W. 146; City of Kennett v. Construction Co., 273 Mo. 279; State ex rel. Myer v. Daues, 315 Mo. 186.

OPINION

PER CURIAM

Action to recover damages for personal injuries. Charles H. Herring, Jr., was riding in a truck being driven by his employee, C. H. Behring, when the truck was struck by defendant's passenger train at the intersection of Polk Street and the defendant's railroad tracks in the city of Brunswick, Missouri. Herring brought this suit to recover damages for the injuries he received.

The petition alleged negligence on the part of the defendant in violating the speed ordinance of the city of Brunswick, in failing to give sufficient warning of the train's approach, and in failing to sound the statutory warnings. It further charged a violation of the humanitarian rule.

The answer consisted of a general denial, a plea of contributory negligence and an assertion that the speed ordinance was unfair, discriminatory, an unreasonable interference with interstate commerce, and therefore unconstitutional.

Plaintiff requested instructions, referred to as 1 and 2, submitting the assignments of primary negligence above set forth. These instructions were refused. The court however gave plaintiff's instruction submitting the case on the humanitarian doctrine. The jury returned a verdict for the defendant. Judgment was entered in accordance therewith. This appeal is from that judgment.

Error is assigned to the action of the trial court in refusing instructions 1 and 2 requested by plaintiff and to certain parts of the argument to the jury by defendant's counsel.

First, the assignment relative to the refusal of the instructions. Both instructions were complete and authorized a verdict for plaintiff upon a finding of the primary negligence charged. There was sufficient evidence in support of the assignments of primary negligence, therefore for present purposes we may assume that these instructions should have been given unless plaintiff was guilty of such contributory negligence as would bar his recovery for defendant's primary negligence.

The testimony most favorable to plaintiff's theory that he was not guilty of contributory negligence discloses the following facts:

Plaintiff owned the truck. Behring was driving it. Behring was employed by plaintiff. Under the terms of the employment Behring was to share the profits from the operation of the truck. Behring, plaintiff and a man named Spencer were riding in the truck. All three were sitting on the one seat, -- Spencer in the center, plaintiff on the right or west side, and Behring on the left, driving. Polk Street runs north and south. The truck proceeded south on that street until it was within twenty-five or thirty feet of the north rail of the north track where it stopped and plaintiff looked to the west. He could see no train approaching from that direction, although he could see the track for approximately six or seven hundred feet. The driver changed gears and started up at a speed of five or six miles per hour. Approximately two hundred and fifty feet east of the crossing the track curved. Beyond the curve the view from the crossing was obstructed. Neither plaintiff nor the other occupants of the truck looked to the west after the truck started, all of them giving their entire attention to looking to the east. From the point where the truck stopped to the track the road was on a slight incline. After it started forward the truck proceeded at a speed of approximately five or six miles per hour until the front end of the truck was approximately fifteen feet south of the south rail of the south track and the rear end of the truck was about five feet north of the south rail of the south track where it was struck by defendant's eastbound passenger train. There were two tracks at this crossing, the south, or main line, being ten or twelve feet south of the "High Line," or north track. Plaintiff was familiar with the crossing and the speed of trains at this point. He stated the speed was ordinarily from fifteen to twenty miles per hour. He could not judge the speed of the train which hit him as he did not see it until it was "on top" of them. Other witnesses for plaintiff fixed the speed as high as fifty or sixty miles per hour. The truck was loaded with corn and at the speed it was being driven as it approached the crossing, could have been stopped almost instantly. The weather was clear and the time of the accident eleven fifteen A. M.

Plaintiff's theory is that having once looked for the train and not seeing it, he was then entitled to assume that defendant would operate it in a careful manner both as to speed and proper warnings and in compliance with the local speed ordinance, and that he cannot be guilty of contributory negligence as...