Higgins v. Terminal R. Ass'n of St. Louis
| Decision Date | 10 November 1936 |
| Citation | 97 S.W.2d 892,231 Mo.App. 837 |
| Parties | ORVILLE F. HIGGINS, RESPONDENT, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, A CORPORATION, APPELLANT |
| Court | Missouri Court of Appeals |
Motion for Rehearing Overruled November 24, 1936.
Appeal from the Circuit Court of City of St. Louis.--Hon. Frank Landwehr, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
T. M Pierce, J. L. Howell and Walter N. Davis for appellant.
(1) Plaintiff failed to make a submissible case for the reasons following: (a) Even if defendant was negligent, which it was not, plaintiff's own negligence, in failing to get out of a dangerous situation, was the proximate cause of his injuries. L. & N. R. Co. v. Davis, 75 F.2d 849, l c. 851. (b) The abstract contained no evidence that defendant was guilty of any negligence whatsoever. Defendant's employee had the right to assume, after the warning and plaintiff's backing against the truck, that plaintiff had placed himself in a position of safety. Williams v. Terminal Railroad (Mo. Sup.), not yet reported. (2) Instruction No. 1 given and read to the jury at the instance and request of plaintiff is erroneous. It is predicated on the finding that defendant by the exercise of ordinary care could have seen plaintiff in a position of imminent peril in time thereafter by the exercise of ordinary care to have swerved the truck and prevented the accident. The abstract is without evidence that defendant's employee actually saw plaintiff in a position of peril. He could assume by plaintiff's actions that he was in a position of safety. Consequently the fact that he could have seen him is not an element of liability. (3) Instruction No. 2, given and read to the jury at the instance and request of the plaintiff is erroneous. The abstract is without evidence that plaintiff suffered a permanent injury. (4) Defendant offered instruction No. 8, found on pages 143 and 144 of abstract, which the court refused to give and read to the jury. It hypothesized a defense presented by defendant's evidence. Clark v. Atchison T. & S. F. R. Co., 6 S.W.2d 954.
J. Edward Gragg and Robert L. Aronson for respondent.
(1) The demurrers to the evidence were properly overruled. (a) The very statement of the facts of this occurrence is conclusive of negligence on the part of defendant. Silverman v. City of New York, 114 N.Y.S. 59. (b) Contributory negligence is not a defense in a case submitted solely upon the humanitarian doctrine. Housley v. Berberich Delivery, 87 S.W.2d 209; Burke v. Laurie, 61 S.W.2d 268; Smith v. Kansas City Public Service Company, 328 Mo. 979, 43 S.W.2d 548; Grubbs v. Kansas City Public Service Company, 329 Mo. 390, 45 S.W.2d 71. (c) One is not chargeable with contributory negligence, if confronted with an emergency created by the negligence of the defendant, merely because he adopts a course of action which does not save him from injury. Clark v. Atchison & Eastern Bridge Company, 24 S.W.2d 143; Mayne v. May-Stern Furniture Company et al., 21 S.W.2d 211; Carter v. Wells, 40 S.W.2d 725; Menard v. Goltra, 40 S.W.2d 1053. (2) Plaintiff's instruction No. 1 was proper for the reasons given in connection with the discussion of the demurrers to the evidence. (3) Plaintiff's instruction No. 2 was not prejudicially erroneous. (a) The evidence supports the submission of the question of permanent injuries. (b) Since there is no claim of excessiveness of the verdict, no error in the instruction on the measure of damages could have been prejudicial to defendant, and, therefore, no error in such instruction could possibly be ground for reversal. Compare Williams v. Hyman-Michaels Co., 277 S.W. 593; Rath v. Knight, 55 S.W.2d 682. (4) It was not reversible error for the trial court to refuse to give defendant's requested instruction No. 8. (a) The refusal of instructions which are merely the converse of given instructions is not reversible error. Doody v. California Woolen Mills Co., 216 S.W. 531; Best v. Atchison, T. & S. F. Ry. Co., 76 S.W.2d 442; Humphreys v. Chicago, M. St. P. & P. R. Co., 83 S.W.2d 586. (b) The instruction was defective in itself, in its application to the particular facts of the case at bar.
--This is an action for damages for personal injuries alleged to have been sustained by plaintiff while at the Union Station in St. Louis. The suit was instituted in the Circuit Court of the City of St. Louis on August 24, 1934.
Plaintiff's version of the facts were substantially as follows:
That plaintiff was a salesman for the Ohio Salt Company and worked in the city of St. Louis; that a Mr. Grierson, living in Columbus, Ohio, a representative of the Salt Company, was in St. Louis on June 1, 1934; that Mr. Grierson, desiring to take a Pennsylvania train home, was accompanied by plaintiff to the Union Station and reached there shortly before six o'clock P. M. of that day; that Grierson employed a red cap to carry his baggage for him; that the railroad tracks under the train shed run north and south and between the various tracks there is a concrete platform which plaintiff judged to be about seventeen feet wide; that the coach which Grierson desired to take was near the front, or south end of the train shed; that Grierson and plaintiff went through the gate and came to the steps of the coach of the Pennsylvania train; that this was just a few minutes before the time for the departure of the Pennsylvania train; that this train, as then located, was to the east of this platform and on the track immediately west of the platform was another passenger train, said to be the Missouri Pacific train; that opposite the steps of the coach which Grierson desired to board was an empty truck alongside of the Missouri Pacific train, against which truck plaintiff leaned, talking to Grierson, who was to his left and north of plaintiff practically a few inches from the north end of the empty truck; that they were there talking when suddenly a voice hollered "Watch out," when plaintiff then observed a truck twenty-five or thirty feet to the north coming south; that Grierson jumped around the north end of the stationary truck and plaintiff backed up against the truck as far as he could; that while thus standing and with his right foot extending a few inches ahead of his left foot the wheel of the truck ran over his right foot, injuring his big toe and the two next to it and breaking the bones in the three toes; that the truck did not swerve one way or the other; that it went by in a general straight line; that the empty truck standing next to and alongside the Missouri Pacific train was three or four inches away from that train; that the bed of the truck was approximately three and one-half or four feet wide and that ten or twelve feet intervened between this empty truck and the Pennsylvania train standing on the east side of the platform and that the way was clear; that when plaintiff heard the voice halloo "Watch out," he looked to the north and saw a man in a sort of a "dog trot" coming up fast with this truck; that it was heavily loaded with baggage, grips, suitcases, etc., and looked to be fifteen or twenty feet long; that the accident happened exactly three minutes after six.
On cross-examination the plaintiff stated that he did not intend to become a passenger on the train, but was merely there accompanying Grierson to see him off and not necessarily to discuss business, but for pleasure or convenience; that after he heard him halloo he saw that the man with the truck was twenty-five or thirty feet to the north of him and saw the truck coming, but he did not have time to go to the south end of the stationary truck because the man was coming with the truck so fast, that is, in a "dog trot;" that he (plaintiff) was a young man; that the truck the man was pulling had two small wheels on each end and big wheels in the middle of the truck; that the truck scraped him along the leg a little, but did not hurt him thereby, although he got some grease on his pants; that it was about three weeks before he could put his foot on the ground at all and had to walk with a cane for three more weeks; that he was able to walk normally in about two months; that his foot hurt him after a day of walking and appeared tired and sore and had a dull ache in it when weather changed; that he was away from work about six weeks and that was all the time he lost; that he lost no salary and did not pay any money for medical or hospital attention; that the big toe and the two next to it were fractured; that they were the only injuries received; that there was still tenderness present on pressure or palpitation; that as a salesman he was compelled to do much walking; that the truck pushed by the man who hollered "Watch out," was the same truck which ran over his foot and it did not swerve in either direction, but ran in a general straight line from the time he first saw it; that he did not have time to go to the south end of the stationary truck after his attention was directed to the truck coming towards him; that he had no idea that the man was going to run the truck over his foot so he backed up against the stationary truck as far as he could; that his right foot extended about two or three inches beyond his left foot; that he did not have time to jump up on the stationary truck.
The version of this incident given by the truckman was substantially as follows:
That at the time in question he was a mail handler and hauled a load of mail from the Missouri Pacific train on track eight to the Pennsylvania train on track nine going south; that he noticed a couple of men standing there and hollered to them to look out for themselves; that when he asked the...
To continue reading
Request your trial