Hillhouse v. Thompson

• Court: Missouri Supreme Court
• Writing for the Court: ELLISON; DALTON; HYDE, HOLLINGSWORTH and CONKLING, JJ., concur in result and in separate concurring opinion of DALTON; DALTON
• Citation: Hillhouse v. Thompson, 362 Mo. 700, 243 S.W.2d 531 (Mo. 1951)
• Decision Date: 12 November 1951
• Docket Number: No. 42720,42720
• Parties: HILLHOUSE v. THOMPSON.

Page 531

243 S.W.2d 531

362 Mo. 700

HILLHOUSE v. THOMPSON.

No. 42720.

Supreme Court of Missouri, en Banc.

Nov. 12, 1951.

Thomas J. Cole, St. Louis, E. A. Barbour, Jr., Springfield, for appellant.

Charles E. Ginn, Aurora, Jo B. Gardner, Monett, for respondent.

ELLISON, Chief Justice.

This case comes here on transfer from the Springfield Court of Appeals under Sec. 10, Art. V, Const.Mo.1946. The opinion of that court is reported in 240 S.W.2d 224, where the facts are more fully stated. The suit was for $15,000 damages under Secs. 537.080 and 537.090, R.S.1949, Laws

Mo.1945, p. 846, for the alleged wrongful death of the plaintiff-respondent administratrix's intestate, Rollie Everett Davidson on August 26, 1949, when the Ford pick-up truck which he was driving was struck by defendant-appellant's passenger train at a rural highway grade crossing in Lawrence County. On change of venue the cause was transferred to Christian County for trial. The jury returned a verdict for $6000.

The cause was reversed and remanded by the Springfield Court of Appeals on the ground that the plaintiff's action was based on both primary negligence and the humanitarian doctrine, and was 'questionable' on the facts, with a 'mass of testimony' introduced bearing only on the primary negligence theory, which was later abandoned and the case submitted to the jury on the humanitarian theory alone. The Court of Appeals held the foregoing extraneous testimony on primary negligence may have affected the jury's verdict; that respondent's main instruction No. 1 went beyond the evidence in requiring the jury to find both that appellant's engineer gave timely warning and slackened speed, since the respondent failed to make a case for the jury on the former; and that the only issue presented to the jury should have been whether the appellant's engineer could have seen the deceased in imminent peril in time to have averted the collision in the exercise of due care by slackening the speed of the train.

The cause is submitted here by both parties on their briefs filed in the Court of Appeals. Appellant-defendant's assignments of error complain of: the trial court's refusal to direct a verdict for it at the close of the plaintiff's case and the whole case; the admission of improper evidence; the giving of an improper instruction; insufficiency of the evidence; and excessiveness of the verdict. Since the case turns largely on the sufficiency of the evidence, the facts must be stated at some length.

The railroad track emerged from a cut on the north and ran south 52~ east downgrade, on a fill 5 to 7 feet high according to several witnesses. Paralleling its west side, and some 116 to 125 feet therefrom, was State Highway 39. A black top road about 14 feet wide, called High Street and leading to Aurora, branched off from State Highway 39 and ran upgrade practically due east across the railroad track and continued downgrade on the other side, making about the same angle of 52~ therewith and with Highway 39. Plaintiff-appellant's evidence showed the following.

Just preceding the casualty about 7:30 A.M. on August 26, 1949, a witness Durard Prater was driving west in his automobile on High Street toward the railroad track, with witnesses Mrs. Thurman and Mrs. Murphy as passengers. He testified that as he reached a point about 5 feet east of the track going 15 miles per hour he saw the train approaching from the north. It was distant 175-200 feet. The two women severally estimated the distance at 250-300 feet and 3 telegraph poles (528 feet). Prater slowed up but concluded he was too close to stop, and speeded west across the track ahead of the train. On the other side he met and passed the deceased's truck coming east up High Street toward the railroad track at about 12-15 miles per hour. The truck was about 15 feet long.

Prater thought the two vehicles passed each other about 20 feet west of the track. One of his two women passengers, Mrs. Murphy, said it was just after they had crossed the track. The other, Mrs. Thurman, said on direct examination it was half-way between the track and Highway 39--a westerly distance of about 60 feet from the track. On cross-examination she refused to estimate the distance. Prater and the two women thought the deceased had got across the track safely ahead of the train, and proceeded on to Mt. Vernon where they learned of the casualty.

With reference to warning signals, Prater testified he didn't hear the train whistle until after he had got across the track, and that was a low whistle. He didn't hear the bell ring or any engine noise as he approached the track, though he listened. Mrs. Thurman testified she didn't hear the whistle or bell or any train noise until after they had crossed the track and just about as they were passing deceased's truck, and then it was a faint whistle which she barely heard. She thought the train was running 15 or 20 miles per hour. Mrs. Murphy said Prater's automobile was fairly close to and on the east side of the track when she saw the train coming. She did not hear the locomotive whistle until immediately after they had crossed the track. It was a short whistle.

The fourth eyewitness, Pfetzner, was seated in a truck parked on Highway 39 at the foot of High Street, 168 feet west of the railroad track. He estimated the deceased's truck was moving east up High Street about 15 miles per hour, and that it passed Prater's car, coming west, about 10 or 15 feet west of the railroad track. Pfetzner didn't hear the train coming until the whistle was sounded about 135 feet north of the crossing. The bell was not ringing. He tried to warn the deceased by 'honking' the horn of his truck. The train hit the last 3 feet of deceased's truck. He couldn't estimate the speed of the train, but its rear end stopped 591 feet south of the crossing. The next day with one of respondent's counsel, Mr. Ginn, he made an investigation and found no sand along the railroad rails north of a point 471 feet south of the High Street crossing. Nor was there any sand north of the crossing.

After the casualty this witness Pfetzner talked to a neighboring farmer, named Huellhorst. The latter testified the conversation occurred closely following the casualty and that Pfetzner commented on the hardship inflicted on respondent's family; asked him, Huellhorst, if any attorney had been to see him; and said 'if we stick together it would look better.' Pfetzner acknowledged having had a conversation with Huellhorst four months later, but denied the foregoing conversation. However, he admitted that four or five days after his foregoing investigation with Ginn he had been interviewed by a railroad claim agent, Starrett, and refused to give him a statement, though he admitted to Starrett he had given a statement to attorney Ginn. His excuse to Starrett was that there was no use of his giving two statements, and that he had heart trouble.

Engineer McNabb on the 5-car steam locomotive passenger train involved was used as a witness by plaintiff-respondent at the trial. He was seated on the right (west) side of his cab and the fireman on the left. The engine had high speed braking equipment and a sander which were in good order. The visibility was good and the track dry. He could see High Street and he deceased's truck approaching thereon. His speed restriction (by company rule?) was 59 miles per hour.

About a half mile south of the High Street crossing there is an interlocker switch and derailer near Aurora, where the Missouri Pacific crosses the Frisco Railroad. The speed limit thereover is 20 miles per hour. Because of that there is a 35 miles per hour speed sign north of the High Street crossing, which is cautionary and not controlling. The crossing whistle X board for High Street is close to the 35 mile post and some 1350 feet north of the crossing. From the X post the engineer must sound the whistle until he has gone over the crossing.

McNabb said he was running 59 miles per hour back where the 35 mile board was, and he made a service application of the brakes, reducing the speed to 50 miles per hour. The track there is about 1 per cent. downgrade. He saw the deceased's truck proceeding east up High Street toward the railroad crossing, but thought it had stopped. He couldn't say how far north his engine was then, because Prater's westbound automobile suddenly went over the track and apparently wasn't going to make it.

He immediately put the brakes in emergency probably 200 or 300 feet from the crossing for the Prater automobile. The train was then travelling 45 to 50 miles per hour. He didn't close the throttle entirely because he was not supposed to. Also he turned on the sander and left it on until the train stopped. Upon inspecting the locomotive and train for wreckage after the collision he saw sand on his side under the engine. He said there isn't much sand under the wheels after they have run over it, because it is blown away by train suction. The train traveled 1500 feet after the collision, which he considered a good stop considering the declining grade.

The engineer was interrogated on direct and cross-examination by counsel for respondent, and also by appellant's counsel, concerning his foregoing trial testimony that the train was 200 or 300 feet from the crossing when he applied the emergency brakes and turned on the sander. Respondent's counsel showed that in a previous deposition he had said his locomotive was 20 or 30 feet back from the crossing when he first saw Prater's automobile approaching, and 10, 12 or 15 feet therefrom when he applied the emergency brakes because of the rapid approach of that automobile. The engineer answered there must have been some mistake about the meaning of that question in the deposition, and that he had his brakes in emergency because of the Prater automobile before he hit deceased's truck.

On cross-examination by appellant's counsel the engineer said the...