Hoelzel v. Railway Co.

• Decision Date: 09 July 1935
• Docket Number: No. 31835.,31835.
• Citation: 85 S.W.2d 126
• Court: Missouri Supreme Court
• Parties: FRANK HOELZEL v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, a Corporation, FRED M. CARDEN and ARTHUR J. WILLIAMS, Appellants.

85 S.W.2d 126

FRANK HOELZEL v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, a Corporation, FRED M. CARDEN and ARTHUR J. WILLIAMS, Appellants.

No. 31835.

Supreme Court of Missouri.

Division One, July 9, 1935.^*

Appeal from Clinton Circuit Court. — Hon. Guy B. Park, Judge.

REVERSED AND REMANDED (with directions).

Luther Burns, Henry S. Conrad, L.E. Durham, Hale Houts and I.M. Lee for appellant.

(1) The court erred in giving plaintiff's Instruction 1. (a) Under the evidence in the case the alleged operation of the train at a speed in excess of that permitted by the city ordinance was not submissible as the proximate cause of plaintiff's injury. Bluedorn v. Railroad Co., 121 Mo. 258; King v. Railroad Co., 211 Mo. 14; Lackey v. Rys. Co., 288 Mo. 146; Battles v. Rys. Co., 178 Mo. App. 620; Highfill v. Wells, 16 S.W. (2d) 103; Schupback v. Meshevsky, 300 S.W. 467; Weltner v. Bishop, 171 Mo. 116; Dyrcz v. Railroad Co., 238 Mo. 47; McGowan v. Wells, 324 Mo. 666. (b) The instruction was further erroneous in limiting the issue of plaintiff's contributory negligence to the exercise of ordinary care by plaintiff "at and just prior to the time" "of the striking and injuring of plaintiff by said engine and train." There was substantial evidence of negligence on the part of plaintiff directly contributing to his injury prior to the time the driver put on the brakes and by all the evidence it was too late for plaintiff to exercise ordinary care and he was powerless to avert the accident "at and just prior to the time" "of the striking and injuring of plaintiff." Lynch v. Railroad Co., 61 S.W. (2d) 920; Moberly v. Railroad Co., 98 Mo. 187; Hall v. Ry. Co., 240 S.W. 176; Iman v. Bread Co., 58 S.W. (2d) 480. (2) The court erred in giving plaintiff's Instruction 2. (a) The instruction erroneously authorized a verdict for plaintiff for failure to sound the engine bell although the jury might find that the whistle was sounded or for failure to sound the whistle although the jury might find that the bell was sounded. There was no duty to sound both. The sounding of either was sufficient. Sec. 4756, R.S. 1929; Moyer v. Ry. Co., 198 S.W. 839; Daniel v. Prior, 227 S.W. 102; Lynch v. Railroad Co., 61 S.W. (2d) 923. (b) The instruction was further erroneous in confining the issues of plaintiff's contributory negligence to "the time of and just before said collision." At the time thus specified plaintiff was powerless to prevent the collision. His prior negligence as the truck approached the crossing and before it started to skid was responsible for the collision and for the inability of plaintiff to prevent it at the time mentioned in plaintiff's instruction. Authorities, point 1 (b). (c) The instruction was erroneous as to defendant Carden for the additional reason that no failure to give statutory engine signals created liability against him in favor of the plaintiff. Lynch v. Railroad Co., 61 S.W. (2d) 924. (3) The court erred in giving plaintiff's Instruction 3. (a) The instruction erroneously submitted to the jury an issue of primary negligence on the part of all the defendants in connection with the humanitarian doctrine and although authorizing a verdict for plaintiff notwithstanding contributory negligence on his part. Sevedge v. Railroad Co., 53 S.W. (2d) 286. (b) The instruction was further erroneous in authorizing recovery as for failure to slacken the speed or failure to warn. Neither of said alternatives were supported by the evidence and the instruction was erroneous unless all the alternatives were submissible. Lakey v. Ry. Co., 288 Mo. 147; Sevedge v. Railroad Co., 53 S.W. (2d) 287; Bury v. Ry. Co., 223 Mo. App. 489; Cervillo v. Manhattan Oil Co., 226 Mo. App. 1115; Driscoll v. Wells, 29 S.W. (2d) 50; Clay v. Ry. Co., 5 S.W. (2d) 412. (4) The errors committed in the giving of Instructions 1, 2 and 3 require reversal of the judgment as to all of the appellants. Kennedy v. Byers, 140 N.E. 630. (5) The verdict was excessive. Radler v. Railroad Co., 51 S.W. (2d) 1014; Clark v. Ry. Co., 324 Mo. 406.

James P. Aylward, Pross T. Cross, Gerald Cross and Terence M. O'Brien for respondent.

(1) Violation of the speed ordinance was negligence per se, and a proximate cause of the injury. Plaintiff's Instruction 1 submitting the case on that theory was properly given. Todd v. Ry. Co., 37 S.W. (2d) 557; Jackson v. Ry. Co., 42 S.W. (2d) 932; Johnson v. Railroad Co., 259 Mo. 536; Stotler v. Ry. Co., 200 Mo. 107, 98 S.W. 509; Ruenzi v. Payne, 208 Mo. App. 113, 231 S.W. 294; Stauchon v. Ry. Co., 232 Mo. 587, 135 S.W. 14; Gratiot v. Ry. Co., 116 Mo. 450, 21 S.W. 1094; Bluedorn v. Ry. Co., 121 Mo. 258, 25 S.W. 943; Kelly v. Ry. Co., 101 Mo. 67, 13 S.W. 806; Ewin v. Railroad Co., 96 Mo. 290, 9 S.W. 577; Schlereth v. Ry. Co., 96 Mo. 509, 10 S.W. 66; Swigart v. Lusk, 196 Mo. App. 471, 192 S.W. 138; Cunningham v. Ry. Co., 9 S.W. (2d) 166; Campbell v. Railroad Co., 211 Mo. App. 331, 245 S.W. 58; Clay v. Railroad Co., 5 S.W. (2d) 411. (a) Plaintiff had a right to rely upon the speed ordinance being obeyed, and to assume that the train would not be run in excess of ten miles an hour. Todd v. Ry. Co., 37 S.W. (2d) 557; State ex rel. v. Reynolds, 214 S.W. 121; Lackey v. Railroad Co., 288 Mo. 120, 231 S.W. 956; Hahn v. Ry. Co., 238 S.W. 529; Cihla v. Ry. Co., 221 S.W. 427; Moon v. Transit Co., 237 Mo. 433; Riska v. Ry. Co., 180 Mo. 191; Eckhard v. Ry. Co., 190 Mo. 593, 89 S.W. 602; Jackson v. Ry. Co., 42 S.W. (2d) 932; Mason v. Railroad Co., 246 S.W. 318; Harrington v. Transit Co., 273 Mo. 414, 202 S.W. 1066; Strauchon v. Ry. Co., 232 Mo. 587, 135 S.W. 14; Weller v. Ry. Co., 164 Mo. 180, 64 S.W. 141; Cox v. Reynolds, 18 S.W. (2d) 575; Unterlachner v. Wells, 296 S.W. 755; Cunningham v. Ry. Co., 9 S.W. (2d) 166; Johnson v. Railroad Co., 259 Mo. 536. (b) Plaintiff's Instruction 1 was not erroneous by reason of the use of the words, "at and just prior to the time of the striking and injuring of plaintiff by said engine and train," in submitting the issue as to plaintiff's negligence. Kellney v. Ry. Co., 101 Mo. 67, 13 S.W. 806; Chicago & Alton Railroad Co. v. Carson, 198 Ill. 98; Cleveland Railroad Co. v. Kennan, 190 Ill. 217; Bux v. Railroad Co., 229 Ill. App. 50; Krieger v. Railroad Co., 242 Ill. 544; Knox v. Rolling Mill Corp., 236 Ill. 437. (2) The court did not err in giving plaintiff's Instruction 2. It properly stated the law as to statutory signals. Failure to give signals is negligence per se, and, if injury results, the law presumes that such failure was a proximate cause. The instruction was in proper form. Sec. 4756, R.S. 1929; Persinger v. Ry. Co., 82 Mo. 196; Green v. Ry. Co., 192 Mo. 131; Stotler v. Railroad Co., 200 Mo. 107; McNulty v. Ry. Co., 203 Mo. 475; McGee v. Ry. Co., 214 Mo. 530; Monroe v. Ry. Co., 280 Mo. 483, 219 S.W. 68; Lloyd v. Railroad Co., 128 Mo. 595; Allen v. Railroad Co., 281 S.W. 737; Midgett v. Ry. Co., 124 Mo. App. 540; Day v. Ry. Co., 132 Mo. App. 707; Byars v. Ry. Co., 161 Mo. App. 692; Brown v. Ry. Co., 166 Mo. App. 255; Welsh v. Ry. Co., 190 Mo. App. 213; Pierson v. Ry. Co., 275 S.W. 561; Ruenzi v. Railroad Co., 231 S.W. 294; Clay v. Ry. Co., 5 S.W. (2d) 409; Lynch v. Railroad Co., 61 S.W. (2d) 918; Mayer v. Railroad Co., 198 S.W. 839; Kenney v. Railroad Co., 105 Mo. 270. (a) Even if there was error in submitting an issue to the jury against engineer Carden, yet the instruction properly declared the law as applied to defendant railway, and the judgment can be affirmed against it and reversed as to the engineer. Stotler v. Ry. Co., 200 Mo. 150; Clark v. Railroad Co., 234 Mo. 396; Gerber v. Kansas City, 311 Mo. 49; McMahon v. Joseph Grenspon's Sons, 267 S.W. 83; Hamm v. Railroad Co., 211 Mo. App. 460, 245 S.W. 1109. (3) The court did not err in giving plaintiff's Instruction 3. (a) Instruction 3 did not submit primary negligence in connection with the humanitarian doctrine. Duty to keep lookout is an element of humanitarian doctrine case Gordon v. Postal Tel. Co., 24 S.W. (2d) 648; Hults v. Miller, 299 S.W. 85; Kinlen v. Railroad Co., 216 Mo. 160; Parrish v. United Ry. Co., 260 S.W. 748; Sallee v. Ry. Co., 12 S.W. (2d) 476; Foster v. Ry. Co., 235 S.W. 1070; Thompson v. Ry. Co., 18 S.W. (2d) 401; Zumwalt v. Ry. Co., 266 S.W. 717; Kloeckener v. St. Louis Pub. Serv. Co., 53 S.W. (2d) 1045. (b) Instruction 3 properly submitted the failure to slacken speed or warn to the jury. Both of said alternatives were supported by the evidence. Althage v. Motorbus Co., 8 S.W. (2d) 924; Anderson v. Davis, 284 S.W. 439; Dutton v. Ry. Co., 292 S.W. 718; Logan v. Ry. Co., 254 S.W. 705; State ex rel. v. Trimble, 260 S.W. 1000; Conley v. Ry. Co., 253 S.W. 426; Spoeneman v. Uhri, 60 S.W. (2d) 9; Zumwalt v. Ry. Co., 266 S.W. 717; Ellis v. Ry. Co., 234 Mo. 630, 138 S.W. 30; Allen v. Ry. Co., 281 S.W. 737; Chapman v. Ry. Co., 269 S.W. 688; Clark v. Ry. Co., 6 S.W. (2d) 954; Koontz v. Railroad Co., 253 S.W. 413; Tavis v. Bush, 280 Mo. 387, 217 S.W. 274; Wolf v. Ry. Co., 251 S.W. 441; Murell v. Ry. Co., 279 Mo. 667, 213 S.W. 964; Maginnis v. Ry. Co., 268 Mo. 667, 187 S.W. 1165; Eckhard v. Ry. Co., 190 Mo. 593; Grigg v. Ry. Co., 228 S.W. 508; Monroe v. Ry. Co., 219 S.W. 68; Chawkley v. Ry. Co., 297 S.W. 24; Gann v. Ry. Co., 6 S.W. (2d) 39; Dutcher v. Ry. Co., 241 Mo. 137; Pense v. K.C. Laundry Co., 59 S.W. (2d) 633; Hinzeman v. Railroad Co., 199 Mo. 65. (4) The only possible error contained in Instruction 2 would be the submission under that instruction as to defendant Carden, and, if error, it was error against Carden only, and not against defendant railway. Stotler v. Ry. Co., 200 Mo. 150; Clark v. Railroad Co., 234 Mo. 396; Gerber v. Kansas City, 311 Mo. 49; McMahon v. Joseph Grenspon's Sons, 267 S.W. 83; Hamm v. Railroad Co., 211 Mo. App. 460, 245 S.W. 1109. (5) The verdict was not excessive. Wack v. Schoenberg Mfg. Co., 53 S.W. (2d) 28; Hoff v. Ry. Co., 254 S.W. 874; Woods v. Merchants Bridge Term. Co., 8 S.W. (2d) 922; ...