Holdman v. Thompson

• Citation: 216 S.W.2d 72,358 Mo. 577
• Decision Date: 13 December 1948
• Docket Number: 40941
• Parties: Elmina Holdman, Respondent, v. Frank A. Thompson, Trustee for St. Louis-San Francisco Railway Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

216 S.W.2d 72

358 Mo. 577

Elmina Holdman, Respondent, v. Frank A. Thompson, Trustee for St. Louis-San Francisco Railway Company, a Corporation, Appellant

No. 40941

Supreme Court of Missouri

December 13, 1948

Motion for Rehearing or to Transfer to Banc Overruled January 7 1949.

Appeal from Camden Circuit Court; Hon. Charles H. Jackson Judge.

Affirmed.

M. G Roberts, Frank C. Mann, C. Wallace Walter and Mann & Mann for appellant.

(1) An engineer or fireman, upon seeing an automobile approaching a railroad track, has the right to assume, absent something in the action or manner of the driver to indicate to the contrary, that it will stop before going upon the track. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 900; Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13; Stark v. Berger, 344 Mo. 170, 125 S.W.2d 870. (2) Before there could be any duty to sound an emergency warning it must be established that deceased was not only in a position of imminent peril and oblivious thereto, but also that his obliviousness was reasonably apparent to the fireman. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Hutchison v. Thompson, 175 S.W.2d 903; Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13; Flint v. Chicago, B. & Q.R. Co., 207 S.W.2d 474. (3) Because of the absence of any evidence tending to show that deceased was oblivious of the danger and that his obliviousness was reasonably apparent to a reasonable person in the position of the fireman on the train in time to have sounded an effective warning, there is no submissible issue on the failure to warn under the humanitarian theory. Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13; Knight v. Wabash Ry. Co., 85 S.W.2d 392; Phillips v. St. L.S.F. Ry. Co., 337 Mo. 1068, 87 S.W.2d 1035. (4) This court will take judicial notice of the fact that a truck with brakes in good condition and while traveling upgrade at a speed of 25 to 30 miles per hour can be stopped in less than thirty feet. Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784; Crane v. Sirkin & Needles Mov. Co., 85 S.W.2d 911, certiorari denied 340 Mo. 211, 101 S.W.2d 50. (5) This court will take judicial notice of the fact that an appreciable time was required for the fireman to realize the danger, to execute a warning to the engineer and for the engineer to react and set the brakes in emergency. Hutchison v. Thompson, 175 S.W.2d 903; Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74; Karr v. Chicago, R.I. & P.R. Co., 341 Mo. 536, 108 S.W.2d 44; Stark v. Berger, 344 Mo. 170, 125 S.W.2d 870; McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633. (6) There is absolutely no evidence in the record warranting a finding that after deceased actually entered a place of imminent peril reasonably apparent to the fireman that the speed of the train could have been reduced so as to have averted the accident; therefore, there is no submissible issue on the failure to slacken the speed of the train. Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Hutchison v. Thompson, 175 S.W.2d 903; Flint v. Chicago, B. & Q.R. Co., 207 S.W.2d 474; Steuernagel v. St. Louis Pub. Serv. Co., 211 S.W.2d 696; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847; Karr v. Chicago, R.I. & P.R. Co., 341 Mo. 536, 108 S.W.2d 44. (7) Appellant is not bound by the mere conclusion of the fireman, who testified for respondent, and his impression as to when he though the truck was going to stop does not establish the time when the duty for appellant to act arose. Masonic Home of Missouri v. Windsor, 338 Mo. 877, 92 S.W.2d 713; Anderson v. Asphalt Dist. Co., 55 S.W.2d 688. (8) Respondent's Instruction 1 was erroneous because where two or more acts of negligence are submitted in the alternative a submissible case must be made as to each and all such acts of negligence. Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74; Carlisle v. Tilghman, 159 S.W.2d 663; State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W.2d 825.

Claude T. Wood and Bradshaw & Fields for respondent.

(1) There was evidence of probative value establishing appellant's negligence in failing to sound a warning. Gray v. Kurn, 137 S.W.2d 558; Guthrie v. City of St. Charles, 152 S.W.2d 91; White v. Kentling, 134 S.W.2d 39; Gann v. Chicago, etc., Ry. Co., 6 S.W.2d 39; Krause v. Pitcairn, 167 S.W.2d 74; Hinds v. Chicago, etc., Co., 85 S.W.2d 165; Chawkley v. Wabash Ry. Co., 297 S.W. 20; Parker v. Etna Life Ins. Co., 232 S.W. 708; Kirkpatrick v. Wabash Ry. Co., 212 S.W.2d 764; State ex rel. v. Shain, 159 S.W.2d 582; Knorp v. Thompson, 212 S.W.2d 584. (2) There was evidence of probative value establishing appellant's negligence in failing to slacken the speed of the train. Gray v. Kurn, 137 S.W.2d 558; Guthrie v. City of St. Charles, 152 S.W.2d 91; Jones v. Chicago, etc., Ry. Co., 108 S.W.2d 94; Hutchinson v. St. Louis-S.F. Ry. Co., 72 S.W.2d 87; Smith v. Thompson, 142 S.W.2d 70; Dutton v. Kansas City Terminal Ry. Assn., 292 S.W. 718; Rummels v. Illinois Cent. R. Co., 15 S.W.2d 363; Gann v. Chicago, etc., Ry. Co., 6 S.W.2d 39; Weddle v. Trimble, 52 S.W.2d 864; Todd v. St. Louis-S.F. Ry. Co., 37 S.W.2d 557. (3) The giving of Instruction 1 presents no reversible error inasmuch as appellant did not object to Instruction 1 at the time it was given, appellant cannot complain of such instruction on appeal. Sec. 105(a), Civil Code, Laws 1943, p. 386, sec. 847.105, Mo. R.S.A.; 1 Missouri Civil Procedure, p. 848; Supreme Court Rules 3.21, 3.23; Morrison v. Terry, 205 S.W.2d 902; Sec. 122, Civil Code, as amended, Laws 1947, p. 228; Young v. Wheelock, 64 S.W.2d 950; Brunk v. Hamilton-Brown Shoe Co., 66 S.W.2d 903; Weatherly v. Rabe, 66 S.W.2d 545; 25 R.C.L., sec. 216, p. 961; O'Malley v. Continental Life Ins. Co., 75 S.W.2d 837; American Bridge Co. v. Smith, 179 S.W.2d 12; Sec. 105(a) Civil Code. (4) Instruction 1 was properly given. Please see authorities listed under (1) and (2).

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Plaintiff in this case brought this suit on her own behalf and on behalf of her two minor children to recover compensatory damages from the defendant railway company for the death of her husband. She obtained a verdict in the sum of $ 15,000 and from the judgment entered defendant appealed.

Harold L. Holdman, the deceased, on the morning of May 27, 1946, was driving a Ford pickup truck intending to go from his home to a turkey hatchery. On his way he was required to cross the defendant's tracks, at grade, at a point referred to in the evidence as the Dublin Crossing in Pulaski County Missouri. A passenger train, due at that time, was traveling in a northeasterly direction from Springfield to St. Louis, Missouri. The train struck the truck at the crossing and carried it for a distance of about twelve hundred feet. Holdman was in the truck and was killed by the impact.

Defendant urges that plaintiff failed to introduce any evidence to sustain the charge of negligence on failure to warn, or failure to slacken the speed of the train. The case was submitted to the jury on these two issues. The tracks of the defendant company, at the point of collision, run in a northeasterly and southwesterly direction. A farm-to-market road, known as route 133, located north of the tracks, parallels them for some distance. As stated above, the train was traveling in a northeasterly direction and deceased was driving on route 133, also in a northeasterly direction. Route 133 does not cross the tracks, but there is a county public road, known as the Swedeborg Road, which branches off of route 133 in a southerly direction and crosses defendant's tracks. This is what is called the Dublin Crossing, where the collision occurred. The distance from route 133 to the tracks is ninety feet. The evidence most favorable to plaintiff, given by the fireman of the train, is that the deceased was traveling at about twenty-five miles per hour as he turned off of route 133 onto the Swedeborg Road toward the tracks; that when he reached the tracks he was traveling about fifteen miles per hour. The passenger train, consisting of an engine and fourteen cars, was traveling at a speed of about fifty miles per hour. What the fireman did when he saw the deceased make the turn towards the tracks may be best stated by quoting from his evidence as follows:

"Q. How far were you from the crossing when you saw this truck? A. Well, I would say -- oh, three pole lengths -- four -- something like that.

"Q. Could you put that in feet for us? A. Well, it would be about five hundred feet. I believe those poles are a hundred and thirty-five feet.

"Q. You were about five hundred feet from the crossing at that time? A. I believe so.

"Q. And you say he was about eighty-five or ninety feet from the track when you saw him turn in? A. Something like that.

"Q. State whether or not you did know at the time you first saw him, or saw this truck, that he was going to proceed across the railroad track. A. Well, he was going that way, and you would take it for granted he was, I suppose.

"Q. Could you estimate about how fast he was traveling? A. Oh, I would say, just a guess, twenty-five, maybe thirty miles.

"Q. Twenty-five to thirty miles per hour? A. Yes.

"Q. Did you call the engineer's attention to the truck as soon as you saw it? A. Yes, sir.

"Q. How fast was the train traveling at that time? A. Oh approximately fifty miles an hour, I judge.

"Q. Well, what were you doing when you first saw the truck? A. Well, I hollered at the engineer to stop and went to sounding the stock alarm whistle on my side.

"Q. How is that whistle operated? A. It is an air-operated whistle.

"Q. How far were you from the crossing when you first sounded that whistle? A....