Homan v. Missouri Pac. R. Co.

• Decision Date: 19 April 1934
• Docket Number: 30402,30403
• Parties: Homer Homan v. Missouri Pacific Railroad Company, a Corporation, and Capitol Stage Lines Company, Appellants
• Court: Missouri Supreme Court

70 S.W.2d 869

335 Mo. 30

Homer Homan v. Missouri Pacific Railroad Company, a Corporation, and Capitol Stage Lines Company, Appellants

Nos. 30402, 30403

Supreme Court of Missouri

April 19, 1934

Appeal from Cooper Circuit Court; Hon. Henry J. Westhues Judge.

Affirmed (upon condition).

Thomas J. Cole and Roy W. Rucker for Missouri Pacific Railroad Company.

(1) The court erred in refusing demurrer offered by the defendant railroad company for the reason that it conclusively appears that the agents and servants in charge of defendant's train could not, by the exercise of ordinary care on their part, have brought the train to a stop in time to have averted the collision after the motor bus in which plaintiff was riding entered the danger zone. Rollinson v Railroad, 252 Mo. 525; State ex rel. v. Bland, 313 Mo. 246; McGee v. Railroad, 214 Mo. 530; State ex rel. Fleming v. Bland, 322 Mo. 565. (2) The court erred in giving plaintiff's Instruction B for the reason, (a) That plaintiff was not entitled to go to the jury under the humanitarian theory -- (cases cited under Point 1) and (b) For the reason that said instruction failed to define the terms "ordinary care" and "negligence." These terms were not defined in any instruction given for plaintiff or either of the defendants and the terms were not used in any instruction given on behalf of this defendant. Therefore, the error of the court in failing to define the terms was not cured by any instruction given on behalf of this defendant. State ex rel. v. Ellison, 199 S.W. 987. (3) The court erred in giving plaintiff's Instruction G for the reason that under the instruction the jury was authorized to find that the crossing in question was "unusually dangerous and hazardous" when there was no evidence upon which to base the finding, but on the contrary the evidence showed that travelers approaching the crossing had an unobstructed view of an approaching train and that the crossing was free from all danger except such as is ordinarily incident to every railroad crossing. To this extent the instruction was broader than the evidence and was erroneous. State ex rel. v Ellison, 270 Mo. 653. The instruction likewise authorized the jury to find that ordinary care in railroad management required the drag of cars to be stopped before crossing Highway No. 50, or that an employee should be sent forward to flag or protect the crossing when there was no evidence upon which to base such a finding, and the law does not require the defendant railroad company to adopt such measures. Welsch v. Railroads, 72 Mo. 451. (4) The testimony of the experts who examined the flat car and the bus with reference to the position of the bus and flat car at the moment of collision should have been admitted. The court erred in refusing to admit such testimony because the testimony of the eyewitnesses was conflicting and the evidence of two disinterested experts would have materially aided the jury in passing upon this very vital question. Patrick v. Steamboat & J. Q. Adams, 19 Mo. 75. (5) The court erred in giving plaintiff's Instruction B for the additional reason that it does not properly state the humanitarian doctrine as the law under that doctrine should be applied to the facts in this case. It fails to take into account the duty of the bus driver to stop for the railroad crossing and authorizes the verdict without including this defendant's theory. Mulderig v. Railroads, 116 Mo.App. 670; Stewart v. Mo. Pacific, 308 Mo. 389; Schroeder v. Wells, 310 Mo. 652; State ex rel. v. Trimble, 253 S.W. 1019; Monroe v. Railroad, 219 S.W. 69; Wingfield v. Railroad, 257 Mo. 360; State ex rel. v. Trimble, 291 Mo. 235; Allen v. Mo. Pacific, 294 S.W. 80. (6) The court erred in refusing to give this defendant's Instruction 4-a, for the reason that under the law the agents in charge of defendant's train have a right to assume, (a) That the driver of the bus would not attempt to cross the track immediately in front of a moving train, and (b) That the driver of the bus would obey the law and bring the bus to a stop before reaching the track. Schmidt v. Railroad, 191 Mo. 233; Guyer v. Railroad, 174 Mo. 350.

O. H. Swearingen and Bohling & Bohling for respondent.

(1) Appellant Missouri Pacific Railroad Company's general demurrer to the evidence was properly overruled. (a) There was positive evidence at the time the demurrer was offered warranting the submission of the case to the jury upon the violation of the statute requiring signal by bell, or whistle, beginning 80 rods back from the railroad crossing. Sec. 4756, R. S. 1929; Stotler v. Ry. Co., 200 Mo. 138; Toeneboehn v. Ry. Co., 317 Mo. 1116, 1117, 298 S.W. 805; Peppers v. Ry. Co., 316 Mo. 1112; Herrell v. Ry. Co., 18 S.W.2d 483; Connole v. Railroad Co., 21 S.W.2d 910; Gann v. Ry. Co., 319 Mo. 222; Anderson v. Davis, 314 Mo. 562. (b) There was abundant evidence to establish the fact that the surrounding circumstances and conditions required the railroad company in the exercise of ordinary care, to send someone forward to flag or protect the crossing or stop said drag of cars before crossing the highway. Toeneboehn v. Ry. Co., 317 Mo. 1116, 298 S.W. 801; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 36 L.Ed. 492; Peppers v. Ry. Co., 316 Mo. 1104, 295 S.W. 759; Herrell v. Frisco Ry. Co., 18 S.W.2d 485. This collision occurred within the yard limits of appellant Missouri Pacific Railroad Company while it was performing a yard-switching movement by a switching crew with a switch engine. There was no flagman or gate at this crossing. Weed v. Am. C. & F. Co., 14 S.W.2d 655; Bond v. Ry. Co., 315 Mo. 987, 288 S.W. 788; Panama Railroad Co. v. Pigott, 254 U.S. 553. (c) There was sufficient evidence to require the submission of the case under the humanitarian rule. Banks v. Morris, 302 Mo. 254, 257 S.W. 484; Vowels v. Railroad Co., 320 Mo. 34, 8 S.W.2d 7; Herrell v. Ry. Co., 18 S.W.2d 485; Logan v. Ry. Co., 300 Mo. 632, 254 S.W. 711; State ex rel. v. Trimble, 260 S.W. 1001; Montague v. Ry. Co., 305 Mo. 281, 264 S.W. 816; Allen v. Ry. Co., 313 Mo. 61, 281 S.W. 742; Schroeder v. Wells, 310 Mo. 655; Gann v. Ry. Co., 319 Mo. 214, 6 S.W.2d 39; Owen v. Delano, 194 S.W. 759; Anderson v. Davis, 314 Mo. 546, 284 S.W. 449; Griggs v. K. C. Rys. Co., 228 S.W. 510; Mahany v. K. C. Rys. Co., 286 Mo. 601. Appellant Missouri Pacific Railroad Company had no right to rely upon the bus driver observing the Public Service Commission rule requiring him to stop. Clark v. Railroad Co., 127 Mo. 213; Beal v. Railroad Co., 285 S.W. 486; McFadden v. Loft, 161 Mo.App. 659. It was the duty of appellant to slow down and stop its cars as soon as possible on the appearance of danger. Deschner v. Railroad Co., 200 Mo. 331; Klockenbrink v. Railroad Co., 172 Mo. 686; Cases supra on humanitarian doctrine. At the time the demurrer was offered the failure to sound a warning under the humanitarian rule was still in the case. Schroeder v. Wells, 310 Mo. 652; Anderson v. Davis, 314 Mo. 556. Negligence is not a question of law unless the acts are such that all reasonable men would concur in pronouncing them so. Wilson v. Wells, 13 S.W.2d 541; Yuronis v. Wells, 17 S.W.2d 518; Waddell v. Railroad, 213 Mo. 8; Ganey v. Kansas City, 259 Mo. 654; Kennett v. Const. Co., 273 Mo. 279; Cech v. Mallinckrodt, 20 S.W.2d 509; Nordman v. Hahn Bakery Co., 298 S.W. 1039; Sugarwater v. Fleming, 293 S.W. 111; Logan v. C. B. & Q., 300 Mo. 636, 254 S.W. 711; Vardell v. Shelton Store Co., 4 S.W.2d 478; Brickley v. Terminal Ry. Co., 259 S.W. 476; Troll v. Drayage Co., 254 Mo. 332; Fischer v. Pub. Serv. Co., 19 S.W.2d 500; Vowels v. Mo. Pacific, 320 Mo. 34; Butz v. Const. Co., 199 Mo. 279; Thompson v. Ry., 18 S.W.2d 401; Compton v. Construction Co., 315 Mo. 1068; Herrell v. Frisco Ry. Co., 18 S.W.2d 485; Ganey v. Kansas City, 259 Mo. 654; Williams v. Hall, 261 S.W. 938. (2) The court did not err in giving plaintiff's Instruction B. (a) Plaintiff was entitled to go to the jury under the humanitarian theory. See cases cited under Point 1 (c). (b) Appellant has no right to complain of the failure to define the terms "negligent," "negligence" and "ordinary care." The defendant used the words "negligent," "negligence" and "negligently and carelessly" in its given instructions 6, 9, 11, 14, 15, 20, 24 and 26, with defining them. If appellant desired that these terms be defined, it should have requested the same in a proper instruction. State ex rel. v. Daues, 18 S.W.2d 490; Van Horn v. United F. & I. Co., 31 S.W.2d 264; Reppetoe v. Ry. Co., 138 Mo.App. 408; Duvall v. Cooperage Co., 275 S.W. 589; Quirk v. St. Louis, etc., Co., 126 Mo. 293; Albert v. United Rys. Co., 232 S.W. 793; Morgan v. Mulhall, 214 Mo. 463. If appellant Missouri Pacific Railroad Company felt that it was being prejudiced by the use of the term "ordinary care" it was incumbent upon it to ask the court to define it. Berryman v. So. Surety Co., 285 Mo. 395; Warden v. Henry, 117 Mo. 545; Cottrill v. Krum, 100 Mo. 397; Van Tresse v. K. C. Pub. Serv. Co., 4 S.W.2d 1097; Maloney v. Railway, 237 S.W. 515; Norris v. Iron Mountain & So., 239 Mo. 716; Quirk v. Elevator Co., 126 Mo. 293; Bopp v. Mfg. Co., 299 S.W. 140; Wade v. Transit Co., 203 Mo. 276; Browning v. Ry. Co., 124 Mo. 72; Powell v. Railroad, 255 Mo. 455; Block v. United S. F. & G., 316 Mo. 278; Barr v. Railroad Co., 138 Mo.App. 471, 120 S.W. 111; Gordon v. Park, 219 Mo. 611; Tate v. Railroad Co., 159 Mo.App. 481; Monroe v. Railroad Co., 280 Mo. 489; Meyers v. Drake, 24 S.W.2d 125. Each and every instruction of respondent presenting the issues between respondent and appellant Missouri Pacific Railroad Company required the jury to find specific hypothesized facts requisite to appellant's negligence, precluding any possibility of confusing the jury as to the...