Hutchison v. Thompson
| Decision Date | 06 December 1943 |
| Docket Number | 38490 |
| Citation | 175 S.W.2d 903 |
| Parties | HUTCHISON v. THOMPSON |
| Court | Missouri Supreme Court |
Thomas J. Cole, of St. Louis, James A. Potter, of Jefferson City, W W. Blain, of Sedalia, and Leon P. Embry, of California, for appellant.
Trusty & Pugh and Price Wickersham, all of Kansas City, and Fred F Wesner, of Sedalia, for respondent.
VAN OSDOL, Commissioner.
This case has been certified and transferred to this court under the provisions of Section 6, Amendment of 1884, Article VI Constitution of Missouri, Mo.R.S.A.
Defendant has appealed from a judgment based on a verdict awarding plaintiff $ 5,000 for the wrongful death of James Edgar Hutchison, plaintiff's husband, which occurred March 17, 1939, when a truck, in which he was riding, and defendant's passenger train No. 16 collided at Elkhorn crossing about one-half mile west of California, Missouri.
The petition alleged primary negligence and negligence under the humanitarian doctrine. The answer contained a general denial and a plea of contributory negligence. The case was submitted to the jury by instructions authorizing a verdict under the humanitarian doctrine only; failure to slacken the speed of the train, and failure to give an emergency warning. Errors of the trial court are assigned in refusing a request at the close of all of the evidence for an instruction directing a verdict for defendant, and in the giving and refusing of other instructions.
Appellant (defendant) has filed a motion to retransfer the case to the Kansas City Court of Appeals, stating that the cause was erroneously certified to this court and that this court has no jurisdiction of the case. We will rule upon the motion before considering the assignments of error.
The Kansas City Court of Appeals reversed the judgment for plaintiff, ruling, Hutchison v. Thompson, Mo.App., 167 S.W.2d 96, at page 105. Judge Cave of the Kansas City Court of Appeals concurred in the result, but could not concur 'in that portion of the opinion which holds that we may look to the evidence of another record for testimony which was introduced in another case (Knorp v. Thompson, Trustee, Mo.App., 167 S.W.2d 105), and take such testimony into consideration in the present case in deciding the issue of whether the plaintiff in the present case made a submissible issue for the jury at the time her case was tried.'
Appellant urges that, since the result (judgment of reversal) reached by the Kansas City Court of Appeals was concurred in unanimously by the judges, it is obvious that the 'portion of the opinion,' which Judge Cave deemed to be in conflict with previous decisions of this court, was not a ruling which was controlling of the result, and so was not a 'decision' rendered which required the case to be certified and transferred to this court under the provisions of Section 6 of the Amendment of 1884, Article VI, supra.
The Kansas City Court of Appeals in its opinion (167 S.W.2d at page 102) held: Full effect will be given to all the evidence in both cases [Hutchison v. Thompson, Trustee, supra, and Knorp v. Thompson, Trustee, supra] in the conclusions hereafter reached.' The court of appeals, in effect, announced that it based this holding upon a principle of law that a court will take judicial notice of its record of a companion case for the purpose of testing the sufficiency of the evidence upon an issue, and that a plaintiff is entitled to the benefit of all favorable evidence that may be found in the record of a companion case. The principle of law so announced in so holding was a ruling or 'decision' of a court of appeals within the meaning of the section of the Amendment, supra. Knorp v. Thompson, Trustee, Mo.Sup., 175 S.W.2d 889, reviewed concurrently herewith. See also Keller v. Summers, 262 Mo. 324, 171 S.W. 336.
The motion to retransfer is overruled.
In reviewing the evidence, from the viewpoint most favorable to plaintiff, that we may determine whether the evidence was sufficient to make out submissible issues in the case at bar, we will review the evidence introduced in the trial of the case at bar. Knorp v. Thompson, Trustee, supra.
Plaintiff herein alleged in her petition that she is 'the widow of James Edgar Hutchison, who departed this life on or about the 17th day of March, 1939, and that she filed her original petition herein within six (6) months of said date, towit, on the 12th day of September, 1939, in the Circuit Court of Moniteau County at California, Missouri, and that she did, on the 2nd day of January, 1942, voluntarily and without prejudice dismiss her said original cause of action and did immediately thereafter, on the 3rd day of January, 1942, refile her said cause of action herein.'
Plaintiff did not introduce evidence supporting these allegations. Defendant contends that plaintiff did not make a submissible case in that she failed to prove that the action was commenced 'within the time limits fixed by statute.' See Sections 3652 and 3656, R.S.1939, Mo.R.S.A. §§ 3652 and 3656. The defendant did not in any manner make such a specific contention in the trial court. The issues tried and submitted in the trial court were the issues of negligence. The defendant tried the case in the trial court on the theory that the plaintiff was entitled to maintain the action. We will review the case here on the theory on which it was tried in the trial court. .See Knorp v. Thompson, Trustee, supra; Chinn v. Naylor, 182 Mo. 583, 81 S.W. 1109.
At Elkhorn crossing the main line of defendant passes in a northwest-southeast direction and is intersected by Elkhorn graveled road, a 'much used' public highway, which crosses the railroad in a north-south direction, the angle of the crossing being about 45deg.. A spur track is north-east of and parallels defendant's main line at a distance of 29.5 feet, measured at right angles between the centers of the tracks; however, it is 49 feet along Elkhorn road from the south rail of the main track to the north rail of the spur track. Defendant's main line track, in approaching the intersection from the northwest, passes around a curve to the right and straightens out at a point more than one quarter-mile northwest of the crossing; the track is thereafter straight to a point some distance southeast of the crossing where it curves to the left, approaching the city of California. U.S. Highway No. 50 parallels and lies 81 feet southwest of the main line; the measurement is at right angles from the center of the highway to the center of the main line track. The M. F. A. Oil Company maintains a bulk oil plant north of defendant's tracks and west of Elkhorn road. Another graveled highway extends westwardly from California, crossing Elkhorn road about thirty feet north of the bulk plant. The bulk plant consists of a building 24 by 18 feet with a loading dock 4 by 11 feet on the east side of the building. The building faces Elkhorn road at an angle, somewhat south of east; the southwest corner of the building is 50 feet north of the center of the main line track measured at right angles to the track. Beginning at the north rail of the spur track, at the crossing, the west margin of the graveled portion of Elkhorn road varies northwestwardly to the loading dock; the graveled roadway being 36 feet wide in front of the loading dock. Four storage tanks are appurtenant and stand to the northwest of the bulk plant building. There is a (slightly leaning) telegraph pole 27 feet southeast of the southeast corner of the bulk plant building. This leaning pole is 55 feet northeast of the center line of the main track, measured at right angles to the track. Passing from the leaning pole, as an automobile would travel over Elkhorn road to cross over the crossing, the distance is 110 feet to the center line of defendant's main track. From a point in Elkhorn road, 75 feet north of the spur track, the roadway rises gradually 1.9 feet in reaching the spur track, rises 2.15 feet in passing from the spur track to the main track, and falls 4.35 feet in passing from Elkhorn road from the main line to U.S. Highway No. 50, a distance of 114 feet. There are two other bulk plants north of the spur track and east of Elkhorn road; a roadway serving these plants passes from Elkhorn road along and between the spur track and the main line track.
A witness testified that upon approaching the main line from the spur track 'the rise is very general, generally uniform or approximately in a straight line'; the boards lying parallel to the rails at the spur track and at the main line are 'laid level' and are approximately 15 1/2 feet in length; the serviceable width of the Elkhorn roadway at the two tracks is approximately 13 feet, 'It would be difficult for two cars to cross at the same time, it would be awfully close.' The same witness testified on cross-examination, 'there might be a few feet, something like that' on the spur track and south of it that the gravel road is 'level or relatively level or flat * * *.' Another witness described this level place as being about ten feet in length and 'I believe that (ten feet) would include the spur track.'
It appears that, from a point on Elkhorn road at the west margin of the gravel 88 feet north of the center line of the main line crossing and 53 feet northeast (at right angles) of the main line, the line of vision to the northwestward clears the bulk plant and the leaning pole and one may without interference see defendant's block signals on the main line 1,278 feet away. Testimony was introduced tending to show that a man, with a camera, standing in Elkhorn road 75...
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