Jackson v. Southwest Missouri R. Co.

• Decision Date: 05 May 1913
• Parties: JACKSON v. SOUTHWEST MISSOURI R. CO.
• Court: Missouri Court of Appeals

156 S.W. 1005

171 Mo. A. 430

JACKSON v. SOUTHWEST MISSOURI R. CO.

Springfield Court of Appeals. Missouri.

May 5, 1913.

1. CONTINUANCE (§ 14) — GROUNDS — AMENDMENT OF PLEADINGS — DISCRETION OF COURT.

Where, at the close of his evidence, the plaintiff, in an action for personal injuries, amended his petition by inserting in a count for negligence based upon section 3140, Rev. St. 1909, requiring locomotives to sound a warning 80 rods from road crossings, an allegation of negligence for approaching a crossing at a dangerous speed without giving sufficient warning, which was substantially the same negligence charged in the second count, the refusal of the court to grant a continuance to the defendant because of surprise was not such an abuse of discretion as to require a reversal of the case.

2. RAILROADS (§ 312) — HIGHWAY CROSSINGS — DUTY TO WARN.

Persons operating electric cars running at a high speed through the country are required, regardless of statute, to give effective and timely warning, commensurate with the speed and danger, of their approach to highway crossings.

3. APPEAL AND ERROR (§ 1033) — HARMLESS ERROR — ERROR FAVORABLE TO APPELLANT.

Where the instruction, in an action for personal injuries, required the jury to find the defendant guilty on three grounds of negligence alleged in the petition before the plaintiff could recover, a judgment for the plaintiff will be sustained if any one of the grounds constitutes actionable negligence and is supported by the evidence; defendant not being entitled to complain of an error affecting only the plaintiff.

4. APPEAL AND ERROR (§ 930) — REVIEW — EVIDENCE — SUFFICIENCY.

In determining upon appeal the sufficiency of evidence to sustain a verdict for the plaintiff, the court must take the evidence most strongly in favor of the plaintiff.

5. RAILROADS (§ 312) — ACCIDENTS AT CROSSINGS — NEGLIGENCE.

Where an electric car approached a crossing at a speed of 30 miles per hour or more without giving any warning signal until within 300 or 400 feet of the crossing, those in charge of the car were guilty of actionable negligence.

6. RAILROADS (§ 350) — ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE — SPEED OF PERSON INJURED.

Where a motorcycle rider approached a railroad crossing at a speed of 4½ miles per hour, such speed was not negligence per se.

7. RAILROADS (§ 324) — ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE — PARTICULAR FACTS.

Each case for injuries received at a railroad crossing, where the defense is contributory negligence, must depend on its own particular facts.

8. RAILROADS (§ 327) — ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE — DUTY TO LOOK AND LISTEN.

A railroad is in itself a warning of danger, and any one attempting to cross without looking and listening to ascertain whether a train is approaching is guilty of contributory negligence.

9. RAILROADS (§ 335) — ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE — EFFECT.

Where a traveler on a highway is guilty of contributory negligence for failure to use due care in approaching a railroad crossing, no amount of negligence by the railroad company will warrant a recovery.

10. RAILROADS (§ 327) — ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE — CONTINUING DUTY.

The duty of a person approaching a railroad crossing to look and listen is continuing, and whether a single look is sufficient care depends upon the circumstances of the particular case, such as the existence of obstructions to the view and the speed and mode of travel of the person injured.

11. RAILROADS (§ 324) — ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE — DEGREE OF CARE.

A person approaching a railroad crossing, while he may not rely upon the presumption that the company will fulfill its duty as to speed and warning, is not held to the highest degree of care, but need exercise only ordinary care to avoid injury due to the railroad's negligence.

12. RAILROADS (§ 350) — ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE — EVIDENCE — SUFFICIENCY.

In an action for injuries received at a railroad crossing, evidence that the plaintiff exercised ordinary care in attempting to cross the track held sufficient to justify a refusal to direct a verdict for the defendant.

13. RAILROADS (§ 327) — CROSSING ACCIDENT — CONTRIBUTORY NEGLIGENCE — MOTORCYCLIST.

A motorcycle rider is not bound, as matter of law, to stop or check his machine when approaching a railroad crossing, irrespective of his speed, but only when moving at high speed, or when necessary to have a chance to look and listen.

14. TRIAL (§ 261) — INSTRUCTIONS — ERRONEOUS REQUESTS.

An instruction based in part on a fact not supported by the evidence is properly refused.

15. TRIAL (§ 251) — INSTRUCTIONS — APPLICABILITY TO ISSUES.

Instructions based upon an issue not in the case or upon a count of the petition which was dismissed should be refused.

16. TRIAL (§ 260) —INSTRUCTIONS ALREADY GIVEN.

Requested instructions sufficiently covered by instructions already given are properly refused.

Farrington, J. dissenting.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by J. W. Jackson against the Southwest Missouri Railroad Company. From a judgment in favor of the plaintiff, defendant appeals. Affirmed.

McReynolds & Halliburton, of Carthage, for appellant. R. A. Mooneyham, of Carthage, and Norman A. Cox and Hugh Dabbs, both of Joplin, for respondent.

STURGIS, J.

The injuries for which plaintiff brought suit and recovered judgment were caused by his coming in collision with one of defendant's interurban cars running on its road extending from Carthage, Mo., through Webb City and Joplin to Galena, Kan. The cars are propelled by electricity and the road is what is termed a trolley line, running single cars thereon. The collision occurred at a public road crossing south of Webb City. This public road runs east and west and forms the southern boundary of that city. The defendant's car line crosses this at right angles. The plaintiff was traveling eastward along this road on a motorcycle, and defendant's car was going south. The result was that they collided at the crossing and plaintiff was severely injured, his skull fractured, and he received such permanent injuries therefrom as will justify a judgment of $7,500, provided defendant is to be held responsible for his injury.

As is usual in this class of cases, the plaintiff claims that the accident was wholly due to the fault and negligence of defendant. On the other hand, the defendant says that plaintiff was not without fault and negligence on his part, and that his injuries were caused wholly or partially by his own negligence. The specific acts of negligence set out by plaintiff in his petition are: First, negligently failing to ring the bell or gong thereon at a distance of 80 rods from said crossing and to keep same ringing until said car had crossed said highway, and also failed to sound the whistle on said car at a distance of 80 rods from said crossing and to sound said whistle at intervals until said car had crossed said highway; second, running at a greater rate of speed than 15 miles per hour in violation of the ordinances of Webb City; third, negligently approaching the crossing at a rapid and dangerous rate of speed without giving any warning sufficient to notify plaintiff that said car was coming and negligently failing to ring the bell and sound the whistle on said car at a sufficient distance from said crossing to give plaintiff and persons approaching said crossing along said highway notice of the approach of said car, and negligently failing to give any warning sufficient to notify persons approaching said crossing of the approach of said car. The answer of defendant, after admitting its incorporation under the general railroad laws of Missouri and its operation of an interurban electric railway system for carrying passengers, is a general denial and this affirmative defense: "Defendant, further answering, says that the accident and injuries, if any, received by plaintiff were caused solely and wholly by the fault and negligence of the plaintiff in that the plaintiff, riding a motorcycle, approached the track of defendant's railroad from the west at an exceedingly rapid rate of speed, and without looking or listening for a car thereon, when by looking he could have seen, and by listening he could have heard, attempted to cross said railroad, and did cross the west track of said road with his motorcycle, when for some cause or other plaintiff slipped off the back end of his motorcycle and was caught by the east step of the car running on the west track of said road, all of which was without fault or negligence on the part of this defendant."

The petition was originally in two counts, and at the close of his evidence in chief plaintiff, by leave of court, amended his first count by inserting the third ground of negligence as above mentioned. Thereupon defendant filed an affidavit of surprise and asked for a continuance. This was refused, and the court's action in this respect is assigned as error. As substantially this same ground of negligence was already in the second count of the petition, and so constituted a part of plaintiff's cause of action which defendant was required to meet, its insertion in the first count could not have misled defendant to his injury. At least it was not such an abuse of the court's discretion in such matter as to call for a reversal of the case. This assignment is therefore ruled against the defendant.

It will be noted that there are three grounds of negligence alleged by plaintiff with reference to the running of defendant's car: (1) Exceeding the speed limit of 15 miles an hour in violation of the ordinances of Webb City; (2) failing to ring the bell or sound the whistle not less than 80 rods from the public crossing as required by statute (section 3140, R. S. 1909), relating to railroads generally; (3) common-law negligence in...