Janssens v. Thompson, 41104
| Decision Date | 13 March 1950 |
| Docket Number | No. 41104,41104 |
| Citation | 228 S.W.2d 743,360 Mo. 351 |
| Parties | JANSSENS et al. v. THOMPSON. |
| Court | Missouri Supreme Court |
M. G. Roberts, E. G. Nahler, St. Louis, Thomas E. Deacy, Milligan, Kimberly & Deacy, Kansas City, attorneys for appellant.
Harry R. Freeman, John G. Madden, Madden, Freeman, Madden & Burke, Kansas City, attorneys for respondents.
Action for $10,000 damages for wrongful death of plaintiffs' son. Verdict for defendant and new trial ordered for error in giving defendant's Instructions 4, 5 and 6. Defendant has appealed.
Defendant contends that these instructions were correct and also that plaintiffs failed to make a jury case. The case was submitted solely upon humanitarian negligence. Plaintiffs' son, Edgar G. Janssens, Jr., was killed when the truck he was driving east was struck by defendant's northbound passenger train at the entrance to Flynn's Quarry in Jackson County. This quarry was on the east side of the railroad which ran north and south, paralleled a short distance west by U. S. Highway 71. A gravel road ran east from the Highway into the quarry. This road was 19 feet wide and the distance from the Highway to the railroad track was about 88 feet. Where the road turned off from the Highway it was about twice as wide, but it narrowed to 19 feet in about that distance from the Highway. There is some conflict in the evidence about the condition of this road on the day of the collision. However, the testimony most favorable to plaintiffs' theory of the case was that this road was covered with ice, which had melted some the day Janssens was killed, and was very slick. There had been a heavy snow about two weeks before, which had been packed and frozen over the gravel, and there had been freezing rain more recently. The Highway had been cleared by snowplows which left a considerable ridge of packed frozen snow across the entrance to the gravel road. There were two sets of ruts in this snow and ice which came together to form two tracks where the road narrowed and these continued to the railroad. There was only a slight grade from the Highway to the railroad.
Defendant's track was straight for 730 feet south of the quarry crossing and it then curved slightly to the left. Defendant's train had stopped at Holms Park less than one-half mile from the quarry. The track was downgrade from that point to and beyond the quarry. Defendant's engine was working steam and continuously increasing speed as it approached the crossing. Its speed was estimated at 20 miles per hour 600 feet from the crossing, 25 miles per hour at 400 feet and 35 miles per hour before reaching the crossing. The engineer said the train could have been stopped in about 350 feet at 20 miles per hour, in about 400 feet at 25 miles per hour (we do not understand these estimates to allow for reaction time) and that it actually was stopped between 500 and 600 feet after the brakes were applied about 50 to 75 feet south of the crossing. The engine was about at that point, when the fireman, on the left side of the engine, called to the engineer (who was on the other side and could not see Janssens approaching) to stop. The fireman said Janssens was then 18 or 20 feet from the track. He said he saw Janssens make a left turn from the Highway at about 10 miles per hour when the train was 600 feet south of the crossing; that he then slowed down to about three to five miles per hour giving the appearance of coming to a stop; but that when 18 to 20 feet from the track he speeded up and went on the crossing so that the engine struck the front part of the truck. He said the truck came straight toward the track and did not appear to be skidding or sliding.
However, plaintiffs' witness, Mull, who said he was driving south on Highway 71, testified he saw the truck turn east from the Highway at about 8 mile per hour and immediately start skidding. He said it slowed down a little (to about 5 miles per hour) before the collision. He further described its movements as follows: He further stated that he saw the train about 450 feet south of the crossing about the same time he saw the truck turn in (he estimated the speed of the train then at 20 miles per hour and said it increased to 30); and that he stopped his car and got out because he 'was sure there was going to be a collision.' He said he was driving 25 to 30 miles per hour about 350 feet from the gravel road when he saw the train and that he stopped about 100 feet north of the road and was out of his car eight or ten seconds before the collision occurred. He also said the truck was 15 or 20 feet into the roadway when he came to a stop. All of the evidence tends to show that the engine was whistling for the crossing.
Defendant cites such cases as Wolverton v. Kurn, 348 Mo. 908, 159 S.W.2d 638; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284; Taylor v. Missouri, K. & T. R. Co., Mo.Sup., 212 S.W.2d 412; Hutchinson v. Thompson, Mo.Sup., 175 S.W.2d 903; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Stark v. Berger, 344 Mo. 170, 125 S.W.2d 870; and Flint v. Chicago, B. & Q. R. Co., Mo.Sup., 207 S.W.2d 474. In these cases, we held that the plaintiff did not make a submissible case on stopping or slackening speed. Defendant argues this on Mull's estimate of distances. His estimates of time and distances were somewhat what inconsistent. (If the train was only 450 feet from the crossing when the truck was turning into the roadway, he could hardly have driven 250 feet, stopped, got out and stood 8 or 10 seconds before the train reached the crossing.) However, these were only estimates and not conclusive. Defendant's fireman said the train was 600 feet from the crossing when the truck turned into the roadway. If it started skidding 'just as soon as he drove in there', as Mull said it did and as the jury could have found, then the jury could reasonably have found that Janssens' obliviousness or helplessness, and imminent peril therefrom, should have been apparent to the fireman in time for him to have thereafter informed the engineer so that (instead of continuously increasing speed) he could have slackened speed sufficiently to have permitted Janssens to escape. (Failure to slacken speed was the only charge of negligence submitted.) This case is more like the muddy road cases in which we held that the evidence was sufficient to show obliviousness of a driver attempting to cope with such conditions. Womack v. Missouri Pacific R. Co., 337 Mo. 1160, 88 S.W.2d 368; Hencke v. St. Louis & Hannibal R. Co., 335 Mo. 393, 72 S.W.2d 798; Willhauck v. Chicago, R. I. & P. R. Co., 332 Mo. 1165, 61 S.W.2d 336. We, therefore, hold that plaintiffs made a case for the jury.
The Court ordered a new trial 'on the ground that the Court was in error in giving defendant's Instructions 4, 5 and 6', which were as follows:
'4--The Court instructs the jury that the engineer or fireman in charge of a locomotive running a train upon seeing a motor vehicle approaching a crossing shile such motor vehicle is still in a place of safety and at such distance from the crossing as to yet allow the driver a reasonable time to stop before going upon the crossing in front of such train is entitled to assume that the driver of such motor vehicle will stop before going upon a crossing and into danger of being struck by such train; and the court further instructs you that neither the engineer nor fireman on the train is under any duty to blow the whistle or attempt to stop or slacken the speed of the train until he sees, or in the exercise of ordinary care should see, that such motor vehicle is not going to stop and is in a position of danger.
'In this connection the court further instructs you that if you find and believe from the evidence that as soon as it was apparent to the fireman or engineer on the train or would have been apparent to a reasonably prudent and careful fireman or engineer under such circumstances that the automobile truck driven by the deceased was in a position of imminent peril it was then too late for the fireman and engineer in the exercise of ordinary care, with the means and appliances at hand and with safety to the train and passengers thereon, to slacken the speed of the train in time to avoid a collision, then plaintiffs are not entitled to recover and your verdict should be in favor of the defendant.'
'5. By the terms 'imminent peril' and 'position of imminent peril' as used in these instructions the court has reference to a perilous situation that is imminent and immediately impending, and which allows no time for deliberation on the part of the person in peril between its appearance and the impending collision. It does not mean a remote, uncertain or contingent danger, or one which was thereafter avoidable on the part of the deceased.
'In this case you are instructed that the deceased was not in a position of imminent peril until he reached a position where under the conditions and circumstances then and there existing the fireman or engineer on the engine in the exercise of ordinary care could and should have seen the truck being driven by the deceased and should have realized that the driver thereof would not or could not stop said truck or change its course before coming onto the railroad crossing mentioned in evidence and into the path of the train.'
'6. The court instructs the jury that if you find and believe from the evidence that the sole cause of the collision mentioned in evidence ...
To continue reading
Request your trial
-
Welch v. McNeely
...of the basic facts of plaintiff's humanitarian submission". Colvin v. Mills, 360 Mo. 1181, 232 S.W.2d 961, 966(3); Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, 750(8). Although sometimes expressed in slightly different language, cf. State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W......
-
Lafferty v. Wattle, 7957
...treated as approximations, not as absolutes [Caffey v. St. Louis-San Francisco Ry. Co., Mo.App., 292 S.W.2d 611, 617; Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, 745; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853, 856], and the jury is entitled to take the whole circumstances, correlate......
-
Downing v. Dixon
...by his evidence) which would disprove one or more of the basic facts of plaintiff's humanitarian submission.' Janssens v. Thompson, 360 Mo. 351, 362, 228 S.W.2d 743, 750(8); Colvin v. Mills, 360 Mo. 1181, 1188, 232 S.W.2d 961, 966(3); Welch v. McNeely, supra, 269 S.W.2d loc. cit. 876(4). Bu......
-
Williams v. Kaestner, 30315
...court is discussing the instruction. For example, in the See case, the court at loc. cit. 831 states: 'Plaintiff cited Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, loc. cit. 746, as authority. What was said in that case seems to us to be authority against plaintiff's contention that t......