Jurgens v. Thompson

• Decision Date: 04 January 1943
• Docket Number: 38115
• Parties: Harry G. Jurgens, Respondent, v. Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

169 S.W.2d 353

350 Mo. 914

Harry G. Jurgens, Respondent, v. Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a Corporation, Appellant

No. 38115

Supreme Court of Missouri

January 4, 1943

Rehearing Denied March 25, 1943.

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Remanded (with directions).

Thos J. Cole for appellant.

(1) The facts of this case are not sufficient to justify submission to a jury under any theory and show that no case can be made. The court erred in not giving appellant's offered demurrers to the evidence, (a) because of plaintiff's negligence as a matter of law, (b) because of deceased's negligence as a matter of law. McFadden v. Baldwin, 119 S.W.2d 36; Wren v. Chicago, B. & Q. Ry. Co., 44 S.W.2d 241; Schaub v. Kansas City So. R. Co., 133 Mo.App. 444; Leapard v. Kansas City Rys. Co., 214 S.W. 268; Burge v. Railroad, 244 Mo. 76; Nichols v. Chicago & A. R. Co., 250 S.W. 627; Newton v. Railroad, 152 Mo.App. 167; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 362. (2) Where no case is made for the jury it matters not whether there is or is not error in giving or refusing other instructions and the court erred in not so holding. Johnson Grain Co. v. C., B. & Q. R. Co., 164 S.W. 182; United Const. Co. v. St. Louis, 69 S.W.2d 639; Frees v. Hosack, 119 S.W.2d 460. (3) Even if a case had been made for the jury, the court erred in holding that his action in giving Instruction 3 was reversible error, justifying his granting a new trial.

Mark D. Eagleton and Donald Gunn for respondent.

The court did not err in overruling defendant's demurrer to the evidence, as neither the plaintiff nor the deceased was guilty of contributory negligence, as a matter of law. State ex rel. v. Shain, 346 Mo. 681, 143 S.W.2d 233; Davis v. Stamper, 347 Mo. 761, 148 S.W.2d 765; Carson v. Baldwin, 346 Mo. 984, 144 S.W.2d 134; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Smith v. St. Louis-S. F. Ry. Co., 321 Mo. 105, 9 S.W.2d 939; Boland v. St. Louis-S. F. Ry. Co., 284 S.W. 141; Thompson v. St. Louis-S. F. Ry. Co., 334 Mo. 958, 69 S.W.2d 936; Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 964; Gorman v. Franklin, 117 S.W.2d 289; Gorman v. Merchants Bridge Co., 325 Mo. 326, 28 S.W.2d 1023; Perkins v. Kansas City Ry. Co., 329 Mo. 1190, 49 S.W.2d 103; Sisk v. C., B. & Q. Ry. Co., 67 S.W.2d 830; Holman v. Terminal R. Assn., 125 S.W.2d 527. (2) Defendant's given Instruction 3 was erroneous and the trial court properly so held in sustaining plaintiff's motion for a new trial. Fassi v. Schuler, 159 S.W.2d 774; Stanich v. Western Union Tel. Co., 153 S.W.2d 54; Shields v. Keller, 153 S.W.2d 60; Wilson v. Terminal R. Assn., 121 S.W.2d 232.

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

OPINION

WESTHUES

Respondent Jurgens instituted this suit against appellant, Missouri Pacific Railroad Company, seeking $ 10,000.00 as damages for the death of his wife, alleged to have been caused through the negligence of the railroad company. A trial resulted in a verdict for the defendant. Plaintiff's motion for a new trial was sustained and defendant railroad company appealed.

The trial court sustained the motion for new trial on the theory that instruction number three, given at defendant's request, was erroneous. Appellant, on this appeal, has devoted the major portion of its brief to the question of whether plaintiff's evidence was sufficient to make a case for a jury. It is earnestly insisted that the deceased and plaintiff were guilty of contributory negligence as a matter of law. Plaintiff's wife met her death on October 8, 1938, at Eureka, Missouri, in a grade crossing collision of a car in which she was a passenger and one of defendant's trains. The car involved was a 1930, Nash coach. Floyd Jackson was in the front seat with William Sicking, the driver of the car, and plaintiff and his wife were occupying the rear seat, plaintiff's wife being seated directly behind the driver. They were on their way from St. Louis to a club house on Big river, south of Eureka, where they were to be joined by other parties for an outing. The main tracks of the defendant railroad and those of the Frisco run parallel east and west through the town of Eureka where they cross Central avenue at grade. Each company maintains three tracks and at this point the Frisco's tracks are south of those of defendant. It was conceded that a watchman had been stationed at the crossing whose duty it was to warn travelers on the highway of the approach of trains by holding up a stop sign. Immediately north of the tracks is a public road running east and west which also intersects the highway upon which the car in question was traveling. All of the parties in the car knew of the crossing and also of the duties of the watchman, having passed over this crossing many times. The car was being driven south on Central avenue toward the crossing at an estimated speed of ten to twenty miles per hour. Houses on each corner of the intersection obstruct the view of on-coming trains up to a point about seventy-five or eighty feet from the defendant's tracks, but from that point up to the tracks the view is unobstructed in both directions for more than a mile. The collision occurred on the middle track and the car was struck by a train traveling east. Sicking, the driver, testified that he did not look east or west for trains but looked straight ahead. Note his evidence when asked why he did not look for trains:

"A. Well, I have been there for quite a good many times and I usually depend upon the watchman there, as long as there is no watchman there, like everyone else does there, they all -- just as long as the watchman ain't there to put up the sign, they just keep on going. It seems like that is the way everyone drives. They depend upon the watchman."

Mr. Jackson, who was in the front seat with Sicking, saw the train. Note his evidence:

"Well, owing to the tremendous smoke coming from the stack, and the dust flying, it was quite evident that something was coming towards us, and being of the nature that I am, probably a little bit more in advance to other people in avoiding accidents, I immediately got out of the car, jumped out of the car, and hollered to the rest of the boys, I think something like 'You better get out,' or 'you better get out of the car.' Anyway, I don't know what I hollered."

This witness testified that as he jumped from the car he saw the driver reach for the emergency brake; that the car was then forty or fifty feet from the railroad tracks and traveling about fifteen or twenty miles per hour. The driver and plaintiff also jumped from the car before the crash, but plaintiff's wife did not and died as a result of the accident. Plaintiff testified on this point as follows:

"Well, we started to go down Central avenue, which we had done several times before and of course, we always noticed there was a watchman at the crossing. Of course, I paid no particular attention to that. I was not driving, but as we got close down to the tracks, it seems as though all of a sudden Mr. Jackson says, 'Everybody out' or 'Jump,' or something to that effect and, of course, me sitting in the back seat, I couldn't say whether they were pressing on the brakes or anything else and Mr. Jackson jumped out and I being there I followed Mr. Jackson. It seems Mr. Sicking and I almost met at the door going out and Mr. Sicking eventually got out ahead of me, I imagine. I think he did, and I was trying to assist Mrs. Jurgens, when it appeared to me that the train was right up on us and I just jumped aside to avoid getting hit myself."

Plaintiff also testified that as he was about to jump from the car he saw the watchman raise the stop sign; that at that time the car was about ten feet from the first track. When asked if the car stopped he answered:

"Well, it almost stopped. When I was running alongside of the car, trying to assist Mrs. Jurgens out, I think the car was -- was just barely moving. I have been under that impression and still am."

Appellant introduced evidence of a conversation between plaintiff and Sicking alleged to have occurred at the scene of the collision. A witness testified that she heard Jurgens, plaintiff, say to Sicking, "Oh, my God, why didn't you turn up the side road like I asked you to, we tried to get you to stop, we tried to get you to stop." That Sicking answered, "Oh, my God, Harry I don't know -- I don't know why I didn't do it." The case was submitted to the jury on the single charge that the defendant's watchman was guilty of negligence in failing to give timely warning of the approaching train.

We are of the opinion that the evidence above set forth was sufficient to sustain a verdict for plaintiff; that it was sufficient for a jury to find that the watchman failed in his duties and that such failure contributed to the collision also, that plaintiff and the deceased were not guilty of contributory negligence as a matter of law. Granting for the sake of argument that the driver of the car was negligent, his negligence cannot be imputed to plaintiff and the deceased. Appellant does not so contend. As to the question of the contributory negligence of plaintiff and deceased it must be remembered that the collision occurred within four or five seconds after the train was discoverable. Three of the occupants jumped from the car, including plaintiff. It is in evidence that the deceased, being in the back seat, could not get out until those in the front seat had left the car. The passengers were charged with only ordinary care and the defendant's evidence disclosed that they attempted to have the driver stop or turn up the road north of the tracks. All of this must have occurred within four or five seconds. It is...