Kick v. Franklin

• Decision Date: 06 March 1940
• Docket Number: 36434
• Parties: Frank Kick v. Walter Franklin and Frank C. Nicodemus, Jr., Receivers of the Wabash Railway Company, Appellants
• Court: Missouri Supreme Court

137 S.W.2d 512

345 Mo. 752

Frank Kick v. Walter Franklin and Frank C. Nicodemus, Jr., Receivers of the Wabash Railway Company, Appellants

No. 36434

Supreme Court of Missouri

March 6, 1940

Motion for Rehearing Overruled January 23, 1940.

Motion to Transfer to Banc Overruled March 6, 1940.

Appeal from Boone Circuit Court; Hon. W. M. Dinwiddie Judge.

Affirmed.

Homer Hall, Clark, Boggs, Peterson & Becker and Howard B Lang, Jr., for appellants.

(1) In a humanitarian negligence case, the plaintiff has the burden of proving not only that the defendant negligently failed to act after actual or constructive knowledge of plaintiff's peril, but also that action by the defendant, after realization of plaintiff's peril, would have prevented injury to the plaintiff. In other words, the burden rests upon the plaintiff not only to prove humanitarian negligence but also that such negligence was the proximate cause of the plaintiff's injury. Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 484. (a) The burden of proof is not shifted by the statute, Section 4756, Revised Statutes 1929, Mo. Stat. Ann., page 2133. Gann v. C., R. I. & P. Ry. Co., 319 Mo. 214, 6 S.W.2d 39; Toeneboehn v. St. L. S. F. Ry. Co., 317 Mo. 1096, 298 S.W. 802; McCloskey v. Koplar, 319 Mo. 527, 46 S.W.2d 557; Mockowik v. K. C., St. J. & C. B. Ry. Co., 196 Mo. 550; 5 Wigmore on Evidence (2 Ed.), sec. 2491; Willhauck v. C., R. I. & P. Ry. Co., 332 Mo. 1165, 61 S.W.2d 338; State ex rel. Baldwin v. Shain, 125 S.W.2d 46. (b) The burden of proving proximate cause is not met by evidence of a state of facts which leaves the question of causation to speculation and conjecture, or which requires the drawing of an inference in plaintiff's favor contrary to physical laws and accepted scientific principles. Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Christner v. C., R. I. & P. Ry. Co., 228 Mo.App. 220, 64 S.W.2d 752; Knight v. Wabash Ry. Co., 85 S.W.2d 392; Karr v. C., R. I. & P. R. Co., 108 S.W.2d 51; Ducoulombier v. Thompson, 124 S.W.2d 1110. (c) In a negligence case where the evidence viewed most favorably to the plaintiff is such that an essential element of the plaintiff's case, causation, can be reasonably inferred, it is unnecessary for plaintiff to produce expert testimony as to the fact which may be inferred. In such a case, the court takes judicial notice that under the evidence viewed most favorably to the plaintiff, that judges and jurors may find the essential fact from common experience and knowledge. But in a humanitarian case where the facts are such that the court cannot say of its judicial knowledge that action on the part of the defendant, after realization of peril, would have prevented injury to plaintiff, the plaintiff must produce evidence of this fact, or suffer a directed verdict. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 12; Bowen v. A., T. & S. F. Ry. Co., 256 S.W. 152; McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Kimmie v. Term. Railroad Assn., 334 Mo. 596, 66 S.W.2d 565. (d) As a matter of actuality, the respondent in this case was not in imminent peril until he started to drive toward the tracks after he says he stopped. Since the overhang of the engine was two and one-half feet, and he required one and one-half feet to stop his car, a warning could not have rescued him from injury unless given, appreciated and acted upon before respondent's car came within four feet of the north rail. Therefore, assuming the respondent stopped his car fifteen feet north of the track, the "zone of possible rescue," after imminent peril arose was eleven feet. (e) On reasonable appearances, by force of the same reasoning, the "zone of possible rescue" was less than eleven feet, because some time and space must be allowed for the car to move forward sufficiently to have made it apparent to the engineer that respondent was intent upon driving in front of the train. Smithers v. Barker, 111 S.W.2d 52. Likewise, the court must take judicial notice that an appreciable time is required for the muscular and mechanical actions necessary to the sounding of a steam whistle on a locomotive, for the steam to escape, and for the sound waves to travel from the whistle to the ear of respondent, and for the respondent to perform the muscular and mechanical operations necessary to stop or turn aside his automobile. Stark v. Berger, 344 Mo. 170; Karr v. C., R. I. & P. Ry. Co., 108 S.W.2d 44; McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633. (f) While the court may judicially notice reasonable limits within which it may be found by inference that certain acts may be performed and certain results may occur, the court cannot take judicial notice in this case that an effective warning could have been given and acted on in the time available. Therefore, in the absence of testimony favorable to the respondent that there was sufficient time to give a warning which would have prevented injury to the respondent, the respondent has failed to meet the burden of proving a submissible case. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9; 5 Wigmore on Evidence (2 Ed.), secs. 2565-2583, pp. 567-603. The Chawkley case and the decision on the first appeal. Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 27. The language in the Chawkley case is dictum. McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633; Karr v. C., R. I. & P. Ry. Co., 108 S.W.2d 44. Under the principles relating to the doctrine of judicial notice, the Chawkley case is not authority for the same proposition in this case. Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 561; Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 12. Even assuming the truth of the statement in the Chawkley Case, supra, as a matter of judicial notice there would still be a failure of proof on the part of the plaintiff. Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Rollison v. Wabash Ry. Co., 252 Mo. 525, 160 S.W. 994. (g) The statement of this court on the former appeal that under the record there was a submissible case of humanitarian negligence in failing to warn is not conclusive here because the evidence is not the same, and correction of a mistake of fact or law upon an earlier appeal should and will be made on a second appeal. Ducoulombier v. Thompson, 124 S.W.2d 1109; Dunn v. Alton Ry. Co., 340 Mo. 1037, 104 S.W.2d 314; Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20; Hogan v. K. C. Pub. Serv. Co., 322 Mo. 1103, 19 S.W.2d 711, 65 A. L. R. 129. (2) The court erred in giving plaintiff's Instruction 1 because: (a) Plaintiff failed to make a submissible case of humanitarian negligence in failing to warn. (b) The instruction is erroneous, misleading and confusing in that it submits a situation requiring a duty to warn when the plaintiff and his automobile were "coming into and were in a position of imminent peril and danger." Buehler v. Festus Mercantile Co., 119 S.W.2d 970; Perkins v. Terminal Railway Assn., 340 Mo. 868, 102 S.W.2d 915; State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W.2d 420. (c) The instruction is in conflict with defendants' Instruction G submitting sole cause. Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Smithers v. Barker, 111 S.W.2d 53. (3) The court erred in giving respondent's Instruction 4 because: (a) The instruction was misleading and erroneous in requiring a finding against the appellants on the issue of sole cause "if Buhalt was guilty of any negligence whatever, as submitted in the instructions herein." Smithers v. Barker, 111 S.W.2d 47; Mayfield v. K. C. So. Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Christner v. C., R. I. & P. Ry. Co., 228 Mo.App. 220, 64 S.W.2d 757. (b) The instruction was erroneous in requiring a finding against appellants on the issue of sole cause if Buhalt's negligence "contributed to said collision," without requiring that Buhalt's negligence was the proximate cause of the collision. Smithers v. Barker, 111 S.W.2d 47; Counts v. Thomas, 63 S.W.2d 421; Moon v. St. Louis Transit Co., 247 Mo. 227, 152 S.W. 303; Hof v. St. Louis Transit Co., 213 Mo. 468, 111 S.W. 1166. (4) The court erred in refusing appellants' Instruction 4 withdrawing from the consideration of the jury alleged negligence in failing to slacken the speed of the train because the plaintiff injected the issue of failure to slacken into the case in the amended petition and opening statement, and therefore the appellants were entitled to have the issue affirmatively withdrawn by instruction. Kick v. Franklin, 117 S.W.2d 284; Sevedge v. Railroad Co., 331 Mo. 312, 53 S.W.2d 284; State ex rel. v. Shain, 125 S.W.2d 41; Natl. Cash Register v. Kay, 119 S.W.2d 437.

Cowgill & Popham, Guy W. Green, Jr., Mosman, Rogers & Bell and Rubey M. Hulen for respondent.

(1) Defendant's answer admitted all necessary elements of plaintiff's case except that warning could have been and was not given, and it is not contended that there was insufficient evidence of ability and failure to warn. Dickey v. Porter, 101 S.W. 586; Petrie v Reynolds, 219 S.W. 934; Milward v. Wabash Ry. Co., 232 S.W. 226; Schmitter v. United Rys. Co., 245 S.W. 629; Bruns v. United Rys., 251 S.W. 760; Koontz v. Wabash Ry. Co., 253 S.W. 413; Woerheide v. Kelley, 255 S.W. 1064; Hart v. Ry. Co., 265 S.W. 116; Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Grott v. Johnson, etc., Co., 2 S.W.2d 785; Stout v. K. C. Pub. Serv. Co., 17 S.W.2d 363; Allen v. Purvis, 30 S.W.2d 196; Shaw v. Amer. Ins. Union, 33 S.W.2d 1052; Smith v. Weilbacher, etc., Co., 35 S.W.2d 996; Woods v. Moffitt, 38 S.W.2d 525; Fleming v. McMahon Contracting Co., 45 S.W.2d 952; Kratz v. Rally, 47 S.W.2d 221; Womack v. Mo. Pac. Ry. Co., 88 S.W.2d 368; Perkins v. Terminal, 102 S.W.2d 915; Farmers & Traders Bank v. Kendrick, 108...