Kirkpatrick v. Wabash R. Co.

• Decision Date: 12 July 1948
• Docket Number: 40726
• Citation: 212 S.W.2d 764,357 Mo. 1246
• Parties: Vera Kirkpatrick v. Wabash Railroad Company, Appellant
• Court: Missouri Supreme Court

212 S.W.2d 764

357 Mo. 1246

Vera Kirkpatrick v. Wabash Railroad Company, Appellant

No. 40726

Supreme Court of Missouri

July 12, 1948

Appeal from Adair Circuit Court; Hon. Tom Brown, Judge.

Reversed.

Jayne & Jayne for appellant.

(1) Where plaintiff alleges several grounds of negligence, and then instructs on only one, all others are abandoned and therefore if the evidence in this case does not support plaintiff's theory that defendant was guilty of negligence under the humanitarian doctrine in that defendant failed to warn deceased of the approach of defendant's train by use of the whistle after defendant saw, or in the exercise of care could have seen, deceased in a position of peril and thereby have avoided the accident, then defendant's motion for a directed verdict at the close of the case properly raised that issue and plaintiff was not entitled to recover. White v. Kansas City Pub. Serv Co., 193 S.W.2d 60; Guthrie v. St. Charles, 152 S.W.2d 91, 347 Mo. 1175; Sec. 113, Civil Code of Procedure Laws 1943. (2) Every necessary element of a cause of action based on humanitarian negligence must be established by the evidence to justify submission of the case on the humanitarian theory. Gurwell v. Jefferson City Lines, 192 S.W.2d 683. (3) Obliviousness is one of the essential elements of a cause of action where defendant is charged with a failure to warn under the humanitarian doctrine, and where the evidence leaves such an essential element to guess work, conjecture, speculation or surmise, it does not make out a submissible case under the humanitarian doctrine. Hendrick v. Kurn, 179 S.W.2d 717, 352 Mo 848; Swain v. Anders, 140 S.W.2d 730, 235 Mo.App. 125; Alsup v. Henwood, 137 S.W.2d 586. (4) Where deceased approached defendant's crossing at a slow speed and had a clear view of defendant's train had he looked, defendants were entitled to assume that deceased was conscious of his surroundings and knew of the approach of defendant's train until such time as deceased indicated by his actions that he was oblivious to the approach of defendant's train or until such time as defendant realized that such was the case, and it is presumed that deceased saw and heard the approaching train and plaintiff must produce evidence to overcome such presumption. Alsup v. Henwood, 137 S.W.2d 586. (5) Plaintiff's uncontradicted evidence affirmatively shows that deceased was not oblivious to the approach of defendant's train and so plaintiff has failed to make a submissible case on the question of whether or not defendant was guilty of a failure to warn under the humanitarian doctrine and the trial court erred in overruling defendant's motion for a directed verdict at the close of the evidence. Hendrick v. Kurn, supra; Swain v. Anders, supra; Alsup v. Henwood, supra. (6) Plaintiff has failed to produce any evidence showing, or from which it could be inferred, that deceased was oblivious to the approach of defendant's train and therefore when plaintiff's only instruction offered charged defendant with failure to warn under the humanitarian doctrine, the court was in error in not sustaining defendant's motion for a directed verdict. Hendrick v. Kurn, supra; Swain v. Anders, supra; Alsup v. Henwood, supra. (7) One of the essential elements of a case based on the humanitarian doctrine is that the peril must arise and be discovered in time for defendant to avoid the accident. White v. Kansas City Pub. Serv. Co., 193 S.W.2d 60; Ramel v. Kansas City Pub. Serv. Co., 187 S.W.2d 492. (8) Defendant is not required to sound a warning whistle merely because he sees an automobile approaching the track and so long as the automobile is traveling at such a speed that it can be stopped before going on the track and there is nothing in the driver's conduct to indicate that he is unaware of the approaching train, no duty rests on defendant to sound such warning. Thomasson v. Henwood, 146 S.W.2d 88, 235 Mo.App. 1211; Camp v. Kurn, 142 S.W.2d 772, 235 Mo.App. 109. (9) Defendant and its employees had a right to assume that the driver of a truck slowing down from 10 miles an hour to nearly a stop, as it approached defendant's tracks, would stop such truck before entering the danger zone a very few feet from the track. Thomasson v. Henwood, supra. (10) Deceased's truck did not enter a position of peril until it reached the point where it could not be stopped before entering the pathway of defendant's train. Thomasson v. Henwood, supra. (11) Failure of defendant to sound emergency warning or whistle after seeing deceased in position of peril, failed to present a jury question under the humanitarian rule where, after seeing deceased's peril defendant could not have averted a collision. Camp v. Kurn, 142 S.W.2d 772, 235 Mo.App. 109. (12) Plaintiff's uncontradicted evidence in this case affirmatively shows that defendant could not have sounded a warning or averted the collision after deceased entered a position of peril and the trial court erred in overruling defendant's motion for a directed verdict at the close of the evidence. Camp v. Kurn, supra; Thomasson v. Henwood, supra. (13) Plaintiff failed to sustain her burden of proof to show that after deceased entered a position of peril defendants could have sounded a warning and thereby have averted the collision and the trial court erred in failing to sustain defendant's motion for a directed verdict at the close of the evidence. Camp v. Kurn, supra; Thomasson v. Henwood, supra. (14) Where the only evidence tending to establish one of the necessary elements of her cause of action was the testimony of a witness called by plaintiff, it is necessary for the court to consider that testimony as true in its ruling on whether or not defendant's motion for a directed verdict should have been sustained. Rowe v. Henwood, 207 S.W.2d 829; Borrini v. Pevely Dairy Co., 183 S.W.2d 839. (15) Where a party produces a witness to testify in party's behalf he ordinarily vouches for the credibility of said witness' testimony and in the absence of contradictory evidence, is bound thereby and on a motion for a directed verdict may not say that it should not be given such consideration as its natural probative value entitled it to receive. Borrini v. Pevely Dairy Co., supra; Rowe v. Henwood, 207 S.W.2d 829. (16) The only evidence of deceased's obliviousness was the uncontradicted testimony of two witnesses called for plaintiff, and as their testimony affirmatively shows that deceased was not oblivious, plaintiff is bound by that testimony and the court in considering defendant's motion for a directed verdict was bound to consider it as true and therefore erred in failing to direct a verdict for defendant. Rowe v. Henwood, 207 S.W.2d 829; Borrini v. Pevely Dairy Co., supra. (17) The only evidence of defendant's present ability to avoid the accident after deceased entered a position of peril, was the testimony of a witness called for plaintiff, and the trial court was bound to consider such testimony as true, and since it affirmatively showed that defendant did not have the present ability to sound a warning or avoid the accident after deceased entered a position of peril, the trial court erred in overruling defendant's motion for a directed verdict. Rowe v. Henwood, 207 S.W.2d 829; Borrini v. Pevely Dairy Co., supra.

Philip J. Fowler and W. E. Shirley for respondent.

(1) The evidence justifies the inference that, as plaintiff's husband, Delmar Kirkpatrick, approached the place where appellant's railroad track is intersected by Hamilton street, driving a motor truck at a rate of speed of ten miles an hour, he did not slow down or slacken said rate of speed before going upon said railroad track. (2) The jury was authorized to accept as true said testimony as given by the witness Palmer on direct examination and to reject as erroneous his testimony on cross-examination, which was contrary to and in conflict with his said testimony on direct examination. Moore v. Dawson, 220 Mo.App. 791, 277 S.W. 58. (3) The jury was justified in rejecting as unreliable the statement made by Gillespie in his testimony that said Delmar Kirkpatrick "slowed down at the crossing" because, at the time said Kirkpatrick reached said railroad crossing, said Gillespie was directly behind and much more than half a block distant from said moving vehicle, i.e., in no position to discern whether, at said time and place, said motor truck did or did not slow down. Gould v. C., B. & Q. Railroad Co., 300 Mo 611, 274 S.W. 705. (4) It is a matter of general and common knowledge that one who is in a position directly behind a moving vehicle cannot discern its rate of speed, nor any acceleration or diminution in such rate of speed; and accordingly, it is a matter of which judicial notice will be taken. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9. (5) Respondent is not bound by said statement in Gillespie's testimony that the truck "slowed down there at the crossing," for the further reason that said statement constitutes nothing more than a mere estimate as to rate of speed, such testimony being of insufficient probative force, to be regarded as binding or conclusive. Scott v. K.C. Public Service Co., 115 S.W.2d 518. (6) As conceded by appellant in its brief, the evidence shows that "there was a clear view to the south for a distance of 78 feet 6 inches west of the tracks," so that, as Mr. Kirkpatrick drove from the west, moving eastward on Hamilton street toward the railroad crossing where he was killed, his position of imminent and impending peril could have been discerned as soon as he came within said distance (78 1/2 feet) of said railroad crossing. (7) As conceded by appellant in its brief, "there was uncontradicted testimony that deceased with ordinary brakes could have stopped within...