Knorp v. Thompson

• Decision Date: 14 June 1948
• Docket Number: 40482
• Parties: Molly Knorp v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

212 S.W.2d 584

357 Mo. 1062

Molly Knorp v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, Appellant

No. 40482

Supreme Court of Missouri

June 14, 1948

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Reversed.

Thomas J. Cole, James A. Potter, Leon P. Embry and Forrest P. Carson for appellant.

(1) The burden of proof, under the humanitarian doctrine as in other cases, is on the plaintiff. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Shepherd v. C., R.I. & P.R Co., 335 Mo. 606, 72 S.W.2d 985. (2) Plaintiff did not show that the fireman had the means and appliances at hand for sounding emergency warnings; and such a showing is an element of the humanitarian doctrine without which no case is made. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Hall v. Baldwin, 90 S.W.2d 146; Zickfoose v Thompson, 347 Mo. 579, 148 S.W.2d 784. (3) There was no evidence that the engineer was not sounding the whistle so as to make the means and appliances for doing so available to the fireman. The only evidence respondent has on which to rely is that of witness Ehlert. He testified that he did not hear the train whistle; but he further testified that, in wondering about the truck, he did not realize that he had heard no whistle; that he would not say that the train did not whistle; that he was paying no attention to whether or not it whistled; that his whole thought, mind and attention, were focused on the truck and he was paying no attention to whether the train whistled; that he did not hear the crash of the collision two hundred fifty or three hundred feet from him; that he did not even hear the noise of the train going by at sixty or sixty-five miles per hour about forty feet from him; and that he was in such a state of mental excitement that he does not remember whether the train whistled or not. Such evidence is not sufficient to make such a question. McCreery v. United Rys. Co., 221 Mo. 18; Darby v. Henwood, 346 Mo. 1204, 145 S.W.2d 376; Connole v. Ry. Co., 21 S.W.2d 907; Bennett v. Ry. Co., 122 Mo.App. 703; Dodd v. Ry. Assn., 108 S.W.2d 982.

Fred Wesner, Guy W. Green and Trusty & Pugh for respondent.

(1) The trial court properly overruled appellant's motion for directed verdict at the close of all the evidence because the evidence was the same as that in the companion case of Hutchison v. Thompson, 175 S.W.2d 903, in which the Supreme Court of Missouri held that such evidence made a submissible case for the jury. Hutchison v. Thompson, 175 S.W.2d 903; Knorp v. Thompson, 175 S.W.2d 889; Denny v. Guyton, 57 S.W.2d 415; Sheppard v. Travelers Protective Assn. of America, 124 S.W.2d 528; Riss & Co. v. Wallace, 195 S.W.2d 881. (2) The trial court properly gave plaintiff's Instruction 1 because it properly hypothesized the ability of the fireman to give emergency blasts of the whistle. Gayle v. Missouri Car & Foundry Co., 177 Mo. 427, 76 S.W.2d 987; Bowman v. Moore, 167 S.W.2d 675. (3) Instruction 1 did not erroneously hypothesize the ability of the fireman to cause emergency blasts of the whistle to be given. Adams v. Thompson, 178 S.W.2d 779.

Douglas, P.J. Conkling, Clark and Hyde, JJ., and Leedy, C.J., concur: Ellison, J., dissents in separate opinion; Tipton, J., not sitting.

OPINION

DOUGLAS

Plaintiff has sued because of the wrongful death of her husband who was killed when a Missouri Pacific train operated by defendant trustee struck the truck in which he was riding at Elkhorn crossing, about one-half mile west of California, Missouri. She recovered judgment for $ 4,000. Defendant appealed to the Kansas City Court of Appeals which affirmed the judgment on the strength of the decision of this court in a companion case (Hutchison v. Thompson, infra), but transferred the case here for a reexamination of the issues of law as authorized by Article V, Section 10 of the Constitution on 1945.

This case and its companion have been in both the court of appeals and this court before, so we need not set out all the facts in detail. For a complete recitation of them see Knorp v. Thompson (Mo. App.), 167 S.W.2d 105; 352 Mo. 44, 175 S.W.2d 889; and Hutchison v. Thompson (Mo. App.), 167 S.W.2d 96; (Mo. Sup.), 175 S.W.2d 903.

The case was submitted to the jury under the humanitarian doctrine on the issue of warning. This issue as framed was not the familiar, simple one whether or not a whistle was sounded, but went farther and detailed the very manner in which the whistle should have been sounded. The jury was instructed it was the duty of defendant to give a warning by sounding "emergency or short blasts of the whistle" even though a crossing warning was then being given by whistle. In effect by such an instruction the court would announce a rule that a crossing warning being given by whistle is not sufficient, but should be interrupted so that an emergency warning could be sounded by the whistle. In the Hutchison case (175 S.W.2d 903) this court did say: "If the crossing warnings are not sounded, or if sounded are ineffective, emergency warnings, short rapid blasts, should be given," relying on Bebout v. Kurn, 348 Mo. 501, 154 S.W.2d 120.

The Bebout case was submitted on defendant's failure to sound emergency warnings, or "short toots" of the whistle; defendant claiming that the usual crossing warning was continuously sounded up to the time of the collision, that is "two longs and a short and a long whistle." In considering this issue we said: "Appellants say emergency warning signals would have done no good, and therefore the failure to give them was not a proximate cause of the casualty. This contention is based mainly on the theory that the crossing signals sounded continuously over nearly 160 rods were just as good, citing Blackwell v. U.P.R. Co., 331 Mo. 34, 42, 52 S.W.2d 814, 816(3). But as we have said, there was substantial evidence that the latter were not given, and if the jury so found then the emergency signals were all the more necessary."

Thus, the essential issue in both the Hutchison and Bebout cases was whether or not any warning whistle was given, and we held in both cases a prima facie case for the jury was made on this issue. In the Bebout case there was testimony of witnesses, including the conductor of the train, that they heard no whistle of any kind sounded.

The record in the Bebout case showed that an "emergency" warning by whistle would be no louder and would make no more noise than the customary crossing warning by whistle.

We do not believe that even the humanitarian doctrine requires a specific type of warning to be sounded on the whistle. The most it requires is the sounding of the whistle in some sufficient manner if other warnings, such as by bell, lantern, or otherwise, are not sufficient under the circumstances. It is the use of the whistle, not the manner of its use, which is required. If the Bebout and Hutchison cases hold otherwise, they should not be followed.

The issue whether an "emergency" warning was required instead of the usual crossing warning was considered in Camp v. Kurn, 235 Mo.App. 109, 142 S.W.2d 772, and the court appropriately said: "There is little or no conflict in the evidence. It is undisputed that as the train approached the crossing where the collision is alleged to have occurred, the bell was ringing, the station whistle was sounded, followed by the usual crossing signal, which continued up until the train hit the truck. It is a matter of common knowledge that a crossing whistle is a warning to pedestrians and drivers of vehicles of an approaching train and that they should remain off of and away from such crossing until the train has passed over and cleared same. The very object and purpose of the crossing whistle is to warn traffic of every kind that a train is about to pass over such crossing and the dangers incident thereto. Such whistle was sufficient warning . . ."

This court said in Zumwalt v. C. & A.R. Co. (Mo.), 266 S.W. 717 that we had often held that enginemen must give an "emergency whistle" if by due care they can do so to warn "travelers in peril approaching a public crossing", citing a number of cases. But an examination of the cases cited discloses that we did not intend to prescribe the manner in which the whistle should be sounded such as by giving repeated sharp toots. We meant only the whistle should be used. For instance, in Logan v. C.B. & Q.R. Co., 300 Mo. 611, 254 S.W. 706 the evidence showed the whistle had been sounded for a previous street crossing in the City of Hannibal and had stopped blowing before reaching the crossing where the collision occurred and no further warning by whistle was given. There was some testimony about an automatic signal bell at that crossing but the court held that the railroad was "duty bound to give him [plaintiff] an emergency whistle or apply the emergency brake to slacken or stop the train. . ." And in Dutcher v. Wabash R. Co., 241 Mo. 137, 145 S.W. 63 we pointed out the means at hand for preventing injury by a train were "bell, whistle and ability to stop. In some cases the monotonous stroke of the bell might be due care. In others, easily put, the alarm whistle timely used might be due care." By the use of the term "alarm whistle" we did not intend to prescribe the precise manner in which the whistle must be sounded but must have meant that since the whistle is louder than the bell due care under the circumstances of that case might require the whistle to be sounded instead of the bell. Again, in Rollison v. Wabash R. Co., 252 Mo. 525, 160 S.W. 995, we followed the same reasoning. There the court pointed out that the statute required a warning at a crossing by either bell or whistle, not by both. But under the humanitarian rule, and...