Lamoreux v. St. Louis-San Francisco Ry. Co.

• Decision Date: 05 November 1935
• Citation: 87 S.W.2d 640,337 Mo. 1028
• Parties: Hulda Lamoreux v. St. Louis-San Francisco Railway Co., a Corporation, Appellant
• Court: Missouri Supreme Court

87 S.W.2d 640

337 Mo. 1028

Hulda Lamoreux v. St. Louis-San Francisco Railway Co., a Corporation, Appellant

Supreme Court of Missouri

November 5, 1935

Rehearing Denied November 5, 1935.

Appeal from Jackson Circuit Court; Hon. C. Jasper Bell Judge.

Reversed and remanded.

E T. Miller, Joseph W. Jamison, Henry S. Conrad, L. E. Durham, Hale Houts and I. M. Lee for appellant.

(1) The issues of fact and the ruling of the Court of Appeals. Cash v. Sonken-Galamba Co., 322 Mo. 354; Lamoreux v. Ry. Co., 73 S.W.2d 333. (2) The court erred in giving plaintiff's Instruction 1. (a) The instruction in authorizing recovery under the humanitarian doctrine upon the theory that deceased was in imminent peril as he "approached and attempted to cross the track" and that defendant by the exercise of ordinary care could have saved him, was without support in the evidence. Banks v. Morris & Co., 302 Mo. 267; Ziegelmeier v. Ry. Co., 51 S.W.2d 1029, 330 Mo. 1017; Boyd v. Ry. Co., 105 Mo. 371; State ex rel. Frisco v. Reynolds, 289 Mo. 479; Clark v. Ry. Co., 319 Mo. 879; Cavey v. Ry. Co., 55 S.W.2d 439, 331 Mo. 885; McGowan v. Wells, 324 Mo. 663; Bollinger v. Ry. Co., 334 Mo. 728; Shepherd v. Ry. Co., 72 S.W.2d 987; Dutcher v. Railroad Co., 241 Mo. 164; Pope v. Railroad Co., 242 Mo. 240; Highfill v. Wells, 16 S.W.2d 103; Schupback v. Meshevsky, 300 S.W. 467; Weltner v. Bishop, 171 Mo. 116; Dyrez v. Railroad Co., 238 Mo. 47; Burge v. Railroad Co., 244 Mo. 102; Sullivan v. Railroad Co., 317 Mo. 1009, 297 S.W. 950; State ex rel. v. Bland, 313 Mo. 254; Rollison v. Railroad Co., 252 Mo. 541; Markowitz v. Railroad Co., 186 Mo. 359; Lamoreux v. Ry. Co., 73 S.W.2d 324. (b) The instruction erroneously assumed that defendant "could and would" by the exercise of ordinary care have known that deceased was in a position of imminent peril. Haines v. Bridges Asphalt Paving Co., 55 S.W.2d 434. (c) The instruction was further erroneous in submitting the failure to slacken speed of the train in the alternative with failure to stop as a ground of actionable negligence authorizing a verdict. Sevedge v. Railroad Co., 53 S.W.2d 287; Lackey v. Ry. Co., 288 Mo. 147; Sullivan v. Railroad Co., 317 Mo. 1009; State ex rel. v. Bland, 313 Mo. 254; Burge v. Railroad Co., 244 Mo. 102; Rollison v. Railroad Co., 252 Mo. 541; Markowitz v. Railroad Co., 186 Mo. 359; Cervillo v. Manhattan Oil Co., 226 Mo.App. 1115; Driscoll v. Wells, 29 S.W.2d 51. (3) The court erred in refusing defendant's Instruction B directing a verdict for the defendant at the close of all the evidence. The court similarly erred in refusing defendant's instructions D-5 and D-6. Bird v. Ry. Co., 78 S.W.2d 391; Degonia v. Ry. Co., 224 Mo. 588; State ex rel. v. Ellison, 270 Mo. 653; Kitchen v. Mfg. Co., 323 Mo. 1197; Gandy v. Bondurant, 332 Mo. 892; Pevesdorf v. Light & Power Co., 333 Mo. 1172; Authorities 2 (a) and (c), supra. (4) The court erred in refusing defendant's Instruction D-1. The instruction was supported by abundant evidence and, under the facts hypothesized, defendant, as a matter of law was not chargeable with knowledge that deceased was in imminent peril in time to have averted the accident. Boyd v. Ry. Co., 105 Mo. 371; State ex rel. Frisco v. Reynolds, 289 Mo. 479; Clark v. Ry. Co., 319 Mo. 879; McGowan v. Wells, 324 Mo. 663; Cavey v. Ry. Co., 55 S.W.2d 439, 331 Mo. 885; Bollinger v. Ry. Co., 334 Mo. 728; Shepherd v. Ry. Co., 72 S.W.2d 987; Lamoreux v. Ry. Co., 73 S.W.2d 324; Allen v. St. Louis Transit Co., 183 Mo. 435; Everhart v. Bryson, 244 Mo. 517; Authorities 2 (a). (5) The court erred in refusing Instruction D-10. Deceased was aware of the train. Banks v. Morris & Co., 302 Mo. 267; Walradt v. Ry. Co., 48 S.W.2d 96; Authorities 4, supra.

Atwood, Wickersham & Chilcott and E. H. Gamble for respondent.

(1) Even if our Instruction 1 should not have included the approach of deceased to track 1 as within the zone of peril it did require the jury to find, in the conjunctive, that both the approach and the attempt to cross were perilous, thereby requiring the jury to resolve both issues in our favor; and if there is evidence to support only one, the error is against us, and gives defendant no ground for complaint. Moyer v. Railroad Co., 198 S.W. 839; Callicotte v. Railroad Co., 204 S.W. 529; Turnbow v. Ry. Co., 211 S.W. 41; McIntyre v. Railroad Co., 227 S.W. 1047; Wolfe v. Payne, 241 S.W. 915; McKenzie v. Randolph, 257 S.W. 126, reversing St. L. App. 1922, 238 S.W. 828; Webster v. Shoe Co., 18 S.W.2d 131; Gorman v. Showcase Works, 19 S.W.2d 559; McClellan v. K. C. Pub. Serv. Co., 19 S.W.2d 902; State ex rel. Kibble v. Bank, 22 S.W.2d 185; Hamilton v. Oil Co., 19 S.W.2d 679; Grasher v. K. C. Pub. Serv. Co., 35 S.W.2d 645; Berry v. Railroad Co., 43 S.W.2d 782; Grubbs v. K. C. Pub. Serv. Co., 45 S.W.2d 71; Williams v. Pub. Serv. Co., 54 S.W.2d 764; Davis v. Roth, 65 S.W.2d 172; Rytersky v. O'Brine, 70 S.W.2d 538; Brown v. Callicotte, 73 S.W.2d 190; Burrow v. St. L. Pub. Serv. Co., 79 S.W.2d 478. (3) If deceased got in front of the engine when it was so close that it was bound to strike him, then the jury had the right to find that the zone of peril included some part of the space which he traversed in approaching the track; and as defendant through Bowman, its lookout, saw or could have seen the approach in time to stop or reduce speed, the inclusion of the approach in our No. 1 was justified. Strauchon v. St. Ry. Co., 135 S.W. 14; Zumwalt v. Railroad Co., 266 S.W. 717; State-R. Co. v. Trimble, 260 S.W. 1000; Allen v. Railroad Co., 281 S.W. 737; Dutton v. Railroad Co., 297 S.W. 718; Burke v. Pappas, 293 S.W. 146; Gann v. Railroad Co., 6 S.W.2d 39; Thompson v. Railroad Co., 18 S.W.2d 401; Kloeckener v. St. L. Pub. Serv. Co., 53 S.W.2d 1043; Homan v. Railroad Co., 70 S.W.2d 869; Brown v. Callicotte, 73 S.W.2d 190; Collins v. Beckman, 79 S.W.2d 1052; Tocco v. Kenny Co., 269 S.W. 928; Larkin v. Wells, 278 S.W. 1087; Erxleben v. Kaster, 21 S.W.2d 195; Cain v. St. L. Pub. Serv. Co., 59 S.W.2d 734; Niederhelm v. Railroad Co., 68 S.W.2d 895. (4) Our recovery instruction is not erroneous through failure to require the jury to find that deceased was oblivious. Banks v. Morris, 257 S.W. 482; Zumwalt v. Railroad Co., 266 S.W. 717; Thompson v. Railroad Co., 18 S.W.2d 401; Millhouser v. K. C. Pub. Serv. Co., 55 S.W.2d 673. (5) Where, as in our No. 1, the instruction authorizes the jury to fix the point where the peril arose from the evidence, it is not misleading as to the width of the zone of peril. The width of the zone is not for the court, but for the jury. Zumwalt v. Railroad Co., 266 S.W. 717; Kloeckener v. St. L. Pub. Serv. Co., 53 S.W.2d 1043; Homan v. Railroad Co., 64 S.W.2d 617; Homan v. Railroad Co., 70 S.W.2d 868; Cain v. St. L. Pub. Serv. Co., 59 S.W.2d 734. (6) Defendant's given Instruction C is the counterpart of our No. 1; it assumes that it was for the jury to say whether the zone of peril included the approach of deceased to the track. It bars defendant from contending that our No. 1, by including the approach in the zone of peril, broadened the evidence. Phillips v. Railroad Co., 226 S.W. 863; Fowkes v. Fleming, 17 S.W.2d 511; Meyers v. Drake, 24 S.W.2d 116; Cole v. Railroad Co., 61 S.W.2d 344; Johnson v. Railroad Co., 64 S.W.2d 674; Primmer v. Car Co., 20 S.W.2d 587; Alewel v. Railroad Co., 26 S.W.2d 869; Hill v. Railroad Co., 40 S.W.2d 741; Baries v. Packing Co., 46 S.W.2d 952; Waters v. Life Assn., 50 S.W.2d 183; Scroggins v. Miller, 80 S.W.2d 724. (7) Our Instruction 1 is not erroneous in submitting failure to stop, together with failure to reduce speed, in the alternative. Distinguishing: Lackey v. Railroad Co., 288 Mo. 120, 231 S.W. 956; Driscoll v. Wells, 29 S.W.2d 50; Sevedge v. Railroad Co., 53 S.W.2d 284; Pryor v. Payne, 263 S.W. 982; Gann v. Railroad Co., 6 S.W.2d 39; Kloeckener v. St. L. Pub. Serv. Co., 55 S.W.2d 1043; State ex rel. St. L. P. S. Co. v. Becker, 66 S.W.2d 141; Homan v. Railroad Co., 64 S.W.2d 617; Homan v. Railroad Co., 70 S.W.2d 868; Rice v. Bridge Co., 180 S.W. 995; Moore v. Frisco, 267 S.W. 945. (8) Our instruction did not assume that defendant "could and would" by the exercise of ordinary care have known that deceased was in imminent peril, but expressly required the jury to find such fact from the evidence. Haines v. Bridges Asphalt Co., 55 S.W.2d 431. (9) Defendant's motion for new trial contains no general assignment of error in the refusal of instructions, and in its specific assignments the motion does not mention the refused Instruction D-1. Hence, it cannot complain of such refusal on appeal. Scrivner v. Railroad Co., 169 S.W. 83; Matthews v. Central Coke & Coal Co., 177 S.W. 650; Davenport v. Silvey, 178 S.W. 168; Wynne v. Wagoner Undertaking Co., 204 S.W. 15; Arcadia Timber Co. v. Harris, 285 S.W. 428; Adams v. Kendrick, 11 S.W.2d 16; Wilhite v. Armstrong, 43 S.W.2d 422; Sullivan v. Elec. Co., 56 S.W.2d 97. (10) The trial court was right in refusing defendant's Instruction D-1 for the following reasons: (a) It bars recovery even though the trainmen could have saved deceased, and thereby introduces the defense of contributory negligence, which is not admissible under the humanitarian rule. Ellis v. Railroad Co., 138 S.W. 23; Schulz v. Smercina, 1 S.W.2d 113; Thompson v. Railroad Co., 18 S.W.2d 401; Silliman v. Laundry Co., 44 S.W.2d 159; Willhauck v. Railroad Co., 66 S.W.2d 337; Mott v. Railroad Co., 79 S.W.2d 1057. (b) D-1 directs a verdict for defendant, by employment of the expression "immediately in front of the engine" which is ambiguous and is not equivalent to saying "so closely in front of the engine that it could not be stopped," etc., hence, is erroneous and was rightly refused. Perry v. Fleming, 296 S.W. 167; Boyd v. Railroad Co., 16 S.W. 909; State ex rel. Ry. Co. v....