Leavell v. Thompson

• Citation: 176 S.W.2d 854,238 Mo.App. 130
• Parties: Hallie C. Leavell, Respondent, v. Guy A. Thompson, Trustee, Appellant
• Decision Date: 06 December 1943
• Court: Court of Appeals of Kansas

176 S.W.2d 854

238 Mo.App. 130

Hallie C. Leavell, Respondent, v. Guy A. Thompson, Trustee, Appellant

Court of Appeals of Missouri, Kansas City

December 6, 1943

Appeal from Henry Circuit Court; Hon. Dewey P. Thatch, Judge.

Affirmed.

Thos J. Cole, L. J. Bishop, D. C. Chastain and Patterson Chastain & Smith for appellant.

(1) The plaintiff's own contributory negligence bars any recovery for primary negligence. The court erred in refusing to give defendant's Instruction 4. State ex rel. Kurn v Hughes (Mo.), 153 S.W.2d 46; Brown v. Alton R. Co. (Mo. App.), 151 S.W.2d 727; England v. Southwestern Mo. R. Co. (Mo. App.), 180 S.W. 32; Fitzpatrick v. K. C. So. Ry. Co., 347 Mo. 57, 146 S.W.2d 560; Kalbfell v. Wells (Mo. App.), 49 S.W.2d 247; Evans v. Ill. Cent. R. Co., 289 Mo. 493, 233 S.W. 397; State ex rel. Maclay v. Cox, 320 Mo. 1218, 10 S.W.2d 940; Johnson v. Mo. Pac. R. Co. (Mo. App.), 72 S.W.2d 889; Nichols v. Chi. & A. R. Co. (Mo. App.), 250 S.W. 627; Dempsey v. City L. & T. Co. (Mo. App.), 240 S.W. 1093. (2) Neither did the plaintiff make a submissible case under the humanitarian doctrine. There was no time to act after the certain peril of the plaintiff became apparent. Stark v. Beger, 344 Mo. 170, 125 S.W.2d 870; Karr v. C., R. I. & P. Ry. Co., 341 Mo. 536, 108 S.W.2d 44; Edwards v. Terminal R. Assn., 341 Mo. 235, 108 S.W.2d 140; Thomasson v. Henwood, 235 Mo.App. 1211, 146 S.W.2d 88; Neill v. Alton R. Co. (Mo. App.), 113 S.W.2d 1073; Shepherd v. C., R. I. & P. Ry. Co., 335 Mo. 606, 72 S.W.2d 985; Elkin v. St. L. Pub. Ser. Co., 335 Mo. 951, 74 S.W.2d 600. (3) The sole proximate cause of the accident was the ice and snow, and on account thereof plaintiff cannot recover. DeMoss v. K. C. St. Ry. Co., 296 Mo. 526, 246 S.W. 566; Wood v. Wells (Mo.), 270 S.W. 332; Ridge v. Jones, 335 Mo. 219, 71 S.W.2d 713. (4) It was error to give plaintiff's Instruction A because: (a) Statutory negligence in ringing the bell is not set up in the petition, and it is error to submit an issue not pleaded. Krelitz v. Calcaterra (Mo.), 33 S.W.2d 909; Rucker v. Alton R. Co., 343 Mo. 927, 123 S.W.2d 24; State ex rel. Grisham v. Allen, 344 Mo. 66, 124 S.W.2d 1080; Bledsoe v. M. K. & T. Ry., 177 Mo.App. 153. (b) The contributory negligence of the plaintiff prevents a recovery for primary negligence. Authorities under Point (1). (5) It was error to give plaintiff's Instruction B because the contributory negligence of the plaintiff prevents a recovery for failure to sound the whistle. Authorities under Point (1). (6) The court erred in giving plaintiff's Instruction C because: (a) There was no evidence supporting it. Authorities under Point (2). (b) The last paragraph in Instruction C conflicts with defendant's Instruction I which was a proper sole cause instruction. It is also erroneous in failing to provide that plaintiff could not recover if his own negligence were the sole cause of his injury. Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Knebel v. Poese (Mo. App.), 153 S.W.2d 844. (7) The verdict of the jury is excessive.

Poague & Poague and Crouch & Crouch for respondent.

(1) Plaintiff was not guilty of contributory negligence as a matter of law but under the facts the issue was a question for the jury. McCall v. Thompson (Mo.), 155 S.W.2d 161; Cook v. St. Joseph Ry., L., H. & P. Co., 232 Mo.App. 313, 106 S.W.2d 38. At a railroad crossing where the view is obstructed there is a duty on the driver of a car and also of those in charge of a train in the exercise of their proper degree of care to increase the care commensurate with the hazard of passing over the crossing. State ex rel. Kurn v. Hughes (Mo.), 153 S.W.2d 46. Plaintiff when approaching an obstructed railroad crossing was under no duty to stop to look and listen until looking and listening would be effective; that is, until the end of the obstruction was reached, and was under no duty to get out of his car before the end of the obstruction was passed. State ex rel. Kurn v. Hughes, supra; Flannagan v. St. Louis-San Francisco Ry. Co. (Mo. App.), 297 S.W. 463; Kalbfell v. Wells (Mo. App.), 49 S.W.2d 247. The defendant's failure to sound the bell was negligence on the part of the defendant as a matter of law. Hoelzel v. Chicago, R. I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126. While it was plaintiff's duty in approaching the obstructed crossing to approach at such speed that he could stop after passing obstructions and before entering within the danger zone, nevertheless, whether he did exercise the proper degree of care is a question of fact to be determined by the facts in each particular case. Dyer v. Kansas City So. Ry. Co., 223 Mo.App. 1001, 25 S.W.2d 508; Sisk v. Chicago, B. & Q. Ry. Co. (Mo. App.), 67 S.W.2d 830; State ex rel. Kurn v. Hughes, supra; Fitzpatrick v. Kansas City Southern Ry. Co., 347 Mo. 57, 146 S.W.2d 560. Plaintiff, in approaching the crossing at ten to twelve miles an hour, looking and listening intently and allowing himself more than three times the distance as would be ordinarily needed to stop between the end of the obstruction and the crossing, was not guilty of contributory negligence as a matter of law but the issue was for the jury. Sisk v. Chicago, B. & Q. Ry. Co., supra. (2) Plaintiff made a submissible case under the humanitarian rule. Hinds v. C., B. & Q. Ry. Co. (Mo. App.), 85 S.W.2d 165; Kasperski v. Rainey (Mo. App.), 135 S.W.2d 11; Scott v. Terminal Railroad Assn. of St. Louis (Mo. App.), 86 S.W.2d 116; Brown v. Alton R. Co. (Mo. App.), 151 S.W.2d 727. There is no merit to the contention of defendant that there was no evidence that the train could have been stopped with safety to the train and those on the train because the train in this case was stopped with perfect safety in forty feet. Brown v. Alton R. Co., supra. The closing part of Instruction C which told the jury that, "and this is the law even though plaintiff was himself negligent in getting into such position of imminent peril and danger, if so," was proper because the defendant's theory in the trial court was that plaintiff in getting himself out on the snow and ice where he could not stop was contributory negligence and the jury were told properly that such was not a defense in a humanitarian submission. Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Melenson v. Howell, 344 Mo. 1137, 130 S.W.2d 555; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; State ex rel. K. C. Pub. Serv. Co. v. Shain, 343 Mo. 1066, 124 S.W.2d 1097. Instruction I offered by the defendant was not a proper sole cause instruction because: For defendant to be able to complain as to a conflict with proper instruction, his offered instruction must be a correct instruction. Reardon v. Mo. Pac. R. Co., 114 Mo. 384, 21 S.W. 731; Williams v. Excavating & Foundation Co., 230 Mo.App. 973, 93 S.W.2d 123; King v. City of St. Louis (Mo. App.), 155 S.W.2d 557. The term "accident" in an instruction can only be used when the happening is one to which human fault does not contribute or where the cause is unknown. There was no reason, therefore, for the use of the word "accident" and the instruction was erroneous. Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21; Tramill v. Prater (Mo. App.), 152 S.W.2d 684; Hogan v. Kansas City Pub. Serv. Co., 322 Mo. 1103, 19 S.W.2d 707. Instruction I was improper because defendant had no evidence that he was free from negligence and, on the contrary, under the evidence, he was guilty of negligence as a matter of law and said instruction did not hypothesize the necessary facts. McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 792; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; Fassi v. Schuler (Mo.), 159 S.W.2d 774. (3) The ice and snow was not the sole proximate cause of the collision. Sisk v. Chicago, B. & Q. Ry. Co., supra; Heidt v. People's Motorbus Co. of St. Louis, 219 Mo.App. 683, 284 S.W. 840; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872. (4) The petition charging that defendant "negligently failed to sound or give reasonably sufficient warning or to give reasonable and sufficient or legal warning to this plaintiff" charged failure to ring the statutory bell and since the statute is a public statute it was not required to be pleaded but only facts sufficient to place the case under such statute. Moyer v. Chicago & Alton Ry. (Mo.), 198 S.W. 839; McKenzie v. United Rys. Co., 216 Mo. 1, 115 S.W. 13; Emerson v. St. Louis & H. Ry. Co., 111 Mo. 161, 19 S.W. 1113; Reynolds v. Chi. & Alton R. Co., 85 Mo. 90; Jones v. C., B. & Q. Ry. Co. (Mo. App.), 100 S.W.2d 617, 314 Mo. 1104, 125 S.W.2d 5. (5) The verdict of the jury was not excessive. Hesemann v. May Department Stores Co., 225 Mo.App. 584, 39 S.W.2d 797.

OPINION

Bland, J.

Hallie Leavell, plaintiff below, sued Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a corporation, defendant, for damages resulting from injuries received by him when his motor car, which he was operating, was struck by one of defendant's trains. From a verdict and judgment in favor of plaintiff in the sum of $ 2500 defendant prosecutes this appeal.

Defendant offered no evidence but stood on demurrer which it urges in this appeal. In passing on the demurrer we will consider the evidence from a standpoint most favorable to plaintiff.

Plaintiff was a farmer, some thirty-four years of age. He was driving his Chevrolet sedan along a street in the town of Archie Missouri, with the windows closed, shortly after noon when the collision occurred. The sun was shining and it was a perfect winter day, but the streets and roads were covered with snow and ice and were slick. Plaintiff testified that he knew of this situation and knew that, on account thereof, his brakes did not perform very well; that he could not have driven much slower...