Long v. Thompson

• Decision Date: 09 October 1944
• Docket Number: 38615
• Citation: 183 S.W.2d 96,353 Mo. 531
• Parties: Jess R. Long, Appellant, v. Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a Corporation
• Court: Missouri Supreme Court

183 S.W.2d 96

353 Mo. 531

Jess R. Long, Appellant, v. Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a Corporation

No. 38615

Supreme Court of Missouri

October 9, 1944

Rehearing Denied November 6, 1944.

Appeal from Jackson Circuit Court; Hon. Charles L. Carr Special Judge.

Affirmed.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for appellant.

(1) The court erred to the prejudice of plaintiff and abused his judicial discretion in refusing to reopen the case while the demurrer to the evidence was being argued at the close of plaintiff's case to permit plaintiff's witness Bryant to testify as to the time which elapsed from the time the truck went over the first rail and bogged down until he saw the train and warned plaintiff. Cox v. Terminal Railroad Assn. of St. Louis, 43 S.W.2d 571; Pedigo v Roseberry, 340 Mo. 724, 102 S.W.2d 600; Sullivan v. Union Electric L. & P. Co., 331 Mo. 1065, 56 S.W.2d 97; Parker-Washington Co. v. Dennison, 249 Mo. 449, 155 S.W. 797; Tierney v. Spiva, 76 Mo. 279. (2) The trial court erred to the prejudice of the plaintiff in giving withdrawal instructions F, L, M, as requested by the defendant when the case was submitted to the jury, and Instruction Y of the court's own motion during the deliberations of the jury. Shumate v. Wells, 9 S.W.2d 632; Seithel v. St. Louis Dairy Co., 300 S.W. 280; Reith v. Tober, 8 S.W.2d 607. (3) The court erred to the prejudice of the plaintiff in refusing to give plaintiff's requested Instruction 5 designed to submit the issue of a defective crossing constituting both statutory and common-law negligence. Kansas Statutes, Sec. 13-1904; State ex rel. Major v. Patterson, 229 Mo. 373, 129 S.W. 888; Vrooman v. St. Louis, 337 Mo. 933, 88 S.W.2d 189; Kansas Statutes, Sec. 66-227; City of Eudora v. Darling, 54 Kan. 654; LaHarpe v. Gas Co., 75 P. 448, 69 Kan. 97; Trimble v. City of Topeka, 75 P.2d 243, 147 Kan. 111; Harshaw v. K.C. Pub. Serv. Co., 119 P.2d 459, 154 Kan. 481; 43 C.J., p. 221, sec. 221; Gates v. Crandall, 123 Mo.App. 414, 100 S.W. 51; Kansas Statutes, Secs. 12-1633, 12-1634. (4) The evidence in this case favorable to plaintiff made a submissible case of wanton negligence and the court erred in refusing plaintiff's requested Instruction 6 designed to submit that issue. Koehler v. Wells, 323 Mo. 31, 20 S.W.2d 31; Reel v. Consolidated Inv. Co., 236 S.W. 43; Railway v. Lacy, 97 P. 1025, 78 Kan. 622; Pacific R. Co. v. Whipple, 18 P. 730, 39 Kan. 531; Fabic v. St. Louis-S. F. Ry. Co., 237 P. 1019, 119 Kan. 58; A., T. & S. F. v. Baker, 79 Kan. 183; L.S. & M.S. Ry. Co. v. Bodemer, 139 Ill. 596, 29 N.E. 692, 32 Am. St. Rep. 218.

Leslie A. Welch, Richard H. Beeson and David P. Dabbs for respondent.

(1) In refusing plaintiff's request for permission to reopen the case to permit plaintiff's counsel to further interrogate witness Bryant, the court did not err or abuse his judicial discretion. The matter was discretionary. Bryant had fully testified. Goodrich v. K.C., C. & S. Ry. Co., 152 Mo. 222, 53 S.W. 917; Mo. Digest, Trial, Key No. 66, et seq. (2) The requested interrogation was on an immaterial matter. Buchhein v. A., T. & S.F. Ry. Co., 147 Kan. 192; Bazzell v. A., T. & S.F. Ry. Co., 133 Kan. 483. (3) The court did not err in giving withdrawal instructions F, L, M, and Y. Sackmann v. Wells, 41 S.W.2d 153; Wright v. Quattrochi, 49 S.W.2d 3; State ex rel. Baldwin v. Shain, 125 S.W.2d 41; Yuronis v. Wells, 17 S.W.2d 518; Bloecher v. Duerbeck, 92 S.W.2d l.c. 689; Iman v. Walter Freund Bread Co., 58 S.W.2d 477. (4) Actually no case was made under Kansas last chance doctrine. Karr v. C., R. I. & P. Ry. Co., 108 S.W.2d 44; Starke v. Berger, 125 S.W.2d 970; Dyerson v. Railroad Co., 74 Kan. 528; Maria v. St. Ry. Co., 98 Kan. 205; Mourning v. Rys., 110 Kan. 417; Williams v. Railroad Co., 122 Kan. 256; Clark v. Railroad Co., 127 Kan. 1; Bazzell v. Railroad Co., 133 Kan. 483; Goodman v. K.C., M. & S.R. Co., 137 Kan. 508. (5) Plaintiff's negligence barred submission of primary negligence. McCune v. Thompson, Trustee, 147 Kan. 57; Pagan v. Lowden, Trustee, 145 Kan. 513; Rathbone v. Ry., 113 Kan. 257; Wehe v. Ry., 97 Kan. 794; Hooker v. Railroad Co., 134 Kan. 762; Jacobs v. Ry., 97 Kan. 247; Brim v. Ry., 136 Kan. 159; Railway v. Wheeler, 80 Kan. 187; M.-K.-T. Ry. Co. v. Bussey, 66 Kan. 735; Knight v. Ry. Co., 111 Kan. 308; Kirby v. Railroad Co., 106 Kan. 163; Sharp v. Sproat, 111 Kan. 735; Ewing v. Railroad Co., 117 Kan. 300; Cooper v. Railroad Co., 117 Kan. 703; Ferguson v. Lang, 126 Kan. 273; Blue v. Ry. Co., 126 Kan. 635; Williams v. Ry. Co., 122 Kan 256; Ek v. Ry., 132 Kan. 177; Bazzell v. Ry., 134 Kan. 272; Carter v. Ry., 136 Kan. 526; Buchhein v. A., T. & S.F., 147 Kan. 192; Wiley v. A., T. & S.F., 60 Kan. 819; Bush v. Ry., 62 Kan. 709; Railway v. Withers, 69 Kan. 620; Hoopes v. Ry., 72 Kan. 422; M.-K.-T. v. Jenkins, 74 Kan. 487; C., R.I. & P. v. Wheelbarger, 75 Kan. 811; A., T. & S.F. v. Schriber, 80 Kan. 540; Beech v. Ry., 85 Kan. 90; Palmer v. C., R.I. & P., 90 Kan. 57; Corley v. Ry., 90 Kan. l.c. 73; Gage v. Railroad, 91 Kan. 253; Adams v. Ry., 93 Kan. 475; Butts v. Ry., 94 Kan. 328; Pritchard, Admr. v. A., T. & S.F., 99 Kan. 600; Moler v. Ry., 101 Kan. 280; Fair v. Union Traction Co., 102 Kan. 611; Jamison v. A., T. & S.F., 122 Kan. 305; Heinen v. Railroad Co., 125 Kan. 612; Coleman v. Railroad Co., 130 Kan. 325. (6) The Kansas crossing statute pleaded applies only to county or township roads, not city streets. Cooper v. Railway, 117 Kan. 1. c. 706; Jamison v. Railway 122 Kan. l.c. 306. (7) Plaintiff was not entitled to submission on the theory of wanton negligence. Bazzell v. A., T. & S.F. Ry. Co., supra; Jacobs v. Railway, 97 Kan. 247; Gilbert v. Ry., 91 Kan. 711, 92 Kan. 281, 92 Kan. 697; Stout v. Gallemore, 138 Kan. 385; Donelan v. Wright, 148 Kan. 287; Ewing v. Edwards, 140 Kan. 325; Aduddell v. Brighton, 141 Kan. 617; Murrell v. Janders, 141 Kan. 906; Anderson v. Anderson, 142 Kan. 463; Cohee v. Hutson, 143 Kan. 784; Stevers v. Walker, 125 S.W.2d 920; Evans v. Illinois Central R. Co., 233 S.W. 397.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to recover $ 25,250 for damages for personal injuries and property damage alleged to have been received at a railroad crossing in Wichita, Kansas. The cause was submitted under the Kansas last chance rule. Verdict and judgment went for defendant, and plaintiff appealed.

Error is assigned (1) on the refusal of plaintiff's request to reopen the case for further evidence; (2) on giving defendant's withdrawal instructions F and M and on giving withdrawal Instruction Y on the court's own motion; (3) on the refusal of plaintiff's instruction No. 5 submitting primary negligence as to condition of crossing; and (4) on the refusal of plaintiff's instruction No. 6 submitting the cause under the Kansas wanton negligence rule.

Plaintiff resided on a farm about ten miles south of Wichita. On the morning of April 22, 1939, he left home in his Chevrolet pickup truck, accompanied by his nephew, Robert Bryant, age 18. Robert's home was with his mother and stepfather, who resided in Wichita and about one-half block north of the crossing in question. Plaintiff was taking his nephew home, and arrived at this crossing about 6:45. He was driving north on St. Paul Street, an unpaved street; the railroad track extends somewhat northwest and southeast. Newell Street, an east and west street, intersected St. Paul just south of the crossing. West of St. Paul, Newell Street was south of the railroad track, and east of St. Paul, Newell was north of the track. The passenger train that struck plaintiff approached from the northwest. The sun was up; track and street dry, and the adjacent area practically level.

Plaintiff's evidence tended to show that no warning of the train's approach was given by bell or whistle, and that until within 25 or 30 feet of the track the view to the northwest of one approaching in a vehicle from the south might be somewhat obstructed by a yard some four feet above the street level, and by a four foot hedge along the east side of the yard, and by a bushy cedar tree near the northeast corner of the yard. But it is, in effect, conceded that when about 20 feet from the track there was no obstruction to the northwest along the track for some 2,000 feet. Plaintiff testified that when about 20 feet from the track he stopped and looked both northwest and southeast; that he saw no train and heard none; that he then moved forward at 4 or 5 miles per hour and at that rate could have stopped in 4 or 5 feet. There was an upgrade of probably two feet in the roadway of St. Paul Street which upgrade began a short distance, probably 5 or 6 feet south of the track, and plaintiff's evidence was to the effect that there were chuckholes between the rails. In plaintiff's statement, it is said:

"He (plaintiff) pulled up to the incline over the hump until his front wheels went across the south rail of the track. He felt the front wheels drop into a chuckhole eight or ten inches deep. He had no previous knowledge of the presence of these chuckholes. At practically the same time his nephew said, 'Train, Jess', and he (plaintiff) looked to the left and saw a train approaching and then about 150 to 200 feet away. He stepped on the motor quick and it went dead."

Plaintiff's instruction No. 1, omitting some superfluous "if sos", told the jury to find for him if they found that the truck engine went dead "and that plaintiff was then and there in a position of imminent and inescapable peril from the approach of said railroad train . . . and that after plaintiff got into such position of imminent and inescapable peril the defendant's engineer operating said railroad train for the defendant saw, or by the...