Lynch v. Baldwin

• Decision Date: 01 April 1938
• Docket Number: No. 35003.,35003.
• Citation: 117 S.W.2d 273
• Parties: LYNCH v. BALDWIN et al.
• Court: Missouri Supreme Court

117 S.W.2d 273

LYNCH v. BALDWIN et al.

No. 35003.

Supreme Court of Missouri, Division No. 1.

April 1, 1938.

Rehearing Overruled May 26, 1938.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

Action by Fred P. Lynch against L. W. Baldwin and another, trustees for the Missouri Pacific Railroad Company, for injuries sustained when plaintiff's truck collided with defendants' train. Judgment for plaintiff for $15,000, and defendants appeal.

Affirmed on condition that plaintiff file a remittitur of $3,000.

Thomas J. Cole, of St. Louis, L. J. Bishop, of Butler, W. W. Graves, Jr., of Kansas City, and D. C. Chastain of Butler, for appellants.

Hale Houts, of Kansas City, for respondent.

BRADLEY, Commissioner.

Action for personal injury. Plaintiff, driving a one and one-half ton Chevrolet truck, was injured June 28, 1934, at a public crossing. A verdict and judgment for $15,000 went for plaintiff. Motion for a new trial was overruled and defendants appealed.

Plaintiff alleged primary negligence, and a breach of the humanitarian rule. Defendants answered by general denial and a plea of contributory negligence. Reply was a general denial. Plaintiff went to the jury on humanitarian negligence only. The cause was submitted on the theory that defendants, by the exercise of ordinary care, saw, or could have seen, plaintiff approaching the crossing and oblivious of his danger in time thereafter to have given a warning of the train's approach, so that plaintiff could have stopped.

Error is assigned (1) on the refusal, at the close of the case, of defendants' instruction in the nature of a demurrer to the evidence; (2) on instructions given and refused; (3) on the admission of evidence; (4) on the refusal of the court to discharge the jury because plaintiff cried while on the witness stand; (5) because the court, it is claimed, should have granted a new trial on the ground of newly discovered evidence; and (6) on an excessive verdict.

It is first contended that the petition does not state a cause of action under the humanitarian doctrine, because it does not allege that plaintiff was in a position of imminent peril. The petition was not attacked. All the evidence tending to show peril went in without objection on that ground. Such being the situation, if the petition were defective in the respect here claimed, it would, after verdict, be considered as amended. Luikart v. Miller et al., Mo.Sup., 48 S.W.2d 867; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723, loc. cit. 726, and cases there cited.

Measured by the demurrer to the evidence, the facts are about as follows: The railroad, on an embankment about 7 or 8 feet in height, runs north and south, and the passenger train involved approached from the north. The highway runs east and west, and plaintiff approached the crossing from the east. There was attached to the floor of the truck, and to the rear of the cab, a hammer mill, the weight of which was 1½ or 2 tons. (Plaintiff went over the country and ground grain for feed.) Approaching from the east the highway was practically level, until within about 30 or 40 feet of the track, where it rose on a grade to the track. The accident occurred about 11:30 a. m., on a clear day. There were no obstructions to the north for about 1,300 feet. From the crossing north it was somewhat upgrade, and, at or about 1,300 feet north, the railroad went over the grade, and a train approaching from the north would not be visible to one driving on the highway until it reached the crest of the grade. Plaintiff testified that at a point about 200 feet east of the track he looked north, but saw no train. He did not again look north until the front end of his truck was on the track, and the train was only 25 or 30 feet away. The speed of the train was estimated at from 50 to 60 miles per hour. Plaintiff testified that about 400 or 500 feet east of the crossing he decreased his speed from 15 to 10 miles per hour and drove at that speed until within about 200 feet of the crossing, at which point he made some increase in speed, and when within about 60 or 70 feet from the crossing he increased to about 15 miles, and did not thereafter decrease speed until struck. At 10 miles an hour plaintiff could have stopped the truck, on the grade up to the crossing, in 4 or 5 feet, and at 15 miles he could have stopped in 6 or 7 feet. The evidence from plaintiff's case tended to show that no warning of the train's approach was given by bell, whistle, or otherwise, until about the moment of the collision.

Plaintiff approached the crossing from the fireman's side of the engine cab, and was not seen by the engineer. As a witness for defendants, D. T. Denton, the fireman, testified that he first saw plaintiff approaching when the train was "300 or 350 feet back from the crossing," that he had been down from his seat "shoveling coal," and that when he got back on his seat he saw plaintiff, and that plaintiff was then "possibly 150 or 200 feet from the crossing." Denton was asked what he then did, and said that he "grabbed the bell and hollowed to the engineer to blow the whistle again. I just says, blow the whistle again." He further said that the whistle had been blowing; that the engineer quit sounding the whistle "just as I got up" from shoveling coal. He said that the truck was not "coming fast and I figured he would stop." The fireman also testified that plaintiff's truck hit the engine "ahead of me in the cab. four or five feet." There was other evidence tending to show that the bell and whistle were sounded before the collision. On cross-examination the fireman fixed the speed of plaintiff's truck at 15 or 20 miles per hour. "It was going about that fast when I saw him and when he got closer, I didn't figure he was going to stop, so I hollowed to the engineer to stop." And further: "Q. During that 200 feet you saw him coming on you were on your seat there? A. On my seat in the cab." When the fireman told the engineer to stop, the brakes were set in emergency.

"We can only say that there is no case to be submitted to the jury under the humanitarian rule `if a given case in that regard is so plain that average fairminded men cannot reasonably differ about it. * * * But if there is a ground for fair difference of opinion about it, then the question is for the jury.'" Perkins v. Terminal R. Association, 340 Mo. 868, 102 S. W.2d 915, loc. cit. 919, and cases there cited. We think that under the facts, plaintiff's case on the humanitarian theory was for the jury. Perkins v. Terminal R. Association, supra; Gann v. Chicago, R. I. & P. Ry. Co. et al., 319 Mo. 214, 6 S.W.2d 39; Chawkley v. Wabash Ry Co. et al., 317 Mo. 782, 297 S.W. 20; Womack v. Missouri Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368; Alexander v. St. Louis-S. F. Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023.

Defendants assign error on plaintiff's instruction A. This was plaintiff's main instruction. Our ruling on the sufficiency of the petition and on the demurrer to the evidence disposes of the complaints on this instruction.

Defendants complain on the refusal of their instructions 5 to 11, inclusive, and 13, but in their points and authorities complain only on 9 and 13. Instruction No. 9 told the jury that, if they found that the employees of defendants "made an honest effort as reasonable men to avoid the accident after discovering or after they should have discovered the plaintiff in a position of peril," then plaintiff could not recover. Defendants' given instruction 16 told the jury that, if the employees "of defendants after they saw or by the exercise of ordinary care could have seen the plaintiff in a position of peril did what a reasonable, careful or prudent person would have done under the same or similar circumstances to warn plaintiff of the approaching of the train, then your verdict must be for the defendants." This instruction was sufficient, and there was no occasion for such an instruction as No. 9 phrased in language inapplicable to the accepted law of the definition of negligence.

Defendants' refused instruction No. 11 would have told the jury that those operating the train "had a right to assume" that plaintiff would exercise the highest degree of care for his own safety; that they "had a right to assume that plaintiff was alert to the dangers of a railroad crossing" and would "check his progress before going" upon the track, or "entering into a danger zone", and that he "would not leave a place of safety and attempt to cross the tracks without first exercising the highest degree of care to ascertain if a train was approaching." The instruction then concluded: "You are, therefore, further instructed that the agents and servants of the defendants operating said train at the time and place mentioned in the evidence were at said time and place under no duty to sound any warning of the approach of said train until the actions and conduct of the plaintiff would indicate to a reasonable person that the plaintiff at said time and place (was) unmindful of the approach of said train."

The first part of instruction No. 11 was directed at the negligence of plaintiff and would suggest to the jury that plaintiff could not recover if the jury believed he was negligent in not exercising the highest degree of care for his own safety. Such is not proper where a cause is submitted only on humanitarian negligence, and, such being so, the jury's attention to the negligence of the plaintiff should not be suggested, except in a sole cause instruction. The instruction was properly refused. Larey v. Missouri-K.-T. R. Co., 333 Mo. 949, 64 S.W.2d 681; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7, loc. cit. 11, and cases there cited.

Error is assigned on the admission in evidence of two photographs of plaintiff wearing a Thomas collar to brace his neck, and in refusing to discharge the jury because plaintiff cried...