Lynch v. Missouri-Kansas-Texas R. Co.

• Decision Date: 24 June 1933
• Docket Number: 30834
• Citation: 61 S.W.2d 918,333 Mo. 89
• Parties: Michael B. Lynch v. Missouri-Kansas-Texas Railroad Company, a Corporation, and Robert I. Gowan and Al Bryan, Appellants
• Court: Missouri Supreme Court

61 S.W.2d 918

333 Mo. 89

Michael B. Lynch v. Missouri-Kansas-Texas Railroad Company, a Corporation, and Robert I. Gowan and Al Bryan, Appellants

No. 30834

Supreme Court of Missouri

June 24, 1933

Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge;

Reversed and remanded.

Carl S. Hoffman and Pendleton & Martin for appellants.

(1) The court erred in excluding the testimony of appellants' witness W. S. Williams, based on experiments made at the scene of the accident. Burton v. Railroad, 176 Mo.App. 17; James v. Bailey Reynolds Chandelier Co., 30 S.W.2d 124; Owen v. Delano, 194 S.W. 760; Griggs v. Ry. Co., 228 S.W. 511; Riggs v Railroad, 216 Mo. 327; Amsbary v. Ry. Co., 139 P. 46, cited by our Supreme Court with approval in Griggs v. Ry. Co., 228 S.W. 512. (2) The court erred in excluding photograph, appellants' Exhibit No. 5, after the same had been properly identified and shown to correctly represent and show the position and location of cars in M-K-T yards on the night of the accident as testified to by appellants' witnesses. Bretall v. Railroad Co., 239 S.W. 599; Edge v. Electric Ry. Co., 206 Mo. 501; Smith v. Wilson, 296 S.W. 1039; Lauff v. Kennard & Sons Cracker Co., 171 S.W. 989. (3) The court erred in excluding from the jury the testimony of appellants' witness C. W. Evans, relating to statement and declarations of respondent's witness, Burgwin, driver of the automobile in which respondent was riding, made immediately after the accident and at the scene of the accident in the presence of respondent, for the reason that the same constituted part of the res gestae. Hodges v Hill, 175 Mo.App. 455; Thomas v. Macon County, 175 Mo. 78; Kuether v. Kansas City L. & P. Co., 276 S.W. 110; Nahorski v. Railroad Co., 274 S.W. 1028; Nahorski v. Railroad Co., 271 S.W. 751; May v. Railroad Co., 225 S.W. 666; 1 Wigmore on Evidence, par. 792. (4) The court erred in giving the plaintiff's Instruction 1 for the reason that the petition charged both a failure to blow the whistle and ring the bell, and there was evidence on the part of the defendant to meet both issues, and plaintiff's instruction authorizes a recovery in his behalf, if the bell was not rung, ignoring the warning by whistle. Mundy v. Railroad Co., 45 S.W.2d 944; Moyer v. Railroad Co., 198 S.W. 844; Daniel v. Pryor, 227 S.W. 106. (5) The court erred in refusing to give appellants' Instruction D 18 for the reason that plaintiff in his petition charged as negligence both the failure to ring the bell and to blow the whistle, and this instruction told the jury that the appellants were not required to do both but that the doing of either was sufficient. Mundy v. Railroad Co., 45 S.W.2d 944; Moyer v. Railroad Co., 198 S.W. 844; Daniel v. Pryor, 227 S.W. 106. (6) The court erred in refusing appellants' Instruction 1 offered at the close of the case in the nature of a demurrer, for the reason that the evidence shows that plaintiff was guilty of contributory negligence. Sullivan v. Railroad Co., 271 S.W. 983; Holtkamp v. Railroad Co., 234 S.W. 1054; Aldridge v. Railroad Co., 256 S.W. 93; Monroe v. Railroad Co., 249 S.W. 644. Respondent and other occupants of the automobile were not in a position to estimate the speed of the train. O'Donnell v. Wells, 21 S.W.2d 765; Strauchon v. Met. St. Ry. Co., 232 Mo. 599.

W. G. Lynch and Harvey & Bellamy for respondent.

(1) The court did not err in excluding the testimony of appellants' witness, W. S. Williams, based on experiments made by him at the scene of the accident, about nine months thereafter. The causal condition and circumstances were not the same or substantially the same in the two instances and for this reason this testimony was incompetent. 12 Cyc. 285; James v. Bailey Reynolds Chandelier Co., 30 S.W.2d 124; Bretal v. Railroad Co., 239 S.W. 600; Klenk v. Klenk, 282 S.W. 156; Ballman v. Lueking Teaming Co., 219 S.W. 969; Riggs v. Met. St. Ry., 115 S.W. 969; Chemical Co. v. Rag Co., 145 Mo.App. l. c. 688; 22 C. J. pp. 756, 758, 759. (2) Defendant's Exhibit No. 5, purporting to be a photograph of the position and location of the cars at the M. K. & T. Yards, when taken, was inadmissible in evidence and incompetent for the reason that it did not show the true position and location of the cars on the night of the accident. This photograph was taken a number of months after the accident occurred. For such photograph to have been admissible, it would have been necessary to show that the situation, in all of its details, was substantially the same as at the time of the accident, and this not being shown, the court committed no error in excluding it. Witness, Stegner testified that the cars on track No. 1, just south of the main track were within five feet of State Highway No. 5, and defendant's photograph did not show the location of any such cars. 17 Cyc. 417-420; Smart v. Kansas City, 91 Mo.App. 598; Baustian v. Young, 152 Mo. 322; Riggs v. Railroad Co., 216 Mo. 327; Lauff v. Kennard, 171 S.W. 988; Edge v. Ry. Co., 206 Mo. 487. (3) The court did not err in excluding the testimony of appellants' witness, C. W. Evans, concerning the statement of respondent's witness, Bergwin, made three or four minutes after the accident occurred. No foundation was laid for the impeachment of this witness, nor was his statement any part of the res gestae. Nahorski v. Railroad Co., 271 S.W. 751; Kuether v. K. C. Light & Power Co., 276 S.W. 110. (4) Instruction 1, given by the court on behalf of plaintiff, correctly declared the law, for the reason that it was incumbent on defendant, railroad, to cause the bell on its engine to be rung and to be kept ringing for a distance of eighty rods from the place of the accident. It was not sufficient to blow the whistle. R. S. 1929, sec. 4756; Kennayde v. Railroad Co., 45 Mo. 255; Lamb v. Railroad Co., 147 Mo. 171; Turner v. Ry. Co., 114 S.W. 1026; Coffin v. Railroad, 22 Mo.App. 601; Mitchell v. Railroad, 122 Mo.App. 50; Van Note v. Railroad, 70 Mo. 641; Turner v. Railroad, 78 Mo. 578; Terry v. Railroad, 89 Mo. 586. (6) The court committed no error in refusing appellant's Instruction 1, offered at the close of plaintiff's case in chief, in the nature of a demurrer to the evidence, for the reason that such evidence did not show that plaintiff was as a matter of law, guilty of contributory negligence. He was a guest of Bergwin, the driver of the automobile. Hutchinson v. Ry. Co., 161 Mo. 246; Boland v. Ry. Co., 284 S.W. 144; Smith v. Ry. Co., 9 S.W.2d 939; O'Donnell v. Wells, 21 S.W.2d 764.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

From a judgment in the sum of $ 10,000 defendants appeal. Defendants Robert I. Gowan and Al Bryan were engineer and fireman respectively operating a locomotive of defendant railroad company when the locomotive struck an automobile in which Michael B. Lynch was a guest passenger. The collision occurred at the intersection of State Highway No. 5 with the defendant railroad company's tracks in the city of New Franklin in Howard County, Missouri. The cause was tried in Saline County on change of venue. Appellants complain that their demurrers should have been sustained and that the trial court also erred in excluding evidence and in giving respondent Lynch's main instruction. No question is raised as to the amount of the verdict or as to the permanency of respondent's injuries. The case went to the jury upon charges of violation of a speed ordinance and failure to ring the bell of the locomotive.

I. We first will pass upon the merits of the demurrers. Respondent Lynch was a farmer living near Glasgow in Howard County. He had been in Boonville, Cooper County, during the day of April 28, 1929, and he left Boonville for Fayette Howard County about 12:30 A. M. on the morning of April 29, in a Ford sedan owned and driven by A. B. Bergwin of Fayette. Bergwin had invited Lynch and also Roland K. Stegner (in the day) to ride with him to Fayette. Lynch sat beside Bergwin on the right hand side of the front seat, and Stegner was in the rear seat. At New Franklin Highway No. 5 runs north toward Fayette and appellant railroad company's tracks run east and west. There are nine tracks consisting of the main track, seven switch tracks south of the main track, and one storage track north of the main track. The accident happened on the main track. The railroad station at New Franklin is about 250 feet east of the crossing. There are two electric lights on top of high poles upon the railroad property east of the crossing, west of the station and north of the main track. The train which collided with Bergwin's automobile came from the east. It was an extra, made up of empty baggage cars which were being hauled from St. Louis to Franklin Junction, one mile west of New Franklin. Respondent Lynch and also Bergwin and Stegner testified that there were freight cars on several of the switch tracks, east of the crossing, and especially on tracks 1 and 2, immediately south of the main track and over which the northbound automobile had to cross before it came upon the main track. They were positive that the cars on track 1 next to the main track and on the adjoining switch tracks were box cars, that the nearest of them was within five or ten feet of the crossing and that these cars extended continuously back as far as the eye could see in the night. Box cars so located east of the crossing cut off the view of the train coming from the east. Employees of appellant railroad company, working in the yards that night, testified that the cars on track 1 east of the crossing were coal cars; that the nearest of them was at least 250 feet distant from the crossing; that there were no cars on track 2 and that the cars on track 3 were sixty to eighty feet east of the crossing. Cars so located would...