Malone v. St. Louis-San Francisco Ry. Co.
| Citation | 285 S.W. 123,220 Mo.App. 9 |
| Parties | MAY MALONE, RESPONDENT, v. ST. LOUIS-SAN-FRANCISCO RAILWAY COMPANY, APPELLANT. |
| Decision Date | 01 June 1926 |
| Court | Court of Appeal of Missouri (US) |
Rehearing Denied 220 Mo.App. 9 at 18.
Appeal from the Circuit Court of the City of St. Louis.--Hon. H. A Rosskopf, Judge.
AFFIRMED.
Judgment affirmed.
E. T Miller and A. P. Stewart for appellant.
(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendant at the close of the whole case should have been given. (a) The only negligence relied on as a predicate of recovery was a failure to give the statutory signal by bell or whistle. Both plaintiff and her brother, the driver of the automobile, saw and had notice of the approaching train before the collision. Hence, failure, if any, to give the statutory signals was not the proximate cause of the injury. Peterson v. Railways, 270 Mo. 67; DeWolf v. Dry Goods Co. (Mo. App.), 240 S.W. 1094; Pope v. Railroad, 242 Mo. 232. (b) Plaintiff is barred from recovery by the negligence of her driver, which is imputable to her. Threadgill v. Railways, 279 Mo. 466; Tannehill v. Railways, 279 Mo. 158. (c) That the driver of the automobile was negligent conclusively appears from the evidence for plaintiff. State ex rel. v. Bland (Mo.), 237 S.W. 1018; Wallace v. Railway (Mo. App. ), 257 S.W. 507. (2) Instruction No. 1, given for plaintiff, is erroneous and prejudicial, and the giving of same constituted reversible error. (a) This instruction submits to the jury, as a predicate of recovery, negligence in failure to give the statutory signals, when the evidence for plaintiff shows that both she and her brother, the driver of the automobile, had knowledge of the approach of the train without the signals. Failure to give the signals was therefore not the proximate cause of the injury, and it was error to submit such failure as negligence. Peterson v. Railways, 270 Mo. 75; DeWolf Dry Goods Co., 240 S.W. 1094. (b) This instruction erroneously instructs the jury regarding a legal presumption. Connelly v. Railroad, 133 Mo.App. 310; Moberly v. Railway, 98 Mo. 183; Rapp v. Railroad, 106 Mo. 423; Myers v. Kansas City, 108 Mo. 480. (c) This instruction authorizes the jury to find defendant negligent if it failed to give either of the statutory signals by bell or whistle. As framed, it required the giving of both, whereas the statute is complied with by giving one or the other. Turner v. Railway, 78 Mo. 578; Cathcart v. Railway, 19 Mo.App. 113; Halferty v. Railway, 82 Mo. 90; Braddy v. Railroad, 47 Mo.App. 519. (d) This instruction conflicts with instruction No. 8 given for defendant. It is reversible error to give conflicting and inconsistent instructions. Baker v. Railway, 122 Mo. 533. Where plaintiff's instruction authorizes a verdict for plaintiff on an erroneous theory of the law, a correct instruction given for defendant touching the same matter does not cure the error. Traylor v. White, 185 Mo.App. 325; State ex rel. v. Ellison, 272 Mo. 571. (3) It was error to refuse defendant's withdrawal instruction 3. Since failure to give the statutory signals was the only negligence relied on, and since it appeared from the evidence for plaintiff that both she and the driver of the car had notice of the approach of the train without the signals, it was error to submit failure to give the signals as negligence and to refuse defendant's instruction withdrawing such assignment of negligence from the consideration of the jury. DeWolf v. Dry Goods Co., 240 S.W. 1094; Peterson v. Railways, 270 Mo. 75. (4) It was error to refuse defendant's withdrawal instructions 4 and 5. These instructions were intended to withdraw from the consideration of the jury the remaining assignments of negligence, which were without support in the evidence and which were abandoned by plaintiff, and should have been given. Chrismer v. Tel. Co., 194 Mo. 189; DeWolf v. Dry Goods Co., 240 S.W. 1094. (5) It was error to refuse defendant's requested instructions 10 and 16. These instructions dealt with plaintiff's own personal conduct, and declared the effect of her failure, if the jury so found, to perform the duty imposed on her by law to exercise care for her own safety commensurate with the danger to be encountered, and should have been given. Friedman v. Railways, 293 Mo. 235; Sorrell v. Payne (Mo. App.), 247 S.W. 462; Burton v. Pryor (Mo. App.), 198 S.W. 1117; Leapard v. Railways (Mo. App.), 214 S.W. 268; Fechley v. Trac. Co., 119 Mo.App. 358; Bradley v. Railroad, 288 F. 484; Noble v. Railway, 298 F. 381. (6) It was error to refuse defendant's requested instructions 11 and 14. These instructions were amply supported by the evidence. If defendant either rang the bell or sounded the whistle, as stated in these instructions, it complied with the statute, and hence was not negligent independent of any other issue in the case. If the court was justified in submitting failure to give the statutory signals as negligence, then these requested instructions should have been given. Turner v. Railroad, 78 Mo. 580.
Douglass, Inman & Horsefield for respondent.
(1) When plaintiff and her brother testified that they stopped within eight or ten feet of the track and looked and listened for an approaching train and saw none and heard no whistle or bell, and then started up and moved toward the track and kept looking and listening and saw no train and heard no signals; and, where other witnesses in a position to hear, testified they heard no signals given until just before the crash, then this evidence made a prima-facie case that entitled plaintiff to go to the jury. Horenstine v. U. R. Co., 195 Mo. 440; Weetch v. Railroad, 190 Mo.App. 213; Detchemendy v. Wells, 253 S.W. 153; McNulty v. Railroad, 203 Mo. 475. (2) The evidence of all the witnesses for plaintiff is that there was a very heavy fog, and some said they could not see the train more than about one hundred fifty or two hundred feet, and where the view of a train approaching a crossing is obstructed, as in this case, on account of the fog, plaintiff had a right to rely on the statutory signals being given, and when she listened for them and heard none, she was not guilty of negligence in crossing the track. McKerall v. Railroad, 257 S.W. 166; Roques v. Railroad, 264 S.W. 474. (3) Where there is proof of a failure to comply with the law in giving the statutory signals at a crossing, then the statute raises a presumption that the injury was caused by the failure to give the crossing signals. McGee v. Wabash R. Co., 214 Mo. 530; Pyrer v. Payne, 263 S.W. 982; Robertson v. Railroad, 264 S.W. 443; McNulty v. Railroad, 203 Mo. 475; Guthrie v. Mo. Pac. R. R., 279 S.W. 210. (4) Plaintiff's instruction No. 1 correctly declares the law, and (a) it is not subject to the criticism made by the defendant, and (b), if there is any doubt as to the meaning of this isolated sentence of the instruction that would even make its meaning ambiguous, then this ambiguity is cleared up by the other parts of the same instruction, and by the "doctrine of aider" in defendant's instruction No. 8. Cornoski v. Transit Co., 207 Mo. 277; Franberger v. Railroad, 200 Mo. 333; Biehlman v. City, 260 S.W. 533; Barowski v. Biscuit Co., 229 S.W. 426; Maloney v. U. R. Co., 237 S.W. 515; State ex rel. v. Mathieson, 261 S.W. 335. (5) Defendant's instructions Nos. 4 and 5 were properly refused because plaintiff only asked to go to the jury on one assignment of negligence, and this was an abandonment of all others, and since the jury is presumed to have followed the instructions of the court, there was no use in withdrawing issues from the jury that were never presented to the jury. Carl v. Railway Co., 258 S.W. 72; State ex rel. v. Ellison et al., 223 S.W. 671. (6) Instructions Nos. 10, 11, 14 and 16, covered by defendant's points 5 and 6, were properly refused because: (a) The court was authorized to refuse these instructions on account of the multiplicity of instructions offered by the defense--eighteen only. (b) Because every point urged in these instructions was covered by instructions given for the defendant at its request, the only difference being the phraseology. In fact, the defendant fared well at the hands of the court on instructions, as most of those given covered the same point and served only to magnify the defense.
This is an action for damages for personal injuries sustained by plaintiff on December 21, 1923, when an automobile in which plaintiff was riding was struck by one of defendant's passenger trains at a crossing in St. Louis county, Missouri. There was a verdict and judgment in favor of plaintiff for $ 2500, from which defendant appeals.
The case was submitted on the allegation of negligence that defendant failed to give the statutory signal at the railroad crossing, and though the petition prayed for damages for personal injuries sustained by plaintiff as well as for damages to the automobile, the instructions limited the damages to the personal injuries.
The answer is a general denial, with pleas of contributory negligence on the part of plaintiff and the driver of the automobile.
The reply is a general denial.
The chief assignment of error goes to the action of the lower court in refusing a demurrer to the evidence at the close of the whole case, and the argument is made that both plaintiff and her brother, the driver of the automobile, saw and had notice of the approaching train before the collision, and that accordingly a failure, if any, to give the statutory signal was not the proximate cause of the injury, and that plaintiff is barred from recovery by the negligence of her driver, which is imputable to her. So, with the...
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