McGlothin v. Thompson

• Decision Date: 13 March 1941
• Docket Number: 36855
• Parties: Ruth Standridge McGlothin, Administratrix of the Estate of Owen Standridge, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

148 S.W.2d 558

347 Mo. 708

Ruth Standridge McGlothin, Administratrix of the Estate of Owen Standridge, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant

No. 36855

Supreme Court of Missouri

March 13, 1941

Appeal from Oregon Circuit Court; Hon. Will H. D. Green Judge.

Reversed.

Thos J. Cole, Fred W. Barrett, Henry D. Green and David E. Blair for appellant.

(1) The plaintiff failed to make a case for the jury. The evidence plainly shows that Ray Standridge was driving the automobile for deceased, Owen Standridge, his father, and that said Owen Standridge was responsible for the acts of his son and driver, Ray Standridge, and that said Ray Standridge was guilty of negligence, as a matter of law, equal to or greater than any possible negligence of defendant's employees and defendant's instructions in the nature of a demurrer to the evidence should have been given. Missouri Pac. Railroad Co. v. Sanders, 106 S.W.2d 182; Missouri Pac. Railroad Co. v. Brewer, 102 S.W.2d 538; Chicago, R. I. & P. Ry. Co. v. Tankersley, 113 S.W.2d 114; Missouri Pac. Railroad Co. v. Davis, 69 Law Rep. 299, 125 S.W.2d 785. (2) The Arkansas inference of negligence in failing to keep and maintain a lookout disappears entirely, when the evidence shows that a lookout was being kept and such inference thereafter cannot even serve as evidence, and it is error to submit such issue to the jury as a basis for recovery in the absence of some evidence tending to show that such lookout was not kept or maintained when the person or automobile was seen approaching and about to pass over the crossing. There was no evidence in this case whatever that such lookout was not being kept and maintained by the enginemen of defendant, and it was clearly error to submit to the jury any such issue, as the trial court did in his instructions. Missouri Pac. Railroad Co. v. Maxwell, 109 S.W.2d 1254; Missouri Pac. Railroad Co. v. Ross, 133 S.W.2d 29; St. Louis-S. F. Ry. Co. v. Mangum, 136 S.W.2d 136; Missouri Pac. Railroad Co. v. Miller, 136 S.W.2d 248. (3) There was no allegation in the petition that the crossing was obscured or obstructed by anything other than the cotton compress or cotton gin, and it was error to permit any testimony whatever tending to prove other facts than those alleged in the petition. The proof that tall bushes, grass and weeds grew there was not authorized by the petition. The petition plainly alleged that any obstruction to the vision was caused by the cotton compress or cotton gin, which was shown by all of the evidence not to have constituted the least obstruction to vision at the crossing, and the court clearly erred in permitting proof, over the objection and exception of defendant, that such view was obstructed by tall bushes, grass and weeds growing near the railroad tracks. The proof must follow the allegations of the petition. 49 C. J. 791, sec. 1167; Morrow v. Franklin, 289 Mo. 549, 233 S.W. 227. (4) The instructions given to the jury should be consistent and it is error for the trial court to give contradictory instructions. 27 Missouri Digest, sec. 243. There are no exceptions to this rule.

Gordon Doris and Sizer & Myres for respondent.

(1) Under Rule 15 of this court and the decisions, assignments of error are abandoned when not carried forward in appellant's points and authorities. Smith v. Thompson, 142 S.W.2d 70; Johnson v. Schuchardt, 333 Mo. 781, 63 S.W.2d 17; Farasy v. Hindert, 82 S.W.2d 573; Jeck v. O'Meara, 343 Mo. 559, 122 S.W.2d 897; Bank of Brimson v. Graham, 335 Mo. 1196, 76 S.W.2d 376; State ex rel. v. Pub. Serv. Comm., 341 Mo. 920, 110 S.W.2d 749; Burch v. Cleveland, C., C. & St. Louis Ry. Co., 328 Mo. 59, 40 S.W.2d 688; Kemmler v. Richmond Heights, 114 S.W.2d 994; Kuraner v. Columbia Natl. Bank, 230 Mo.App. 358, 90 S.W.2d 465. (2) The five contentions made by the appellant under his points and authorities are without foundation in law, and are not supported by the evidence, and should be overruled. (a) A prima facie case of negligence was made, and the demurrer to the evidence was properly overruled. Secs. 8562, 8568 8568a, 8575, Crawford & Moses' Digest; St. Louis-S. F. Railroad Co. v. Crick, 32 S.W.2d 815, 182 Ark. 312; St. Louis-S. F. Railroad Co. v. Cole, 27 S.W.2d 992; St. Louis-S. W. Railroad Co. v. Vaughn, 21 S.W.2d 971; Mo. Pacific Railroad Co. v. Crew, 62 S.W.2d 25, 187 Ark. 752; Mo. Pac. Railroad Co. v. Troy, 128 S.W.2d 1002; St. Louis-S. F. Railroad Co. v. Haymes, 5 S.W.2d 737; Mo. & N. A. Railroad Co. v. Bratton, 108 S.W. 518; Mo. Pac. Railroad Co. v. Curcio, 261 S.W. 896; St. Louis, I. M. & S. Railroad Co. v. Gibson, 155 S.W. 510. (b) The evidence shows that the lookout statute of Arkansas was flagrantly violated. Sec. 8568, Crawford & Moses' Digest; Huff v. Mo. Pac. Ry. Co., 280 S.W. 648; St. Louis, I. M. & S. Railroad Co. v. Gibson, 155 S.W. 510; Baldwin v. Clark, 76 S.W.2d 967; Mo. Pac. Railroad Co. v. Lemons, 127 S.W.2d 120; St. Louis, I. M. & S. Railroad Co. v. Blalock, 175 S.W. 1170; Mo. Pac. Railroad Co. v. Maxwell, 109 S.W.2d 1254; St. Louis-S. F. Railroad Co. v. Shepherd, 109 S.W.2d 109; Werndle v. St. Louis-S. F. Ry. Co., 67 S.W.2d 810; Gann v. Chicago, R. I. & P. Ry. Co., 6 S.W.2d 39; Mo. Pac. Railroad Co. v. Troy, 128 S.W.2d 1002; Smith v. Thompson, 142 S.W.2d 70; Mo. Pac. Railroad Co. v. Curcio, 261 S.W. 896; Mo. Pac. Railroad Co. v. Crew, 62 S.W.2d 25. (c) The court committed no reversible error in the admission of testimony that bushes, grass, weeds and buildings obstructed the view of one approaching the crossing. One ground of negligence relied upon is that the view of the crossing was obstructed. The appellant failed to file any timely motion to make petition more definite and certain. He also failed to make any timely objection to the introduction of testimony on this point; and filed no affidavit of surprise which is required by statute, but offered rebuttal testimony to meet this issue of fact. As to timely objection when evidence was offered. Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792; Doherty v. St. Louis Butter Co., 98 S.W.2d 742; Wolfson v. Cohen, 55 S.W.2d 677; Gateley v. St. L.-S. F. Ry. Co., 332 Mo. 1, 56 S.W.2d 54; Coffey v. Kresge Co., 102 S.W.2d 161. As to failure to file affidavit of surprise under statute. Sec. 817, R. S. 1929; Turner v. Chillicothe & Des Moines City Ry. Co., 51 Mo. 501; Porter v. Equitable Life Assur. Soc. of United States, 71 S.W.2d 766; Kaley v. Huntley, 333 Mo. 771, 88 S.W.2d 200; Hughes v. Lincoln Life Ins. Co., 84 S.W.2d 973; Fisher & Co. Real Estate Co. v. Staed Realty Co., 62 S.W. 443, 159 Mo. 562; Took v. Wells, 331 Mo. 249, 53 S.W.2d 389; Huggins v. Hannibal, 12 S.W.2d 504; Powell v. Schofield, 15 S.W.2d 876; Olive Street Bank of St. Louis v. Phillips, 162 S.W. 721, 179 Mo.App. 488.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action for damages for wrongful death under the statutes of Arkansas. [Sections 1074-1075, Crawford and Moses Digest of Laws of Arkansas; Sections 1277-1278, Pope's Digest of Laws of Arkansas.] Plaintiff's father was killed when his automobile was struck by defendant's train at Russellville, Arkansas. Plaintiff had a verdict for $ 20,000. Remittitur of $ 8000 was ordered and made. Judgment was entered for plaintiff for $ 12,000, and defendant has appealed.

The negligence charged and submitted by plaintiff was failure to give statutory crossing signals by bell and whistle (Section 8568a, Crawford and Moses Digest; Section 11135, Pope's Digest); failure to keep statutory constant lookout for persons on or about to go upon the tracks at the crossing (Section 8568, Crawford and Moses Digest; Section 11144, Pope's Digest); and common-law negligence in the operation of the train at an excessive rate of speed over the crossing and into the city. The defense was contributory negligence, because of which defendant contends that plaintiff failed to make a jury case. Under the Arkansas comparative negligence (Section 8575, Crawford and Moses Digest; Section 11153, Pope's Digest), this means a contention that the negligence of deceased was as a matter of law equal to or greater than any negligence shown on the part of defendant's employees. [Mo. Pac. Railroad Co. v. Davis (Ark.), 125 S.W.2d 785; C., R. I. & P. Railroad Co. v. Tankersley, 195 Ark. 365, 113 S.W.2d 114; Sanders v. Mo. Pac. Railroad Co., 197 Ark. 451, 106 S.W.2d 177; Mo. Pac. Railroad Co. v. Brewer, 193 Ark. 754, 102 S.W.2d 538.] Defendant also contends there was no evidence upon which to base the submission of failure to keep a constant lookout. These contentions require a consideration of the evidence from the viewpoint most favorable to plaintiff.

The crossing where the collision occurred was at the eastern edge of Russellville, a city of 7000 or 8000 population. The automobile (a Chevrolet), which plaintiff's father, Owen Standridge, owned and in which he was riding was going north on U.S. Highway No. 64, a concrete main highway through the State going from Russellville to Little Rock. It was being driven by his son, Ray Standridge, 18 years old. The train was going in a northwesterly direction, as the railroad crossed the highway at an angle of about 10 degrees north of due east and west. The highway was the eastern boundary of the city. The main track was on the same level as the highway at the crossing, but was slightly higher than the level of the ground to the east of the crossing. There was a switch track, south of the main line, which crossed the highway at the right of way line 50 feet from the center of the main track. (The distance between the nearest rails of the two tracks was 46 feet.) This switch track went to the southeast off of the right of way to a large compress warehouse. The...