McGraw v. Montgomery

• Decision Date: 09 December 1944
• Citation: McGraw v. Montgomery, 239 Mo.App. 239, 185 S.W.2d 309 (Kan. App. 1944)
• Parties: Frank McGraw v. Hugh Montgomery and Kansas City, St. Louis and Chicago Railroad Company
• Court: Kansas Court of Appeals

185 S.W.2d 309

239 Mo.App. 239

Frank McGraw v. Hugh Montgomery and Kansas City, St. Louis and Chicago Railroad Company

Court of Appeals of Missouri, Kansas City

December 9, 1944

Appeal from Circuit Court of Saline County; Hon. Robert D. Johnson Judge.

Reversed and remanded.

W H. Meschede and Charles M. Miller for appellants.

(1) The peremptory instructions requested by each of the defendants should have been given as plaintiff's negligence in failing to exercise the highest practical degree of care to know of the passenger train and avoid collision with it at the crossing barred recovery.Goodman v. B. & O Railroad,275 U.S. 64, 48 S.Ct. 24, 25;Fitzpatrick v. K. C. Southern Ry.,347 Mo. 57, 146 S.W.2d 560, 567, 568;Monroe v. Chicago & Alton Rd.,297 Mo. 633, 249 S.W. 644;K. C. Southern v. Shain,340 Mo. 1195, 105 S.W.2d 915, 921.(2) The evidence failed to establish facts sufficient to make the defendantRailroad Company liable for the acts of the Alton Railroad Company, or defendantMontgomery.Hulen v. Wheelock et al.,318 Mo. 502, 300 S.W. 479, 485.(3) The signals required of the train by the statute, was limited to only the ringing of the bell on the train, the crossing being in the city of Marshall.Sec. 5213, R. S. Mo. 1939.(4) Instruction predicated on the statutory crossing signals improperly directed a verdict for the plaintiff, without having included therein his pleaded exercise of the highest practical degree of care at the crossing to avoid collision with the train at the crossing, and was bound by his pleading, which was conclusive.Creighton v. Mo. Pac. Rd. Co.(Mo. App.),66 S.W.2d 980, 982;Farm & Home Sav. & Loan, 231 Mo.App. 87, 98 S.W.2d 320;Heigold v. United Ry. Co.,308 Mo. 142, 271 S.W. 773, 777.(5)Plaintiff's given instruction predicated upon the statutory crossing signals, erroneously directed a verdict against the engineer, for under the statute, the engineer could not be held liable.Sec. 5213, R. S. Mo. 1939;Lynch v. Railroad Co.,330 Mo. 89, 61 S.W.2d 918, 925.(6) The evidence with respect to the conditions at the crossing, did not warrant the giving of plaintiff's instruction submitting the failure to have a flagman at the crosing to warn of approaching trains, constituted actionable negligence.Homan v. Mo. Pac. R. Co.,334 Mo. 61, 64 S.W.2d 617, 623;Secs. 5627,5213,5214, R. S. Mo. 1939.(7) Admission in evidence in rebuttal of the ringing of the electric crossing bell a year and 8 months after the accident in question, was prejudicial error.O'Shea v. Opp,340 Mo. 1042, 111 S.W.2d 40, 44;Herman v. Light Co.,144 Mo.App. 147, 129 S.W. 414, 417;Schaefer v. Frazer-Davis Const. Co.(Mo. App.),125 S.W.2d 897, 898;Van Edwards v. Barber Asphalt Co., 92 Mo.App. 221.

James & Bacon, W. T. Bellamy and Louis J. Rasse for respondent.

(1) The peremptory instructions requested by each of the defendants were properly refused, as the negligence of plaintiff, if any, was a matter for the jury.Creighton v. Mo. Pac. R. Co.(Mo. App.),66 S.W.2d 982;Stegner v. M.-K.-T. R. Co.,64 S.W.2d 691;Lynch v. M.-K.-T. R. Co.,61 S.W.2d 918;Gannon v. Laclede Gas & Light Co.,145 Mo. 502(leading case);Clucke v. Abe,40 S.W.2d 558.(2) The evidence was sufficient to make the defendantRailroad Company liable for the acts of the Alton Railroad Company, or defendantMontgomery.Nickell v. Kansas City, St. Louis & Chicago Railroad Company,41 S.W.2d 596;Sections 5162,5163, Revised Statutes of Missouri for the year 1939.(3)Plaintiff's given instruction did correctly declare the law with respect to the statutory crossing signals and especially reading the same with defendants' given instructions as the instructions must be all read together.Fowlkes v. Fleming,17 S.W.2d 511, l. c. 516;Burns v. Aetna Life Ins. Co.,123 S.W.2d 185, l. c. 192.(4) The instructions all must be read together.Stegner v. M.-K.-T. Railroad Company,64 S.W.2d 691;Heigold v. United Railways Co.,271 S.W. 773, l. c. 778;Long v. F. W. Woolworth Company,159 S.W.2d 619.(5) There were two other instructions of other charges of negligence, as the violation of the speed limit under the city ordinances and the failure to have a flagman at a dangerous crossing created by the defendants and known to be dangerous by the engineer.Stegner v. M.-K.-T. Railroad Company,64 S.W.2d 691.(6) The evidence with respect to the dangerous conditions at the crossing did warrant plaintiff's instruction submitting to the jury the failure to have a flagman at the crossing to warn of approaching trains.Homan v. Mo. Pac.,334 Mo. 61, 64 S.W.2d 617;Welch v. Hannibal & St. Joseph Railroad Company,72 Mo. 451;22 R. C. L. 990, Art. 217;Grand Trunk Railroad Company v. Ives,144 U.S. 408;Toeneboehn v. St. Louis-San Fran. Railroad Company,317 Mo. 1096, 298 S.W. 795.(7) Impeaching testimony is within the sound discretion of the court.Goins v. Moberly, 127 Mo. 116.

OPINION

Dew, J.

This is a suit against the Kansas City, St. Louis and Chicago Railroad Company and Hugh Montgomery, engineer, for the recovery of damages for alleged injuries to person and property of the respondent.The case grows out of a collision between the automobile of the respondent, which he was driving at the time in question, and a passenger train of the Alton Railroad Company, on April 9, 1942, in Marshall, Missouri.A trial was had before a jury and resulted in a verdict and judgment for respondent against both defendants.By the verdict and judgment respondent was awarded $ 4412.00 for personal injuries, $ 522.00 for loss of automobile and $ 771.00 physicians' and medical expenses, a total of $ 5705.00.Both defendants have appealed.

Under respondent's petition, proof and instructions his case was predicated on alleged negligent speed of the train in excess of the maximum as prescribed under ordinance of the city of Marshall, Missouri, alleged failure to give the statutory signals, and alleged negligence in failing to have a flagman at the crossing in question.Defendants each filed separate answers, consisting of general denials, plea of contributory negligence on the part of respondent, and defendant railroad company denied jurisdiction of the court by reason of its having been declared a bankrupt since the filing of the case.

Plaintiff's evidence tended to show as follows: Jefferson Street runs north and south in the city of Marshall, Missouri.The Alton railroad crosses Jefferson Street in a southeasterly and northwesterly direction.At the crossing in question there are three railroad tracks.The first track, as one approaches from the north, is a switch track; the next, or middle track, is known as the passing track; the south or third track is the main track.This crossing is located about six blocks from the public square and there is much travel over and across the same.At the crossing and on the north side thereof, a person looking to the right or west, without any obstruction from either track can see at least to the railroad station some 1000 feet distant.On the left-hand side of the crossing from this standpoint, the view of the track to the left or east is partially obstructed by a store and garage building, which is located very close to the right-of-way of the railroad, beyond which building the track curves slightly northward.

Respondent's evidence further tended to show that respondent, county collector (presumably of Saline County, Missouri) a resident of Marshall, Missouri, and formerly superintendent of schools at Napton, Missouri, was on the date in question -- April 9, 1942 -- about 37 years of age.On said date he was driving his 1941 Ford V-8 tudor automobile in a southerly direction on North Jefferson Street in said town of Marshall, and approaching the railroad crossing in question.It had been raining during the morning and it was misting at the time, the street and the crossing being still wet.Respondent's right front window was down two or three inches; the windshield wipers were operating and the visibility through the windshield and the windows was good.The respondent approached the crossing at fifteen or twenty miles an hour and then slowed down and finally came to a complete stop for from two to five seconds, with the front end of his automobile two to three feet north of the north track.He noticed a line of cars standing on the middle track with the end of the train, or caboose, located just over the west side of the pedestrian sidewalk on the west side of the crossing, which standing train obstructed his view of the main track as he looked to the west.This standing freight train extended to the depot, located about 1000 feet west of the crossing.Plaintiff had traveled this road frequently and was familiar with the crossing in question.He looked to the east and to the west and, hearing no bell, whistle, or horn, and there being no flagman present, and seeing no train approaching, plaintiff shifted his car to second gear and started across the crossing at a speed of from five to ten miles per hour until his front wheels were midway between the second and third tracks when, for the first time, he saw the east bound gas-electric train of two cars on said main track when, he said, he had no time to stop his car, the train being within twelve or fifteen feet of him, and no opportunity to put on his brakes or to get out of the way of the approaching train.The train at the time it struck the respondent's automobile was traveling about thirty miles per hour.The train struck the automobile where the right front door hooks onto the right front fender, and pushed the automobile and the respondent within it along the track for a distance of about 275 feet.

No point is made in this appeal as to the amount of the verdict and it is not...