McGrew v. Thompson

• Decision Date: 02 January 1945
• Docket Number: 38483
• Citation: 184 S.W.2d 994,353 Mo. 856
• Parties: M. E. McGrew v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

184 S.W.2d 994

353 Mo. 856

M. E. McGrew v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, Appellant

No. 38483

Supreme Court of Missouri

January 2, 1945

Rehearing Denied or Motion to Transfer to Banc Overruled February 5, 1945.

Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.

Reversed and remanded.

Thos J. Cole and McReynolds & Flanigan for appellant.

(1) The court erred in submitting the case to the jury. Defendant's demurrer to the evidence should have been sustained. Sirounian v. Terminal Railroad Assn., 160 S.W.2d 454; Ziegelmeier v. East St. Louis & Suburban Ry. Co., 51 S.W.2d l.c. 1030; Kibble v. Q., O. & K.C.R. Co., 227 S.W. l.c. 46; Nugent v. Kauffman Milling Co., 131 Mo. 241; Russell v. Johnson, 160 S.W.2d 701. (2) The court erred in giving plaintiff's instruction number two. Said instruction was fatally defective in not requiring the jury to find that defendant had knowledge of the defect in the crossing, or to find that such defect had existed long enough for the defendant to have known of it and to have repaired it. Smith v. Sears, Roebuck & Co., 117 S.W.2d 658; Liddle v. Thompson, 162 S.W.2d 614; Nixon v. Hannibal & St. Joseph Railroad Co., 141 Mo. 425; St. L. & S.F.R. Co. v. Dyer, 87 Ark. 531, 113 S.W. 49; Mo. Pac. R. Co. v. Hare, 108 S.W.2d 577; Kroger Grocery & Baking Co. v. Dempsey, 143 S.W.2d 564; 45 C.J., pp. 659, 660.

Partain & Agee, Lyman L. Mikel, Kelsey Norman and Henry Warten for respondent.

(1) Demurrer to plaintiff's evidence can be sustained only where the facts in evidence and legitimate inferences therefrom are so strongly against plaintiff as to leave no room for reasonable minds to differ. McCormick v. Lowe & Campbell A.G. Co., 144 S.W.2d 866. (2) All questions of fact and effect of evidence is for the jury. Carson v. Hagist, 143 S.W.2d 355. (3) The court should never withdraw a question from the jury unless all reasonable men in honest exercise of fair, impartial judgment would draw same conclusion. Courtney v. Ocean A. and G. Corp., 142 S.W.2d 858. (4) Where plaintiff's evidence makes prima facie case and defendant's evidence, tho uncontradicted, would, if true, overcome plaintiff's prima facie case, the court cannot direct a verdict. Williams v. American A. & L. Ins. Co., 112 S.W.2d 909. (5) Where reasonable minds might differ and different conclusions can be drawn from evidence on questions of negligence or contributory negligence, it is for the jury. Phelps v. Montgomery Ward & Co., 107 S.W.2d 939. (6) Ordinarily negligence is not a question of law, but one of fact for jury though undisputed. Brown v. Terminal Railroad Assn., 85 S.W.2d 226. (7) The verdict of the jury cannot be arbitrarily set aside unless some legal ground for doing so be shown, and the statute giving the court the right upon good cause shown limits the court's right. McDonald v. Heinemann, 141 S.W.2d 177. (8) If a conclusion contrary to plaintiff's negligence is fairly deducible from the evidence and all reasonable inferences, then the issue is for the jury. Lamb v. Mo. Pac. Railroad Co., 48 S.W. 659. (9) When motorist is unfamiliar with the highway and crossing, then it is for the jury to say whether he was guilty of contributory negligence. Secs. 5214, 5627, R.S. 1939; Blackburn v. St. Louis, 121 S.W.2d 727. (10) The error must be prejudicial to substantial rights of the complaining party on the merits of the case. Sec. 1168, R.S. 1939; Ittner v. Hughes, 133 Mo. 679. (11) Where plaintiff's evidence touching issue was not contrary to physical facts or inherently impossible and unbelievable, its credibility is for the jury. Person v. City of Independence, 14 S.W.2d 175. (12) The test to be applied by the trial court on the point that the verdict was against overwhelming weight of evidence and the result of passion and prejudice is whether there was substantial evidence to support the verdict. Morris v. Freyer, 151 S.W.2d 515. (13) A certain amount of discretion in granting a new trial is vested in the trial court. Nelson v. Perky, 151 S.W.2d 476. (14) The plaintiff has no right to look for danger when he has no cause to anticipate danger. Cento v. Bldg. Co., 99 S.W.2d 1. (15) The jury may believe all or any part of the testimony adduced at the trial. No Dust O. Co. v. Home Trust Co., 46 S.W.2d 203; Atchison v. Mo. Pac. Railroad Co., 46 S.W.2d 230. (16) Contributory negligence as a matter of law can seldom be established by oral testimony of the defendant, but must appear from the plaintiff's testimony or the testimony of the defendant conceded to be true or such as leaves no room for doubt. State ex rel. v. Shain, 163 S.W.2d 967. (17) The weight and value of the testimony and the credibility of the witness are for the jury. Brooks v. City of Ste. Genevieve, 164 S.W.2d 164. (18) In determining whether plaintiff made a submissible case for the jury, the court must view all of the evidence in the light most favorable to him, taking his testimony as true, though contradicted by defendant's testimony and give him benefit of all of defendant's testimony and all reasonable inferences from all of the facts and circumstances tending to support plaintiff's case. Marshak v. Wm. J. Brennan Gro. Co., 83 S.W.2d 185. (19) If the substantial evidence on issue of negligence and contributory negligence in absence of error during the trial the jury verdict is final notwithstanding appellate judges may be of the opinion that the verdict should have been for the other party. Brook v. City of Ste. Genevieve, 164 S.W.2d 164. (20) The appellate court should not disturb the verdict on the weight of the evidence. Carter v. Casey, 153 S.W.2d 744.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Miles E. McGrew instituted this action to recover damages for personal injuries allegedly occasioned by a defective and unsafe railroad-highway grade intersection causing the automobile he was operating to overturn. A ten-juror verdict was returned for $ 10,000. Judgment followed and Guy A. Thompson, as Trustee for the Missouri Pacific Railroad Company, appealed. He claims error in the submission of plaintiff's cause; in the giving of plaintiff's instruction No. 1, and that a new trial should have been granted because the verdict was against the overwhelming weight of the evidence. The accident happened near Van Buren, Arkansas.

The contention that no case was made is based upon the proposition that under the Arkansas law plaintiff was guilty of contributory negligence as a matter of law; viz. (quoting): "Every man who has had the slightest experience in riding in or driving motor cars knows that a car proceeding at 12 miles an hour, striking an obstacle and proceeding onward at about the same speed for 400 feet in a sandy ditch and climbing a bank, does not, in the last 15 feet of its course, pick up enough speed to overturn itself in a somersault, flipping over on its top." The railroad raises no issue respecting actionable negligence. The pertinent facts follow:

Plaintiff's case in the respect questioned rests upon two witnesses himself and his companion, Vernie H. LaGrand. Plaintiff was operating a maroon 4-door Pontiac sedan. It had just been overhauled, was in good working condition, and was taken on this trip to "break it in" and to look for used automobiles for sale. They were returning, proceeding west, about noon on March 25, 1940, over the Kibler highway, a gravel and dirt highway east of Van Buren. The accident occurred at defendant's railroad intersection with the highway near the Eagle-Picher Smelter. The Kibler highway, for one proceeding west in the vicinity of the intersection, goes down a steep hill, not a very long hill, sort of like a "shoot-the-shoot" and then across the Flatrock creek bridge, which is about a quarter mile east of the railroad intersection. The highway is practically level from the bridge to the intersection, there being a very slight dip in the highway. Photographs and the physical facts established confirm the oral testimony that the highway is practically level from just west of the bridge to the intersection. Two railroad tracks intersect the highway -- a main line track on the east and a switch track to the smelter on the west. The east rail of the main track and the west rail of the switch track are from 19 to 20 feet apart. The railroad tracks are on a curve, calling for the east rails to be higher than the west rails to prevent derailments; the same principle that calls for banking the outside of an automobile highway curve. The east rail of each track was a little less than 6 inches higher than the west rail of the respective track, the east rail of the main line track being between (nearer) 11 1/2 and 12 inches higher than the west rail of the switch track. As to the general condition of the crossing, plaintiff's brief states that the highway west of the tracks was from 12 to 24 inches below the grade of the highway east of the tracks; that the grade of the highway (say 2 or 3 feet) east of the track was between 6 and 12 inches higher than the level of the east tracks, causing west-bound traffic to proceed downgrade across the tracks and then level off on the highway west of the track. The highway immediately east of the tracks had been raised and properly drained to eliminate a "mud hole" that developed after every rain. The testimony established that the crossing was in bad condition; for instance, that between the rails were chug holes and the railroad crossing planks were broken, loose, and uneven. On the north side of the highway, west of the railroad track, was a high embankment, higher than the top of an automobile, 10 or 12 feet high. On the south side of the highway was a pasture, about 3 or 4 feet below the level of the highway, there being...