Meese v. Thompson

• Decision Date: 14 June 1939
• Docket Number: 35623
• Citation: 129 S.W.2d 847,344 Mo. 777
• Parties: Bert Meese v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

129 S.W.2d 847

344 Mo. 777

Bert Meese v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant

No. 35623

Supreme Court of Missouri

June 14, 1939

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

Reversed and remanded.

Thos J. Cole, Tom R. Moore and David E. Blair for appellant.

It is error to instruct the jury upon an issue of fact not supported by the evidence. The evidence must be within the pleadings; but the instructions must not be broader than the evidence. 64 C. J., p. 736, sec. 646; Camp, Admr., v Heelan, 43 Mo. 591; Nugent v. Curran, 77 Mo. 328; Gittings v. Jeffords, 292 Mo. 678, 239 S.W. 90; Degonia v. Ry. Co., 224 Mo. 589, 123 S.W. 807; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Birdsong v. Jones, 30 S.W. (2d), 1098; Sevedge v. Railroad Co., 331 Mo. 319, 53 S.W.2d 287; State ex rel. v. Shain, 125 S.W.2d 44; State ex rel. v. Hostetter, 125 S.W.2d 835.

F. P. Sizer, C. E. Reed and Wm. J. B. Myres for respondent.

Respondent insists that the court did not err in giving Instruction 1, because there is substantial testimony that the defendant, his agents, servants, and employees were negligent in not slackening the speed of the train after the operators thereof actually discovered the peril of plaintiff. Sevedge v. K. C., St. L. & C. Ry. Co., 331 Mo. 312, 53 S.W.2d 284; State ex rel. Baldwin v. Shain, 125 S.W.2d 41; State ex rel. Banks v. Hostetter, 125 S.W.2d 835; Gann v. C., R. I. & P. Ry. Co., 319 Mo. 214, 6 S.W.2d 39; Rummels v. Ill. Cent. Ry. Co., 224 Mo.App. 591, 15 S.W.2d 363; Dutton v. K. C. Term. Ry. Assn., 316 Mo. 979, 292 S.W. 710; Hinds v. C., B. & Q. Ry. Co., 85 S.W.2d 165; State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W.2d 864; Scott v. Term. Ry. Assn., 86 S.W.2d 116; Werndle v. St. L.-S. F. Ry. Co., 67 S.W.2d 810.

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

OPINION

HYDE

This is an action for damages for personal injuries sustained in a collision between plaintiff's truck and defendant's train. The case was submitted solely on negligence under the humanitarian rule. Plaintiff had a verdict for $ 10,000. Defendant has appealed from the judgment entered.

Defendant makes only one assignment of error, namely: That plaintiff's main instruction submitted failure to slacken the speed of the train, without substantial evidence on which to base such a charge of negligence. Defendant admits that plaintiff's evidence warranted his submission of failure to warn after plaintiff, oblivious to the approach of the train, came into a position of imminent peril. Plaintiff's evidence showed the following facts, which we take mainly from plaintiff's statement, without using quotation marks. [Quotations are from the record.] Plaintiff on the afternoon (about 5:20 P. M.) of the 28th day of January, 1936, was driving his Ford V-8 truck west on Macon Street, in Carthage, approaching the railroad crossing. (He said "the sun was down real low, shining right square in my face.") The defendant's passenger train, consisting of four coaches and an engine, was approaching the crossing from the south, down a one per cent grade, at a speed (according to the engineer) of approximately forty-five miles per hour. The defendant's track south of the Macon Street crossing was straight for a distance of 5,030 feet. About 1,200 feet south of the crossing the track passed through a cut. This cut was estimated to be from two feet to five or six feet deep. There was nothing to obstruct the view after the train came out of this cut. The track was downgrade on the whole five thousand feet of straight track south of the crossing. A plat was prepared by Mr. Norvell, civil engineer of the defendant, and he also made certain measurements relative to the distance the train could be seen approaching from the south. This evidence shows that the engineer could see the approach of an automobile from the east for forty feet, when the locomotive was 1,100 feet south of the crossing. The distance between the rails was four feet, eight and one-half inches. Macon Street was a smooth, graveled street, and was slightly upgrade going west approaching the crossing. The difference in elevation at the track was one foot and nine inches above that at the right of way line, fifty feet away, or approximately a three and one-half per cent grade. There was a small bridge or culvert (23 feet long) on Macon Street ninety-four feet east of the track.

Plaintiff had stopped to let a passenger out of his truck at a residence about one hundred fifty feet east of the crossing. Plaintiff then started his truck in low gear, and proceeded toward the crossing. Plaintiff said that his brakes "were good;" and he "could have stopped it right now . . . a couple or three feet; four-wheel brakes can stop awful sudden." About forty feet east of the track, he "stopped and looked" south down the track for the approach of a train, and then looked north. He also listened for a train and heard nothing. He then proceeded toward the crossing reaching a speed of eight or ten miles per hour. Other witnesses for plaintiff said he was going very slow. He did not look south again. Plaintiff never shifted to high gear, but drove onto the right of way approaching the crossing in second gear. When the plaintiff was within about twelve or fifteen feet of the crossing, he changed from second gear back into low gear. Plaintiff said that the Ford truck had slowed up, before he changed to low gear, "to about six or eight miles an hour." Mr. Tryon who was following the plaintiff in another truck, testified that the plaintiff's truck continued toward the crossing and never did slow up perceptibly before it was hit by the train. Mr. Tryon was right behind the plaintiff (he heard no whistle), and thought about going around him, but looked up from the bridge and saw the train, pulled behind the plaintiff's truck and stopped. Mr. Tryon brought his truck to a stop "right to the edge of the right-of-way," and watched the train and the plaintiff's truck approach the crossing. He estimated that the train was "about 375 or 400 feet up the track from the road," when he first saw it from the bridge; that plaintiff was then about fifteen feet from the track, "moving mighty slow;" that the train was only fifty or sixty feet away when he (Tryon) "got stopped," and that it was going sixty miles per hour. Plaintiff proceeded to go upon the track, and was hit by the locomotive. (Plaintiff said: "Just as I drove upon the track I discovered that the train was on me . . . I was right up on the track.") The engine struck the Ford truck between the front wheels and the cab, a distance of five or six feet back of the bumper. The length of the truck was twenty-one feet from the front bumper to the rear end of the bed. The train was stopped on a curve which began over two blocks south of the crossing. It was a clear day and both the track and street was dry.

It is obvious that these facts, with distances based on the testimony of Mr. Tryon, could not make a case of humanitarian negligence for failure to slacken speed, but at best would leave this matter in the realm of surmise, speculation and conjecture. [Sevedge v. K. C., St. L. & C. Railroad Co., 331 Mo. 312, 53 S.W.2d 284; State ex rel. Baldwin v. Shain (Mo.), 125 S.W.2d 41; State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W.2d 835.] However, plaintiff says that in two seconds more time he could have safely cleared the track and contends that defendant's evidence furnished the additional evidence necessary. This was the evidence of defendant's engineer and fireman. Plaintiff says that the following facts appear from all the evidence and are a sufficient basis for a finding for plaintiff on the issue of failure to slacken speed, to-wit: "(1) The distance in feet the engineer had in which to slacken the speed of the train after he saw the plaintiff in a position of peril (based on the fireman's testimony as to where the engineer whistled); (2) The exact spot the engineer did apply the emergency brakes (fixed by both the engineer and fireman as 60 to 80 feet from the crossing); (3) The distance the train traveled before the brakes took effect and began to slacken the speed of the train (the fireman said there would be some effect by the time the crossing was reached); (4) The distance the train traveled after the emergency brakes were applied (brakeman's testimony was about 1000 feet); (5) The miles per hour the train was traveling at the time the engineer saw the plaintiff in peril (45 miles per hour according to the engineer); (6) The speed of the truck at the time it was hit by the train (plaintiff's evidence); (7) The exact spot where the truck was when it was hit by the train (plaintiff's evidence); (8) The length of the truck in feet (plaintiff's evidence); (9) The distance in feet it had to travel to clear the approaching train (plaintiff's evidence); (10) They consist of the train and the condition of the brakes, track and weather (admitted)." The evidence as to stopping was that the rear end of the train stopped from 600 to 800 feet beyond the crossing and that the length of the train was from 300 to 400 feet.

Defendant's evidence was that plaintiff's truck ran into the side of the engine, bending the blow-off pipe "just to the rear or back of the main driving wheel," breaking off the lid of the journal oil box behind it, and bending the engine cab steps so they were "bent back in toward the back end of the tank and the bolts broken off of them." Defendant's engineer said the train was going about forty-five miles per hour, not working steam. He further testified: "About six or eight hundred feet south of this Macon Street crossing, I noticed an automobile truck going west ...