Moeller v. Missouri Pac. R. Co.

• Decision Date: 02 June 1925
• Docket Number: No. 18782.,18782.
• Citation: 272 S.W. 990
• Parties: MOELLER v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

272 S.W. 990

MOELLER v. MISSOURI PAC. R. CO.

No. 18782.

St. Louis Court of Appeals. Missouri.

June 2, 1925.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by George Moeller against the Missouri Pacific Railroad Company. From a judgment for defendant, the plaintiff appeals. Affirmed.

Conrad Paeben and James T. Roberts, both of St. Louis, for appellant.

James F. Green and M. U. Hayden, both of St. Louis, for respondent.

BECKER, J.

Plaintiff below sued to recover damages for the destruction of an automobile truck, which was struck by one of the defendant's passenger trains, at a point where Catalan street, in the city of St. Louis, Mo., crosses the track of the defendant railroad. On trial the verdict was for the defendant and, from the resulting judgment, the plaintiff appeals.

Appellant, plaintiff below, urges but one assignment of error, namely, the giving of instruction numbered three at the request of the defendant. Said instruction reads as follows:

"The court instructs the jury that even though you may find and believe from the evidence that the watchman in the employ of defendant was not in sight of the driver of plaintiff's truck as the latter approached the tracks of defendant from the east, nevertheless the driver of said truck could not entirely rely upon that fact, if it be a fact, but, on the contrary, it was the duty of said driver before starting across the south-bound track to exercise ordinary care by either looking or listening to ascertain whether or not the train mentioned in the evidence was approaching on the south-bound track, and if you find and believe from the evidence that said driver failed to exercise such care, but continued to drive westwardly across said tracks relying upon the fact that he did not see the watchman, and did not receive any signal from the watchman either to stop or go ahead, and that such failure, if any, on his part directly contributed to the collision between said truck, and the train mentioned in the evidence, then the plaintiff is not entitled to recover, and your verdict must be for the defendant."

Appellant contends that said instruction goes beyond the purview of the pleadings and is not supported by the evidence in the case. After examining the record, we have come to the conclusion the point is without merit. In considering the assignment of error, we note that plaintiff's petition contains several assignments of negligence, one thereof reading as follows:

"(5) In failing, when its agents and servants saw, or by the exercise of ordinary care would have seen, plaintiff's truck in a position of danger, to sound a whistle or other warning of the danger of the approaching train, to plaintiff's agent and servant in charge of said truck."

The defendant's answer was a general denial coupled with two assignments of contributory negligence, one that the driver of the truck in question, without looking or listening for an approaching train, drove said truck upon defendant's track immediately in front of an approaching train; second, that the driver of the truck failed to drive the same in a careful and prudent manner, and failed to exercise the highest degree of care either by looking or listening before driving upon the track, mentioned in plaintiff's petition, to discover and avoid being struck by the train mentioned therein. Having set out so much of the pleadings as bear upon the assignment of error here raised, we will next advert to such testimony in the record which is germane to the question in hand.

Plaintiff, owner of the truck, adduced as a witness in his behalf Arthur Nerper, who was acting as his chauffeur in charge of the truck at the time in question. We note the following excerpts from his direct examination:

"Q. Now, then, Mr. Nerper, the different times that you have been down there, have you seen a watchman around there? A. Yes, sir."

"Q. As you were going west on Catalan street, did you see the watchman? A. He was sitting in the little house there."

"Q. Answer the question, yes or no. A. Yes, sir."

"Q. And where was he? A. Sitting in the little house there; sitting there something like this (indicating). Here was the way he was sitting (indicating)."

"Q. Sitting in a stooping position? A. Yes, sir."

"Q. That is with his head down? A. Yes, sir."

"Q. Did he come out of the house at any time while you were coming west on Catalan? A. Not then, no, sir."

"Q. How? A. He didn't come out at all. I didn't see him."

"Q. Now, then, when you got out to the place that you could look south on the northbound main track and north on the south-bound main track, did the watchman come out at that time? A. No, sir."

"Q. Did he change his position in the house at all? A. No, sir; none whatever."

"Q. And...