Monroe v. Chicago & Alton Railroad Company

• Decision Date: 02 March 1920
• Citation: 219 S.W. 68,280 Mo. 483
• Parties: T. M. MONROE, Appellant, v. CHICAGO & ALTON RAILROAD COMPANY et al
• Court: Missouri Supreme Court

219 S.W. 68

280 Mo. 483

T. M. MONROE, Appellant, v. CHICAGO & ALTON RAILROAD COMPANY et al

Supreme Court of Missouri, First Division

March 2, 1920

Appeal from Audrain Circuit Court.-- Hon. J. D. Barnett, Judge.

Reversed and remanded.

Fauntleroy Cullen & Hay for appellant.

(1)The court erred in giving the instruction for the defendant placing the burden of proof upon plaintiff to show that the violation of the statute, in failing to give signals, was the cause of the accident.McNulty v. Railroad,203 Mo 477;Green v. Mo. Pac. Ry. Co.,192 Mo. 142;Huckshold v. Ry. Co.,90 Mo. 556;Kerr v Bush,198 Mo.App. 611.(2)The court erred in instructing the jury that any degree of negligence contributing in the least degree, would bar plaintiff's right to recovery.Howard v. Scarritt Estate Co.,267 Mo. 398;Moore v. Rapid Transit Co.,126 Mo. 265;Oates v. Metrop. Street Ry. Co.,168 Mo. 547;Chicago & E. I. Railroad v. Randolph,65 N.E. 142;Harvey v. C. & A. Ry. Co.,116 Ill. 509.(3)The court erred in instructing the jury that the plaintiff could not recover if he failed to do everything humanly possible, whereas he was required to use ordinary care only.Railway v. Trich,117 Pa. 390, 2 Am. St. 674.(4)The court erred in instructing the jury that plaintiff could not recover if he discovered the danger when it was too late to stop or to avoid a collision.

A. C. Whitson and Charles M. Miller for respondents.

(1)Appellant's abstract of the record entries is insufficient to permit this court to review anything but the record proper for the reason that it fails to show that a motion for new trial was filed within four days from the date of verdict and during the term.Huston v. Allen,236 Mo. 645;Harding v. Bedoll,202 Mo. 634;Hill v. Butler Co.,195 Mo. 514;Pippard v. Cook,203 S.W. 236.(2) The verdict and judgment are for the right parties and that the court erred in not peremptorily instructing the jury to return a verdict in favor of the defendants on the ground that plaintiff was guilty of negligence as a matter of law, barring any recovery.The cases which bear upon the negligence of the driver of a team at a railroad crossing are not applicable irrespective of this statute to a person driving an automobile over a railroad crossing.Maidment v. Railroad,168 F. 21, 21 L.R.A. (N.S.) 794;Brommer v. Railroad,179 F. 577, 29 L.R.A. (N.S.) 924;Dernberg v. Railroad,234 F. 405;William v. Railroad,102 Kan. 271.If the view was restricted so that plaintiff could not see, he should have stopped his automobile and engine and made observations, which he did not do, and by reason thereof was guilty of negligence.Under the statutehe was required to exercise the highest degree of care, and can it be said he was not guilty of negligence as a matter of law?Osborn v. Railroad,179 Mo.App. 260;Underwood v. Railroad,182 Mo.App. 262.See alsoKelsey v. Railroad,129 Mo. 372;Vandeventer v. C. & A.,177 S.W. 834;Stottler v. C. & A.,204 Mo. 619.(3)Defendants' instruction on the burden of proof is correct and proper.The burden of plaintiff is limited to proving "his case."The opinion on its face in the McNulty case is erroneous and should not be applied to the case at bar.

OPINION

BLAIR, P. J.

This is an action for damages for injuries sustained by plaintiff when his automobile was struck by one of defendant's passenger trains at a street crossing in the village of Laddonia.The verdict and judgment were for defendant, and plaintiff appealed.The facts appear in the opinion.

I.The point is made that the abstract of the record proper fails to show that a motion for new trial was filed in time.The fact is shown by the short transcript, and this is sufficient.[State ex rel. Caruthers v. Drainage District,271 Mo. 429, 196 S.W. 1115;Mason v. Hutchison,201 S.W. 593;Pippert v. Cook, 203 S.W. 236.]

II.A village ordinance restricted the speed of trains to eight miles per hour.There is evidence the train in question was running at the rate of forty-five miles, or more, per hour, and that no signals of any kind were given.Defendant does not deny there was evidence tending to show negligence on its part.

III.At defendant's request the court instructed the jury that "the burden is upon plaintiff to prove his case by a fair preponderance of the credible testimony introduced, and if a fair preponderance of such testimony is in favor of the defendant, or if it be equally balanced, then it is your duty to return a verdict in favor of defendant."The statute in force (Sec. 3140, R. S. 1909) relieved plaintiff, after he offered evidence tending to show no signal was given, from the burden of proving that the failure of defendant to give the proper signal was the cause of his injury."The statute supplies the causal connection."[McGee v. Railroad, 214 Mo. 530, 544, 545.]It throws upon defendant the burden of proving the violation of the statute did not cause the injury.[Green v. Railway, 192 Mo. 131.]The causal relation between the violation of Section 3140 and plaintiff's injury is an essential element of his case.It is no less so because the statute supplies it prima-facie.When the court told the jury that plaintiff must prove his case by a "fair preponderance of the testimony" it deprived him of the benefit of the statute.[McNulty v. Railroad,203 Mo. 475;Kerr v. Bush,198 Mo.App. 607, 200 S.W. 672, et seq.]The instruction excludes the presumption the Legislature introduced.Even if it could be reasoned that the instruction could fairly be construed to require plaintiff to prove only those facts which the law requires him to establish by evidence, yet this conclusion would depend upon a legal construction of the language of the instruction and a choice between interpretations which, in the practical administration of justice, a jury ought not to be required to undertake.The instruction was erroneous.Defendant also contends the error was invited.There is in plaintiff's instructions no reference to the burden of proof except in connection with the issue of contributory negligence.

IV.For defendant an instruction was given to the effect that if plaintiff was negligent "and that negligence, if any, contributed in the least degree to his injuries," the verdict must be for defendant.In another instruction the words "in any degree" appear instead of the words "in the least degree."In instructions for plaintiff a recovery was authorized upon stated facts, if found, "unless you believe from the evidence plaintiff was guilty of negligence which contributed to his injury," etc.The vice of plaintiff's instructions is the same as that of defendant's, and of invited or common error complaint may not effectually be made.On another trial these errors can be avoided.Contributory negligence, to bar a plaintiff, must enter into and constitute some part of the whole negligence which is the efficient or proximate cause of the injury.[Howard v. Scarritt Estate Co.,267 Mo. 398, 184 S.W. 1144;Oates v. Railway,168 Mo. 535.]

V.One of defendant's instructions was to the effect that trains have the right of way at crossings "and it is therefore the duty of a traveler attempting to cross a railroad track to ascertain, if possible, the approach of a train and keep off the track so as to avoid collision."In defendant's brief it is said this means "if by looking and listening he would have been aware of the approaching train and could thereby have avoided the injury."It seems to us this instruction goes further than to require even the very highest degree of care.It is, in effect, a direction to find for defendant.It is always possible for one about to cross a railroad track to discover whether a train is approaching.In any crossing case which is to be submitted to a jury at all this instruction would be erroneous.

VI.Instruction six authorizes a verdict for defendant, regardless of the failure to give the proper signal, if the jury find the violation of the speed ordinance was "not the real and direct cause" of injury.There are other errors in the instructions given for defendant, and in some given for plaintiff, but these fall within principles announced in this opinion, or are of such character that they are correctable by the application of simple principles, and need not be considered in detail.

VII.Defendant contends plaintiff was guilty of contributory negligence as a matter of law, and the judgment must therefore be affirmed, regardless of errors on the trial."The rule, however, in regard to contributory negligence of the injured party remains the same in this class of cases as in others."[McGee v. Railroad,214 Mo. 530, 544, 545;Kerr v. Bush, supra.]Defendant's argument is that (1)the statute(Laws of 1911, p. 330) imposed upon plaintiff a high degree of care; (2) the driver of an automobile, because of the nature of his vehicle, is subject to a stricter rule than applies to the driver of a horse-drawn vehicle, and a stop before crossing a railroad track is an absolute prerequisite to a recovery for injuries suffered there; (3) the obstructions at the crossing imposed an absolute duty to stop; and (4) the evidence conclusively shows that had plaintiff looked he must have seen.

Unless contributory negligence conclusively appears in such way that the trial court would have been justified in directing a verdict for defendant, this contention cannot be sustained.In this State it is the rule that it is the duty of one about to cross a railroad track to look and listen "and sometimes to stop in order the better to see and hear, yet it is not always incumbent upon him to stop for that purpose whether he should do so in a given case depends on the circumstances, and if it is doubtful the jury are to...