Monroe v. Chicago & A. R. Co.

• Decision Date: 03 March 1923
• Docket Number: No. 23157.,23157.
• Citation: 297 Mo. 633,249 S.W. 644
• Court: Missouri Supreme Court
• Parties: MONROE v. CHICAGO & A. R. CO. et al.

249 S.W. 644

297 Mo. 633

MONROE v. CHICAGO & A. R. CO. et al.

No. 23157.

Supreme Court Cf. Missouri, in Banc.

March 3, 1923.

Respondent's Motion to Modify or Grant a Rehearing Overruled April 2, 1923.

Appeal from Circuit Court, Audrain County; C. T. Hays, Judge.

Action by T. M. Monroe against the Chicago & Alton Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed.

A. C. Whitson, of Mexico, Mo., and Alpha N. Brown and Charles M. Miller, both of Kansas City, for appellants.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, and Rodgers & Buffington, of Mexico, Mo., for respondent.

HIGBEE, J.

This is an action for damages .for injuries sustained by plaintiff when his automobile was struck and demolished by one of defendant's passenger trains at the crossing of Pine street in the village of Laddonia, Audrain county, Mo., on July 17, 1913. Two juries disagreed. On the third trial the verdict was for the defendants. On appeal this was reversed, and a new trial ordered. See opinion in 280 Mo. 483, 491, 219 S. W. 68, for a statement of the facts as they appeared on the first appeal. On a retrial the verdict was for the plaintiff in the sum of $7,950, for personal injuries and damages to his automobile.

The railroad runs from east to west through the village. The station is on the north side of the main track and east of Pine street, which runs north and south through the village. There is a switch or aiding on the south side of the main track, which siding is about one-half mile long. Front street is on the south side of the right of way. There are structures, buildings, and trees on the south side of the siding which obstruct the view to the east as one approaches Pine street crossing from the south.

Plaintiff, a physician, had lived in Laddonia some years, having a drug store and office about one block east of Pine street crossing and south of defendant's station. He was familiar with the surroundings and knew the schedules of defendant's trains. He testified "there was a regular mail train that came through every morning, one mail train, and I presume this was the same train." He did a general practice in the country and often drove his automobile over this crossing and knew of the obstructions referred to. On the morning of the accident he drove his car westward on Front street and turned to the north to crass the railroad on Pine street. He testified:

That the derail was about 20 or 30 feet from the middle of the street, and that he drove within 25 feet of the box cars; that he looked attentively both east and west; could see no train coming from the west, "and my attention was all directed to the east, being obstructed by those box cars, and there was no crossing bell ringing, and I supposed that everything was clear, and I ventured on across the C. & A. crossing.

"Q. Now, after getting far enough north so that your line of vision would clear the box cars, where were the (rant wheels of your car? A. Well, when I got up so I could see diagonally across the end of this box car that was standing at the derail, I could see down the main line something like 100 or 150 feet, and at that time my front wheels of the automobile were practically on the south rail of the main track. * * *

"Q. And what gear were you running in? A. Intermediate speed.

"Q. About what rate of speed did you cross there? A. About 4 miles an hour.

"Q. Now, when you got so that your line of vision cleared the cars, did you see any approaching engine or train? A. After I got in the position just stated, why, about 100 or 150 feet I saw this engine coming; yes, sir.

"Q. And your car was then where with reference to the rails upon which this engine was running? A. The front wheels were on or which this train was coming.

"Q. Now, prior to that time had you heard anything of any train coming from the east or west? A. I never heard a thing; no, sir.

"Q. Had you been able to see anything prior to that time, any train coming from the east? A. No, sir; 1 could not. * * *

"Q. What did you attempt to do? A. I tried to go forward; increased the speed of my car and tried to get off the track as quick as possible.

"Q. Could you back as quick as you could go forward and clear the track? A. No, sir; I would have had to have reversed my gears, end I figured I could come nearer getting across the track by going ahead than by backing up.

"Q. Well, did you get by? A. Except the rear of the car.

"Q. The part you were sitting in? A. Yes, sir; it missed my back about something like 18 or 20 inches, 1 should judge.

"Q. And struck what part of your car? A. Tore the entire rear end out; struck about right at the hub of the right hind wheel and just tore the entire rear end out, top and all.

"Q. Then, if you had been able to move some 2 or 4 feet farther, you would have cleared the track? A. Yes; I think 2 feet would have cleared me possibly."

On cross-examination plaintiff was asked as to his testimony on a former trial of the case at Fayette, defendant's counsel reading certain questions and answers thereto by plaintiff from plaintiff's abstract of the record on the first appeal:

"Mr. Miller: * * * I will go back here and get the connection, at the bottom of page 247 (reading)—I will ask you if over at Fayette you didn't testify—I will ask you if these questions were asked you and these answers given at that time, taking depositions: `Did you observe the approach of this train;' and the answer, `No, sir.' `Didn't see it at all?' and the answer, `No, sir' `Never did see it?' and the answer, `No, sir.' Did you answer those questions that way, Doctor? A. I don't remember.

"Q. Over at Fayette.

"Mr. Cullen: We object to that. * * *

"The Court: As the court understands the examination now, the question is predicated upon the abstract of record that went to the Supreme Court in this case.

"Mr. Miller: Yes, sir.

"The Court: And appertaining to testimony given in another trial of this case? * * *

"Mr. Cullen: Now, another reason. He has never asked him about the train. He has asked him about remembering where be was going, and then he switches.

"The Court: It is disconnected from his last examination, that is true. Now, what statement do you contend that this witness has made that is contradictory to the statement there?

"Mr. Miller: He testified that he drove up there to the track, and, as I understand, he looked down the track, and he saw the train 100 or 150 feet east of the crossing. Now, I propose to show that he testified over at Fayette that he never Ed see the train until it struck him.

"The Court: Objection an `to this particular question overruled.

"Mr. Miller: Q. Didn't you answer that question that way over at Fayette? A. 1 don't remember of answering it that way.

"Q. Is that the best answer you can make to the jury; you don't remember of answering it that way? A. I don't remember of answering that question that way. I absolutely saw the train before it struck me, 100 or 150 feet away.

"Q. Don't you know that after you dismissed the case over there and brought it back here you proceeded upon a different theory? A. I don't know that

"Q. And then in when, for the first time, you said that you saw the train 100 to 150 feet before it got to the crossing? A. I did see it 100 or 150 feet away before it struck me, there is no question about it. * * *

"Q. Reading further —

"Mr. Cullen: What page in that?

"Mr. Miller: 248. Q. I will go further: `Did you testify now that you heard no bell at that time?' and the answer, `Yes, sir; No bell.' `Now, did you observe the approach of this train?' and the answer, `No, sir.' `Is that correct?' And you gave the answer, don't remember.' A. I don't remember how testified at Fayette, Mr. Miller. Whatever testified was the best of my recollection."

When defendants were offering testimony, the following occurred:

"Mr. Miller: I want to read from Dr. Monroe's testimony over at Fayette, record—

"Mr. Cullen: Wait a minute. " We object to that statement. You will not read from Dr. Monroe's testimony at Fayette.

"The Court: Do you mean at the trial here?

"Mr. Miller: Yes, sir; as to his interrogation as to what he testified over at Fayette.

"The Court: Proceed.

"Mr. Miller: I will ask you if over at Fayette you didn't testify—I will ask you if these questions were asked you and these answers given at that time (page 247): `Did you observe the approach of this train?' and the answer, `No, sir.' `Didn't see it at all?' and the answer, `No, sir.' Did you answer those questions that way? A. I don't remember.

"Would you say that you did not? A. I wouldn't say did or I wouldn't say I did not. It has been so long.

"If you did answer it that way, it is correct? A. I don't think I answered it that way.

"Well, your attorneys have a copy of the transcript there? A. I may have answered it that way and I may not I don't remember.

"I will go on further: `Did you testify now that you heard no bell at that time?' and the answer, `Yes, sir; no bell.' `Now did you observe the approach of this train?' and the answer, `No, sir.' In that correct? A. don't remember.

"What? A. I don't remember."

I. Appellants complain of improper remarks by plaintiff's counsel in his closing argument to the jury. The record reads:

"Mr. Cullen: I am talking about a situation that results necessarily from rapid running without giving notice. You know it. You know it is true, as certain as daylight. You see that street over there. That is but a public street. Men come and go. Now, you start an automobile down that street, I don't rare whether it is giving signals or not, but you start an automobile down that street going at the rate of over 60 miles an hour, and what do you expect and what would those who are on the side expect? Why, you would say at once that is dangerous to life and limb, woudn't you? Everybody would say that. We all know it. Human experience shows it. And as a result of that...