Monroe v. Chicago A. R. Co.

• Decision Date: 20 December 1919
• Docket Number: No. 19810.,19810.
• Citation: 219 S.W. 68,280 Mo. 483
• Parties: MONROE v. CHICAGO A. R. CO. et al.
• Court: Missouri Supreme Court

219 S.W. 68

280 Mo. 483

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

No. 19810.

Supreme Court of Missouri, Division No. I.

December 20, 1919.

Rehearing Denied March 2, 1920.

Appeal from Circuit Court, Audrain County; J. D. Barnett, Judge.

Action by T. M. Monroe against the Chicago & Alton Railroad Company and others. From an adverse judgment, plaintiff appeals. Reversed and remanded.

Fauntleroy, Cullen & Hay, of St. Louis, for appellant.

A. C. Whitson, of Mexico, and Charles M. Miller, of Kansas City, for respondents.

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 (App.) 201 S. W. 593; Pippert v. Cook et al. (App.) 203 S. W. 236.

II. A village ordinance restricted the speed of trains to 8 miles per hour. There is evidence the train in question was running at the rate of 45 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 (section 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. R. R., 214 Mo. loc. cit. 544, 545, 114 S. W. 33, 37. It throws upon defendant the burden of proving the violation of the statute did not cause the injury. Green v. Ry., 192 Mo. loc. cit. 143, 90 S. W. 805. 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. R. R., 203 Mo. 475, 101 S. W. 1082; Kerr v. Bush, 198 Mo. App. loc. cit. 611 et seq., 200 S. W. 672. 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, 267 Mo. 398, 184 S. W. 1144; Oates v. Ry., 168 Mo. 548, 68 S. W. 906, 58 L. R. A. 447.

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 6 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 correctible 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. R. R., 214 Mo. loc. cit. 545, 114 S. W. 37, supra; 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 sometime; 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 judge of it." Campbell v. R. R., 175 Mo. 161, 75 S. W. 85; Step: v. Ry. (App.) 211 S. W. 730. The case last cited applies this rule to automobiles and cites other like cases. In Jackson v. R. R., 189 8. W. 381, the rule was applied by this court to a motorcycle.

In this case there was evidence tending to show that the train was running through Laddonia at a speed of 45 miles or more per hour, in violation of a valid ordinance (section 9436, R. S. 1909; Robertson v. Ry., 84 Mo. 119) limiting the speed of trains in that village to 8 miles per hour; that no signal by either bell or whistle was given; than an automatic gong at the crossing, where the injury occurred, was not ringing; that plaintiff approached the crossing at a speed of 4 miles per four; that he listened and heard nothing; that he looked west and saw no train; looked east as soon as he could after approaching near enough to the track foe him to be able to see Beyond cars upon a siding or spur track, and saw nothing; that he could see from this point over 140 feet of the track and could have seen the train, had it been there, at some greater distance; that at this time the front wheels of his automobile were about 20 feet from the track; that had the train beer running at or near ordinance speed his automobile, moving 4 miles per hour, would have cleared the track before the train could have reached the crossing; that he then sack nothing to indicate the approach of a train and listened but heard no signals or train noises; that no transient noises interfered with his hearing the train; that, when plaintiff reached a point where he could see 320 or more feet down the track, he could have stopped his automobile in time; that he was looking alternately east and west; that seeing no train within a distance of over 300 feet, and hearing no warning noise, he then committed himself to the crossing; that the train would not have struck him had it not been running far in excess of ordinance speed; that he almost crossed safely, the rear of the automobile being struck by the engine.

(a) There is no doubt that under the rule applied to horse-drawn vehicles these facts would have made the question of contributory negligence one for the jury. The courts of Pennsylvania hold that a failure of the driver of an automobile to stop before crossing a railroad track bars an action for injuries he may receive. In that state, however, the same rule is applied to all vehicles and was so applied before automobiles came into use. The argument upon...