Moore v. Davis
| Decision Date | 02 May 1922 |
| Parties | THADEUS B. MOORE, Respondent, v. JAMES C. DAVIS, DIRECTOR GENERAL OF RAILROADS, Agent designated under the transportation act of 1920 in cause of action arising during Federal control of St. Louis Merchants Bridge Terminal Railway, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Ferriss, Judge.
AFFIRMED.
Judgment affirmed.
J. L Howell and W. M. Hezel for appellant.
(1) The court erred in failing to give defendant's requested instruction in the nature of a demurrer to the evidence at the close of plaintiff's case in chief. (a) Plaintiff was guilty of contributory negligence as a matter of law under his own testimony even if the crossing gate was up, because (1) Plaintiff did not rely upon any assurance of safety from the open gates nor construe such condition as an invitation to cross. Voelker Products Co. v. United Rys. Co., 185 Mo.App. 310; Paul v. United Rys. Co., 152 Mo.App. 577. (2) It appears by the testimony of plaintiff that engine bells were ringing, and his own failure to hear them was due, according to his own statement, to the noise made by his own truck over the crossing planks. (3) Not being able to hear warning signals, and his view being obstructed, as plaintiff states, it was plaintiff's duty to so have his auto truck under control as to have enabled him to stop it and prevent a collision when he could see or stop it so he could hear. Underwood v. Railroad, 182 Mo.App. 252; Kelly v. Railroad, 88 Mo. 534; Campbell v. Railroad, 175 Mo. 161; Elliott v. Railroad, 105 Mo.App. 523; (4) The rule of law, therefore, laid down in the following cases convicts plaintiff of contributory negligence as a matter of law. Keele v. Railroad, 258 Mo. 62; Laun v. Railroad, 216 Mo. 563; Schmidt v. Railway, 191 Mo. 215; Stotler v. Railway, 204 Mo. 619; Keeley v. Railway, 258 Mo. 62; Burnett v. Railway, 172 Mo.App. 51; Lundergan v. Railroad, 203 Mass. 460; Koch v. So. Cal. Ry. Co., 148 Cal. 677; Pennsylvania R. Co. v. Pfuelb, 60 N.J. L. 278. (2) Nothing in defendant's evidence aided plaintiff's case, for that evidence proved affirmatively: (1) That the gate could not be closed, due to the fact that Volz's truck was under the gate. (2) That the gateman sounded his gong. (3) That a switchman on crossing gave signals to vehicles to stop. (4) That the bell of the particular engine involved in the collision was ringing prior to, up to, and even after, the collision. The instruction in the nature of a demurrer to the evidence requested by the defendant at the close of the whole case should, therefore, have been given. (3) Court erred in giving plaintiff's requested instruction No. 1. Because it hypothesizes a condition the plaintiff could not see or hear an engine approaching by reason of obstructions, yet permits a recovery if the jury found that plaintiff looked and listened for an approaching engine, though looking and listening were unavailing under the predicated situation. Authorities under point 1. (4) The court erred in giving plaintiff's requested instruction No. --: (1) Because it advised the jury that the gates, if found by them to be up at the time plaintiff passed through them and onto the tracks, was an invitation on the part of the defendant to the plaintiff to cross over the railroad tracks at that particular time, though the plaintiff's own testimony shows that he placed no reliance on such invitation. (2) Because it failed to submit to the jury the theory of the defendant that the gates were not down because of the presence of another truck stopped under the gates, a condition which, if existing, could not be construed to create one of invitation. (3) Because it did not require the plaintiff to have looked or listened under conditions when to look or listen would have been effective. Authorities under point 1. (5) The court erred in giving plaintiff's requested instruction No. 3 (Abs., p. 55), because it is not limited to reasonable compensation for any permanent injury resulting directly from the accident, and is vague and indefinite and contrary to defendant's instruction No. 6. (6) Because the verdict is excessive.
Thomas B. Crews and Walter Naylor Davis for respondent.
(1) In every instance, unless the fact be admitted, the matter of the credibility of the witnesses and the weight and value to be given to their testimony concerning the matter of which they speak, is for the jury to determine, and this is true though such evidence be not contradicted by other witnesses. Wack v. Railroad, 175 Mo.App. 111; Gannon v. Laclede Gas Light Co., 145 Mo. 502. (2) (a) Though it be that one is required to look and listen before entering upon the tracks it would seem that besides being relieved of this obligation, in a measure, by the fact of the open gates operating as an invitation to enter and an assurance that no train was approaching, he should be regarded, after having found his way safely across the first track and into the second, as having exercised due care thereabout in the first instance. Such is the rule established by the St. Louis Court of Appeals and the Supreme Court. Yonkers v. Railroad, 182 Mo.App. 558; Wack v. Railroad, 175 Mo.App. 111; Cuccio v. Railroad Ass'n, 199 Mo.App. 365; Rollinson v. Lusk, 203 Mo.App. 31; Curlin v. St. Louis Mer. Br. Ter. Ry., 232 S.W. 215; Montgomery v. Railroad, 181 Mo. 477; McNamara v. Railroad, 126 Mo.App. 152; Edwards v. Railroad, 94 Mo.App. 36; Central Trust Co. v. Railroad, 27 F. 159. (b) Ordinary care does not require a traveler to constantly look and listen at all points of his approach to a railway crossing and while upon the track. Maloney v. United Railways, 183 Mo.App. 292; Strauchon v. Met. St. Ry., 232 Mo. 587. (c) The question of the contributory negligence of plaintiff was for the jury. Yonkers v. Railroad, 182 Mo.App. 558. (d) If plaintiff was placed in a position of peril by defendant's negligence, then plaintiff would not be guilty of contributory negligence as a matter of law in trying to escape, though he erred in a matter of judgment in attempting to do so. Frankel v. Hudson, 271 Mo. 495. (3) (a) Appellant's witness, Rex Thornton, yardmaster, testified that "he knew the gates were up, and knowing that he signaled the engineer to go ahead, and back across Bremen avenue." (b) Appellant's witness, John Irvin Girardi, fireman, testified that (4) Plaintiff's instruction No. 1 states the law and is applicable to the facts. Plaintiff looked and listened before going on the crossing, and continued to look and listen after getting on the crossing, the duty of ordinary care was modified by the security into which defendant by its negligence had lulled plaintiff. Authorities cited under 2. (5) Plaintiff's instruction 2 was correct and stated the law. (1) Plaintiff undoubtedly relied on the invitation to cross over. (2) It expressly required the jury to find that the gates were up, and not necessary to submit the question of another truck stopped under the gate. O'Keefe v. Railroad, 108 Mo.App. 177. (3) Plaintiff was only required to use ordinary care before entering upon the tracks as modified by his invitation to cross. (6) Plaintiff's instruction No. 3 was correct. It follows an approved instruction. Montgomery v. Railroad, 181 Mo. 477. (7) The verdict is not excessive.
Plaintiff sues Walker D. Hines, Director General of Railroads, in charge of and operating St. Louis Merchants Bridge Terminal Railway, for personal injuries and property damage arising out of a collision between the plaintiff's automobile truck and a locomotive engine operated by defendant at a public crossing in the city of St. Louis. By a stipulation in this court James C. Davis successor to Walker D. Hines as such director, entered his appearance herein and was substituted as defendant-appellant.
Bremen avenue, a public street running east and west, crosses Hall street, another public thoroughfare running north and south. On Hall street and crossing Bremen avenue were six railroad tracks operated by the defendant. Beginning with the east of these tracks they may be numbered for the purposes of the case as numbers one, two, three, four, five, and six. Track No. 6 or the west track was termed a "team track" and curved sharply to the west from the crossing. The defendant maintained a crossing gate on both sides of the tracks, which gates were operated by a watchman stationed in a tower to the east of the six tracks, from which tower the watchman had a view to the north and south along the tracks and also to the east and west along Bremen avenue. These gates, as was customary, were opened and closed on the approach of trains or engines. The tracks were of the usual standard guage, having a space of four feet, eight inches between the rails. There was a distance of seven or eight feet between each track.
Plaintiff charges that on August 15, 1918, he was driving his loaded automobile truck eastwardly on Bremen avenue; that as he approached near the intersection of Hall street, where said tracks and gates were maintained by defendant, and had approached to within one hundred feet of said gates, which were then lowered, the said gates were negligently and carelessly raised or opened by the defendant, and that the plaintiff following another automobile which had been waiting to pass eastwardly along said Bremen avenue over...
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