Mullis v. Thompson

• Decision Date: 13 September 1948
• Docket Number: 40513
• Parties: W. H. Mullis, Respondent, v. Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

213 S.W.2d 941

358 Mo. 230

W. H. Mullis, Respondent, v. Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a Corporation, Appellant

No. 40513

Supreme Court of Missouri

September 13, 1948

Rehearing Denied October 11, 1948.

Appeal from Johnson Circuit Court; Hon. James R. Garrison Judge.

Affirmed.

Thomas J. Cole, Ludwick Graves, and Jacob Brown for appellant.

(1) Plaintiff was guilty of contributory negligence as a matter of law and by reason thereof defendant's motion for directed verdict at the close of all the evidence should have been granted. Poague v. Kurn, 140 S.W.2d 13, 346 Mo 153; Dowler v. Kurn, 119 S.W.2d 852; Chawkley v. Wabash Ry. Co., 297 S.W. 20, 317 Mo. 782; Evans v. Illinois Central Ry. Co., 233 S.W. 397, 289 Mo. 493; Scott v. Kurn, 126 S.W.2d 185, 243 Mo. 1210; Alexander v. St. L.-S. F. Ry. Co., 38 S.W.2d 1023, 327 Mo. 1012; Rischeck v. Lowden, 147 S.W.2d 650, 347 Mo. 426; Stevens v. Thompson, 175 S.W.2d 166; Aldridge v. Mo. Pac., Ry. Co., 256 S.W. 93, 215 Mo.App. 217; State ex rel. Hines v. Bland, 237 S.W. 1018. (2) Courts will take judicial notice of the distance in which cars may be stopped under given circumstances. Goggin v. Schoening, 199 S.W.2d 87; Zickefoose v. Thompson, 148 S.W.2d 784; Crane v. Sirkin & Needles Moving Co., 85 S.W.2d 911; State ex rel. Sirkin, v. Hostetter, 101 S.W.2d 50; Chawkley v. Wabash Ry., supra; Spoeneman v. Uhri, 60 S.W.2d 9; Dowler v. Kurn, supra; Jeffries v. Powell, 20 S.E.2d 561; Virginia Ry. Co. v. Haley, 157 S.E. 776; Virginia Ry. Co. v. Greene, 169 S.E. 570; DeTemple v. Schaefer Bros., 13 P.2d 446. (3) The trial court erred in giving plaintiff's Instruction 2 which related solely to negligence in violating a speed ordinance of Warrensburg, and directed a verdict for plaintiff upon the findings made thereunder. There was no evidence to justify a finding that the alleged violation of the speed ordinance was the proximate cause of plaintiff's injuries. There was no testimony of probative value warranting submission of the alleged violation of the speed ordinance. The instruction is confusing and misleading. Rose v. Thompson, 141 S.W.2d 824, 346 Mo. 395; Hoelzel v. Chicago, R.I. & P. Ry. Co., 85 S.W.2d 126, 337 Mo. 61; Alexander v. Hoenshell, 66 S.W.2d 164; Huger v. Doerr, 170 S.W.2d 689. (4) The trial court erred in giving plaintiff's Instruction 1, in that said instruction places an undue burden on defendant and is misleading and confusing. The instruction imposes a duty on the railroad to both ring the bell and sound the whistle for the crossing. Moyer v. Chicago & A.R. Co., 198 S.W. 839; Wolfe v. Hines, 224 S.W. 143; McGraw v. Montgomery, 185 S.W.2d 309.

Gayles R. Pine and Ike Skelton for respondent.

(1) Plaintiff was not guilty of contributory negligence, as a matter of law, and defendant's motion for a directed verdict at the close of all the evidence was properly refused. If there is any substantial evidence in the record to sustain the prevailing party's theory, then the finding of the jury is conclusive. This court will not weigh the evidence. Blanton v. Dold, 18 S.W. 1149, 109 Mo. 64; Carter v. Casey, 153 S.W.2d 744. (2) In reviewing a ruling on a motion for a directed verdict the appellate court must consider testimony in the light most favorable to plaintiff, and will draw all reasonable inferences which might be drawn therefrom in favor of plaintiff. Pevesdorf v. Union Electric L. & P. Co., 64 S.W.2d 939, 333 Mo. 1155; Baries v. St. Louis Independent Packing Co., 46 S.W.2d 952; Dull v. Johnson, 106 S.W.2d 504; Roshel v. Litchfield & M. Ry. Co., 112 S.W.2d 876; Fitzpatrick v. K.C. So. Ry. Co., 146 S.W.2d 560, 347 Mo. 57. (3) Plaintiff had a right to rely upon the flasher light signals installed at the Holden Street crossing, Warrensburg, Missouri, and the failure of said flasher light signals to flash a warning of danger was an assurance from defendant to plaintiff that no immediate danger was to be apprehended, and that plaintiff could proceed across defendant's tracks with safety. Sisk v. Chicago, B. & Q. Ry. Co., 67 S.W.2d 830; Holman v. Terminal Ry. Assn. of St. Louis, 125 S.W.2d 527; Rineberger v. Thompson, 202 S.W.2d 64; Gorman v. Ry. Co., 28 S.W.2d 1023, 325 Mo. 326; Perkins v. K.C.S. Ry. Co., 49 S.W.2d 103, 329 Mo. 1190. (4) When plaintiff changed gears, and observed the invitation to proceed given to him by defendant's flasher light signals not flashing a warning of danger, and looked to the east and to the west up and down defendant's tracks, and did not see or hear a train coming, there not being a whistle blown or a bell rung, he was entitled to rely upon the impression of safety suggested by the facts and circumstances then and there existing, and it would not be reasonable to require him to look further, or to stop before crossing defendant's tracks. Nicholas v. Chicago, B. & Q. Ry. Co., 188 S.W.2d 511; Perkins v. K.C. So. Ry. Co., supra; Rucker v. Alton R. Co., 343 Mo. 929, 123 S.W.2d 24; Monroe v. Chicago & A.R. Co., 280 Mo. 483, 219 S.W. 68; Masterson v. Chicago, R.I. & Pac. Ry. Co., 58 Mo.App. 572. (5) The question of contributory negligence is for the jury when it arises upon a state of facts from which reasonable men might draw different conclusions either as to the facts or the conclusions or inferences to be drawn from the facts. Nicholas v. C.B. & Q.R. Co., supra; Weber v. K.C. Cable R. Co., 100 Mo. 194, 12 S.W. 804; 7 L.R.A. 819, 18 Am. St. Rep. 514; 38 Am. Jur., p. 1052, sec. 348. (6) The trial court properly gave plaintiff's Instruction 2 relating to defendant's negligence in violating a speed ordinance of the City of Warrensburg, Missouri. The excessive speed of defendant's train was a proximate cause of plaintiff's injuries in that if the train had not been operated at such a high rate of speed, and had been operated within the lawful limits of the ordinance, plaintiff would have cleared the tracks without being struck. Hoelzel v. Chicago, R.I. & P.R. Co., 85 S.W.2d 126, 337 Mo. 61. (7) The record is replete with substantial evidence that the train was being operated at a rate of speed of 50 to 55 miles per hour, and the finding of the jury on this point is conclusive on defendant. Coghlan v. Trumbo, 179 S.W.2d 705; Thomasson v. Hunt, 185 S.W. 165. (8) The instruction is clear and not misleading. Hoelzel v. Chicago, R.I. & P.R. Co., supra. (9) Instruction 1, given at the request of the plaintiff, does not place an undue burden on defendant, and is clear and not misleading. The instruction requires a finding that neither bell nor whistle was sounded before the jury could find for the plaintiff on this issue. McGraw v. Montgomery, 185 S.W.2d 309; Gayle v. Thompson, 167 S.W.2d 954. (10) The form of the instruction has been approved by the courts. Moyer v. Chicago & A.R. Co., 198 S.W. 839; McGraw v. Montgomery, supra; Gayle v. Thompson, supra; Witte v. Smith, 162 S.W.2d 604; Sisk v. C., B. & Q. Ry. Co., 67 S.W.2d 830; Speakman v. Kurn, 115 S.W.2d 185.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action for injuries to person and to property. A jury returned a verdict awarding damages in the aggregate sum of $ 18,800. Defendant has appealed from the ensuing judgment.

Defendant's train, an engine and five coaches, coming from the west, struck plaintiff's 1936 Chevrolet 1 1/2-ton truck at the Holden Street crossing at Warrensburg.

Plaintiff had pleaded primary negligence and negligence under the humanitarian rule but his case was submitted to the jury only on issues of primary negligence, (1) in failing to sound a whistle or ring a bell, warning of the train's approach; and (2) in moving the train at a speed in violation of a city ordinance. Defendant had tendered the general issue and pleaded, and the trial court submitted contributory negligence of plaintiff in failing to stop, look and listen; in failing to stop his truck after he saw or should have seen the approaching train and while he was yet in a place of safety; in failing to keep the truck under control; in failing to listen where to listen was to hear, and to heed the sound and signals of the approaching train; and in failing to heed "flasher" warning signals at the crossing.

It is contended by defendant-appellant that plaintiff was contributorily negligent as a matter of law; and that Instruction No. 2, given at plaintiff's instance, submitting the issue of speed in excess of that limited by ordinance, and Instruction No. 1, submitting the issue of negligence in failing to sound a warning, were erroneous.

At about 7:00 o'clock in the clear, dry morning of March 7, 1946, plaintiff (respondent herein), a contractor, 63 years old, driving his truck northwardly on Holden Street in Warrensburg, approached defendant's tracks which cross Holden Street at right angles and lie in an east-west direction.

Defendant's main line is straight for several hundred feet east and west of the crossing. In crossing the tracks from the south at the Holden Street crossing, the traveler on the street passes over defendant's five tracks in the following order -- the stock track, the house track, the main track or line, the main passing or siding track, and the north siding track. It is 78 1/2 feet from the south rail of the stock track to the south rail of the main line. Holden Street, where it passes east of the depot, is 46 feet wide; and the west curb of the street is 24 feet from the east end of the depot. The depot is 26 feet wide (north and south). It is 17 feet 8 inches from the front of the depot to the south rail of the main line. A "bay window" extends three or four feet to the northward from the main structure of the depot. The east side of the bay window is about eighteen feet west of the east end of the building.

A city ordinance, in full...