Parker v. St. Louis-San Francisco Ry. Co.

• Decision Date: 28 July 1931
• Docket Number: 28979
• Citation: 41 S.W.2d 386
• Parties: PARKER v. ST. LOUIS-SAN FRANCISCO RY. CO
• Court: Missouri Supreme Court

41 S.W.2d 386

PARKER v. ST. LOUIS-SAN FRANCISCO RY. CO

No. 28979

Supreme Court of Missouri, First Division

July 28, 1931

E. T Miller, of St. Louis, and Mann & Mann, of Springfield, for appellant.

Norman & Norman, of Joplin, for respondent.

OPINION

GANTT P. J.

This came to me on reassignment. Action to recover $ 15,000 for personal injuries sustained when an automobile driven by plaintiff collided with defendant's train at a public crossing in Jasper county. The trial resulted in a verdict for defendant. On motion of plaintiff a new trial was granted; the court ruling there was error in instructions Nos. 5 and 7 given at the request of defendant. From the order granting a new trial, defendant appealed.

It is charged that defendant maintained the crossing in a defective condition, and that, as a direct result of such negligence the automobile, in moving on said crossing, was caught in a hole therein and held thereon, resulting in the collision and plaintiff's injuries. The answer was a general denial, with a plea that plaintiff was guilty of contributory negligence, in that, after the automobile stopped on the track, he saw or heard, or could have seen or heard, the train in time to have reached a place of safety before the collision, and that he negligently failed to do so. The reply was a general denial.

There was evidence tending to show the following: The plaintiff approached the crossing from the east, and, when the front wheels of the automobile moved over the east rail of the track, the right front wheel dropped into a hole between the rails, thereby killing the engine and stopping the car on the track. The 'sudden jolt' of the movement momentarily stunned plaintiff and caused him to lose control of the steering wheel. When he discovered that the automobile would not move, he attempted to open the only door which was toward the approaching train. The automobile was twisted, and he was unable to do so. He then attempted to escape through a window on the other side, and, while doing so, the collision occurred.

The fireman testified for the defendant as follows: 'When I first saw the automobile, the front wheels were just inside of the north rail of the track. That would be the rail on the left side of the engine. It was standing still. There were no lights of any kind on the automobile. I saw a man in front of the car, but I couldn't identify him. He was in front of this car standing between the rails attempting to push the car back off the track. He tried to push the car off and then he turned towards the west facing our engine and gave us the stop signal with his hand; something like that. Then he mounted the west running board of his car. It looked to me like he looked into the body of the car, I presumed at the time he was looking at the brakes or something, I couldn't tell what. Then he got off the running board and got between the rails and attempted to push the car back again. We were getting dangerously close then, and he stepped to the west side of his car, off the track, just north of the north rail, and on the west side of his car, and was standing there when we struck the car. That put him on the side of the automobile nearest the train -- between the train and the automobile and on my side or the left hand side of the track. He was on the north side of the railroad track. When we struck the automobile he was standing in the clear of the train. He was struck by his own automobile. The engine struck the front wheels of the automobile. They were thrown directly around to the east, and the rear of the automobile swung practically to the west, making a twisting motion when we struck it. The rear of the automobile was what struck the man. I was sitting directly above where the impact came when we struck it. The automobile was thrown in a little depression along the east side of the highway adjoining to the railroad track.'

On this evidence, and at the request of defendant, the court gave instruction No. 5, which follows: 'The court instructs the jury that if you find and believe from the evidence that after plaintiff's automobile was stalled on the track, plaintiff got out of the automobile and reached a place of safety outside the rails of the track and later and after he saw, or by the exercise of ordinary care, could have seen the train approaching, that he stood so near the track as to be injured by the train, then your verdict must be for defendant.'

In ruling the motion for a new trial, the court held this instruction erroneous. In the order granting a new trial it did not indicate the error or errors found therein.

I. However, plaintiff contends there was no evidence authorizing the instruction. He argues that it would have been impossible to have made the movements that the fireman testified he saw him make while the train was traveling six hundred feet at fifty miles an hour. He also argues that, if he had been struck by the automobile in the manner stated, he would have been thrown under or against the train instead of from the train. In other words, he argues that the testimony of the fireman was contrary to the physical facts. We do not so regard the evidence. We think that plaintiff could easily have made said movements while the train was traveling said distance, and we cannot hold as a matter of law...