Pentecost v. St. Louis Merchants' Bridge Terminal R. Co.

• Decision Date: 22 December 1933
• Citation: 66 S.W.2d 533,334 Mo. 572
• Parties: Ernest Pentecost v. St. Louis Merchants Bridge Terminal Railroad Company, a Corporation, St. Louis Terminal Railway Company, a Corporation, and Wabash Railroad Company, a Corporation, Appellants
• Court: Missouri Supreme Court

66 S.W.2d 533

334 Mo. 572

Ernest Pentecost v. St. Louis Merchants Bridge Terminal Railroad Company, a Corporation, St. Louis Terminal Railway Company, a Corporation, and Wabash Railroad Company, a Corporation, Appellants

Supreme Court of Missouri

December 22, 1933

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Reversed and remanded.

Homer Hall and Woodward & Evans for Wabash Railroad Company; T. M Pierce, J. L. Howell and Walter N. Davis for St. Louis Merchants Bridge Terminal Railway Company and St. Louis Terminal Railway Company.

(1) The plaintiff went to the jury, by Instruction 1, on the high excessive, dangerous and unreasonable speed of the train. That was not the proximate cause of the accident. Battles v. Rys. Co., 178 Mo.App. 620, 161 S.W. 614; McGee v. Railroad, 214 Mo. 543, 114 S.W. 33. (a) Instruction 1 permitted the jury to find any speed, whether or not a lawful speed, was excessive and dangerous. It permitted the jury to speculate and to say that a lawful speed was dangerous, giving them a roving commission to so find. Birdsong v. Jones, 225 Mo.App. 242, 30 S.W.2d 1094. (2) Instruction 2, given on behalf of plaintiff, purporting to hypothesize a case upon the humanitarian theory and authorizing a verdict on that doctrine if the engineer negligently failed to sound a warning, is erroneous, for the reason that the evidence was not sufficient to warrant recovery upon such theory. Guyer v. Mo. Pac. Ry. Co., 174 Mo. 344, 73 S.W. 584; Roenfeldt v. Sub. Ry. Co., 180 Mo. 554, 79 S.W. 706; Markowitz v. Met. St. Ry. Co., 186 Mo. 350, 85 S.W. 351; Degonia v. Ry. Co., 224 Mo. 564, 123 S.W. 807; McGee v. Railroad Co., 214 Mo. 530, 114 S.W. 33; Burge v. Railroad Co., 244 Mo. 76, 148 S.W. 925; Rollison v. Railroad Co., 252 Mo. 525, 160 S.W. 994; Sullivan v. Railroad Co., 308 Mo. 48, 271 S.W. 983; State ex rel. Wabash Ry. Co. v. Bland, 313 Mo. 246, 281 S.W. 690; Kirkdoffer v. Ry. Co., 327 Mo. 166, 37 S.W.2d 569. There is further error in the instruction in that it does not clearly and definitely require the jury to find that plaintiff was in a position of imminent peril. Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Stewart v. Mo. Pac. Ry. Co., 308 Mo. 383, 272 S.W. 694. The element of warning under the humanitarian doctrine had no place in the case. Plaintiff testified that he looked constantly toward the north and must have seen the approaching train as soon as the engineer could have seen the automobile. At this time a signal would not aid him in extricating himself and could not notify him of that which he actually saw. (3) Instruction 3 was erroneous, because it assumed that plaintiff, as the train approached, was in a position of peril. Gleason v. Texas Co., 46 S.W.2d 546; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559. (a) It assumed that defendant, on the occasion in question, failed to give the usual and seasonable signals of approach, and assumed that defendants' servant was not attentive and vigilant. However, if the instruction is ambiguous and uncertain, it is misleading and erroneous. State v. Creed, 299 Mo. 318, 252 S.W. 678; Gleason v. Texas Co., 46 S.W.2d 546; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559. (4) The verdict and judgment is still excessive. Nelson v. Heine Boiler Co., 20 S.W.2d 906.

Vance Newman and Stout & Spencer for respondent.

(1) The question of excessive speed was, under the circumstances, for the jury to determine, and the instruction submitting the issue was proper in form. Herrell v. Ry. Co., 18 S.W.2d 481; Ward v. Ry. Co., 311 Mo. 92, 277 S.W. 910; Toeneboehn v. Railway Co., 298 S.W. 795, 317 Mo. 1096; Hall v. Ry. Co., 240 S.W. 175; Turney v. Ry. Co., 155 Mo.App. 513, 135 S.W. 96. (2) The court properly submitted the case to the jury on the humanitarian doctrine of failure to warn. Herrell v. Railway, 18 S.W.2d 481; Gould v. Railroad, 315 Mo. 713, 290 S.W. 138; Zumwalt v. Railroad, 266 S.W. 717; Rummels v. Railroad, 15 S.W.2d 366; Logan v. Railroad, 300 Mo. 611, 254 S.W. 705; Chawkley v. Railroad, 297 S.W. 20, 317 Mo. 782; Allen v. Railway, 313 Mo. 42, 281 S.W. 742; McGinnis v. Railroad, 268 Mo. 667, 187 S.W. 1168; Chapman v. Railway, 217 Mo.App. 312, 269 S.W. 688. (a) The instruction submitting the case on the humanitarian doctrine is in proper form. Herrell v. Railway, 18 S.W.2d 481. (3) Instruction 3, given for plaintiff, is in proper form. Herrell v. Railway, 18 S.W. 481, 484. (4) The verdict is not excessive. Mount v. Western Coal Co., 294 Mo. 603, 242 S.W. 943; Northern v. Chesapeake, 320 Mo. 1011, 8 S.W.2d 982; Clark v. Railroad, 318 Mo. 453, 300 S.W. 758; Lewis v. Packing Co., 3 S.W.2d 244; Burton v. Brennan, 13 S.W.2d 569; Messing v. Judge & Dolph, 322 Mo. 901, 18 S.W.2d 420; Stein v. Rainey, 315 Mo. 535, 286 S.W. 58.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries. Plaintiff's automobile was struck by a train of the defendant Wabash Railroad Company while it was being operated over the tracks of the defendant, the two terminal companies. Plaintiff had a verdict for $ 20,000, which was reduced by remittitur to $ 10,000, and from judgment entered against defendants for $ 10,000, they have appealed.

Two charges of primary negligence were submitted to the jury, excessive speed and failure to give warning signals. The further charge of negligence under the humanitarian doctrine was also submitted. The accident occurred at Carrie Avenue crossing, an east and west street, in the city of St. Louis. The railway tracks ran north and south at this crossing. On the north side of Carrie Avenue and the west side of the railway tracks, there was a foundry building fronting about 250 feet on Carrie Avenue and about 150 feet along the railroad tracks. The first track across the street on the west was a switch track, which ran into the southeast corner of the foundry. The next track was the west main line track. North of the switch track, between the foundry and the west main line track was a shed about twelve feet high. Its length was not stated. The foundry itself came within thirty feet of the west main line track, but the east side of this shed was only eight or nine feet from it. The main line tracks, north of the Carrie Avenue crossing, curved sharply to the west, and ran behind the shed and foundry. The pictures in the record show that these tracks began to curve almost immediately north of the crossing. North of this curve there were railroad yards, which could be seen from the crossing.

Plaintiff's evidence was that he was driving east on Carrie Avenue about ten o'clock at night, February 4, 1928; that there was a misty rain falling; that he stopped about fourteen feet west of the tracks, at which point he could not see over the shed to the north; that he looked both ways, and listened, and that he saw only an engine standing in the yards some distance to the north of the mainline tracks, with its headlight pointed south, lighting the yards and tracks north and east of the crossing. Plaintiff was in a "Model T" Ford touring car, the driver's seat of which was on the left (north) side. He had no curtain on that side. Plaintiff testified that he started up, keeping watch to the north all the time, traveling about four or five miles per hour; and that when his car got about two feet from the west main line track (the overhang of a train was two feet), while still continuing to look to the north, "a flash of light come on me and I went to stop and kept to watching and I seen the train, and I swung the wheel, and swung with the right with the train and that is the last I remember." When he saw the light of the engine it was from thirty-five to forty-five feet away. Plaintiff said that he stopped his car with the front wheels between the rails of this track and that it was at the same time struck by the train approaching from the north. One of plaintiff's witnesses said that his car "climbed up sideways up on the cow catcher." Plaintiff had other evidence to show that the train was traveling from twenty-five to thirty-five miles per hour and that no signals, by either whistle or bell, were sounded.

The engineer of the train testified that the train was traveling about seven or eight miles per hour around the curve; that Carrie Avenue could not be seen coming around the curve "until you get to about 100 feet of it;" and that when he first saw plaintiff's automobile it was standing still about four or five feet from the track. He estimated that the engine was about 100 feet from it when he saw it. He said that the automatic bell ringer was on, ringing the bell all the way from Delmar Avenue; that he also blew a number of short whistles when he saw plaintiff's car; that the automobile remained standing still until after the engine passed it; that it suddenly started up and struck the third car of the train; and that he immediately made an emergency stop, stopping within one car length, or seventy feet, with the engine about 250 feet south of the crossing. He further testified that he looked back at the automobile as he passed it but saw no one in it; that as he went back to it, after stopping the train, he saw three men leaving it; and that he found the radiator "stone cold." Other members of the train crew corroborated the engineer's testimony that the whistle was blown and that the bell was ringing.

Defendants assign as error the instructions given at request of plaintiff upon the issues of primary negligence and contributory negligence, the instruction submitting the case upon the humanitarian doctrine, and that the verdict is excessive, even after remittitur.

We think that defendants' contention that the evidence did not warrant submission of negligence under the...