Perkins v. Kansas City Southern Ry. Co., 29380.

• Decision Date: 02 April 1932
• Docket Number: No. 29380.,29380.
• Citation: 49 S.W.2d 103
• Parties: ETTA PERKINS v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

49 S.W.2d 103

ETTA PERKINS v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.

No. 29380.

Supreme Court of Missouri, Division One.

April 2, 1932.

Appeal from Newton Circuit Court. — Hon. Charles L. Henson, Judge.

AFFIRMED.

Cyrus Crane, Hugh E. Martin and P.H. Graves for appellant.

(1) The verdict of the jury was for the right party. The railway company was not guilty of negligence in the operation of the train and the death of Russell Perkins was caused by his own carelessness and negligence. (a) Perkins was negligent in driving at the rate of speed of 25 or 30 miles per hour around the curve, up to and upon the track. 1927 Ann. Supp. Mo. Statutes, Sec. 7550-A 18, Laws 1921, 1st Ex. Sess. p. 91; Gude v. Weick Bros. Undertaking Co., 16 S.W. (2d) 60; Threadgill v. United Rys., 279 Mo. 466; Evans v. Ill. Cent. Railroad Co., 289 Mo. 493, 233 S.W. 397; State ex rel. Hines v. Bland, 237 S.W. 1019; Hall v. Railway, 240 S.W. 175; Dempsey v. City Light & Traction Co., 240 S.W. 1094; Nichols v. C. & A. Ry. Co., 250 S.W. 627; Wheeler v. Wall, 157 Mo. App. 38. (b) Perkins was negligent in driving at a speed that did not readily permit him to stop or in failing to stop or turn aside when he could have done so. Evans v. Ill. Cent. Ry. Co., supra; State ex rel. Hines v. Bland, 237 S.W. 1018; Hall v. Railway, 240 S.W. 175; Dempsey v. City Light & Traction Co., supra; Nichols v. C. & A. Ry. Co., supra. (c) Perkins was negligent in failing to hear the signals of warning given him by bell and whistle and by the shouts of the signalman on the crossing, or in failing to heed them, if they were heard by him. Burge v. Wabash, 244 Mo. 76; Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Lane v. Railroad, 132 Mo. 4; Evans v. Railroad, 289 Mo. 493; Freie v. Railroad, 241 S.W. 671; Blaine v. Ry. Co., 184 S.W. 1142; Burnett v. Railroad, 172 Mo. App. 51; Jacobs v. Santa Fe, 154 Pac. 1023; Toledo Term. Ry. Co. v. Hughes, 154 N.E. 915; Headley v. Denver & R.G. Ry. Co., 154 Pac. 731. (d) The failure of the crossing device did not excuse Perkins from exercising the statutory duty of the highest degree of care, and from looking and listening for a train and being prepared to meet one at the crossing. Threadgill v. United Rys., 279 Mo. 466; Gude v. Weick Bros. Undertaking Co., 16 S.W. (2d) 59; Blain v. Railroad Co., 184 S.W. 1142; Burnett v. Railroad, 172 Mo. App. 51; Jacobs v. Santa Fe, 154 Pac. 1023; Toledo Term. Ry. Co. v. Hughes, 154 N.E. 916; McSweeney v. Erie Railroad Co., 87 N.Y. App. Div. 836; Headley v. Denver & Rio Grande, 154 Pac. 731; Richardson v. Railroad, 223 Mo. 329; Hogan v. Railroad, 150 Mo. 36. (e) Perkins was negligent in failing to look attentively for a train and if he saw the train he was negligent in his conduct in driving upon the crossing thereafter. Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Burge v. Railroad, 244 Mo. 76; Freie v. Railroad, 241 S.W. 671; Tannehill v. Railroad, 279 Mo. 158. (f) Perkins was negligent in failing to see or heed the warning given him by signalman Eisenberg as Perkins approached the crossing. Alexander v. Railway, 289 Mo. 599, 233 S.W. 44; State ex rel. Hines v. Bland, 237 S.W. 1018; Monroe v. Railroad Co., 249 S.W. 644, 297 Mo. 633; Dickey v. Wabash, 251 S.W. 112; Nunn v. Railroad, 258 S.W. 20; Hutchinson v. Railroad, 195 Mo. 546; Winkler v. Railroad, 229 S.W. 229; Freie v. Railroad, 241 S.W. 671; State ex rel. Maclay v. Cox, 10 S.W. (2d) 940, 320 Mo. 1218; Evans v. Railroad, 289 Mo. 493, 233 S.W. 397; State ex rel. v. Bland, 313 Mo. 246; Hall v. Frisco Ry. Co., 240 S.W. 175; Sullivan v. Santa Fe, 317 Mo. 996. (g) There was no negligence proven upon the part of the defendant which warranted the submission on failure to warn by whistle or bell and on excessive speed of the train. McGee v. Railroad, 214 Mo. 530, l.c. 541; Turner v. K.C. St. J. & C.B. Co., 78 Mo. 578; Alexander v. Frisco Ry. Co., 289 Mo. 620; Kellny v. Railroad Co., 101 Mo. 67. (2) The verdict was manifestly for the right party and there was no material error, if any, in the giving of instructions 7, 9, 10, 12 and 15 and the case should not be returned for a retrial because of those instructions. (a) Even if the instructions were not free from criticism since the verdict is for the right party the verdict should not be set aside on their account. Petersen v. Transit Co., 199 Mo. 334; Carr v. Railroad Co., 195 Mo. 214; Black v. Emory, 218 Mo. App. 357; Morris v. Railroad, 79 Mo. 367; Sec. 1276, R.S. 1919; Walker v. Railroad, 193 Mo. 453; Pounds v. Coburn, 210 Mo. 115; Mowry v. Norman, 223 Mo. 463; Evans v. Railroad, 289 Mo. 502, 233 S.W. 399; Nichols v. Railroad, 250 S.W. 627; Dickey v. Wabash Co., 251 S.W. 112; Huggart v. Railroad Co., 134 Mo. 673; Sanguinette v. Railroad, 196 Mo. 466; Dey v. Rys., 140 Mo. App. 473; Dyrez v. Ry. Co., 238 Mo. 33. (b) The instructions as a whole presented the law fairly to the jury and under such circumstances some technical error does not justify the setting aside of a fair verdict. Pounds v. Colburn, 210 Mo. 115. (c) Both parties tried the case on the thoery that Perkins was under the duty to exercise the highest degree of care as he approached the crossing. The case was submitted by both parties on that theory and when both parties request the court to declare the law on the same theory neither can complain of such submission by the court. Mowry v. Norman, 223 Mo. 463; Walker v. Railroad, 193 Mo. 484. (d) The instructions complained of submit the law of Missouri as it has been settled for years. Evans v. Railroad Co., 289 Mo. 502; Nichols v. Railroad Co., 250 S.W. 627; Dickey v. Wabash Co., 251 S.W. 112. (e) The term "caused in any degree" as used in instructions 7, 9, 10 and 12 does not make those instructions erroneous and its use does not justify the retrial of the cause. Sec. 4217, R.S. 1919; Webb v. Strobach, 143 Mo. App. 466; Palmer v. Concord, 48 N.H. 211, 97 Am. Dec. 605; Stainer v. San Luis Valley Land & Mining Co., 166 Fed. 220; Carr v. St. Joseph, 225 S.W. 922; Richardson v. Railroad, 233 Mo. 339; Hogan v. Railroad, 150 Mo. 36.

Horace Ruark, E.B. Morgan and Leo H. Johnson for respondent.

(1) The statutory duty to ring the bell or sound the whistle is the minimum and not the maximum required by law. Where, as here, the crossing is a dangerous one, the railroad may be under a duty to give other signals than the statutory ones and liable for a failure so to do. Allen v. Railroad, 313 Mo. 42, 281 S.W. 737; Connole v. Ry. Co., 21 S.W. (2d) 907. (a) The defendant was also liable for running its locomotive at an excessive rate of speed over such a crossing. Ward v. Ry., 311 Mo. 92, 277 S.W. 908; Toeneboehn v. Frisco Ry. Co., 317 Mo. 1110, 298 S.W. 795; Montague v. Mo. & Kan. Interurban Ry. Co., 305 Mo. 269, 264 S.W. 813. (b) It takes a strong case to convict the dead of contributory negligence. McDaniel v. Railroad, 292 Mo. 421, 239 S.W. 471. (c) In determining whether one was guilty of contributory negligence, all of the surrounding facts and circumstances must be taken into consideration. 45 C.J. 953, sec. 511; Lincoln v. Railroad, 7 S.W. (2d) 460. (2) The failure of the automatic signal, to work, gave to deceased an assurance that the way was clear and no train approaching, and upon this he had a right to act. Bachman v. Railroad, 310 Mo. 70. The court saying, l.c. 70: "Where a railroad installs a signal bell, it might well be ruled that a traveler could rely upon the device which was installed for his safety." Montgomery v. Railroad, 181 Mo. 503, 79 S.W. 930; Stephen v. Railroad, 199 S.W. 273; Hatten v. Ry. Co., 233 S.W. 281; Nicholson v. Railroad, 297 S.W. 998; Genglebach v. Payne, 236 S.W. 1092; McNamara v. Railroad, 126 Mo. App. 152, 103 S.W. 1093; Wack v. Railroad, 175 Mo. App. 123, 157 S.W. 1070; Yonkers v. Railroad, 182 Mo. App. 558, 168 S.W. 307; Strotjost v. Railroad, 181 S.W. 1082; Moore v. Hines, 210 Mo. App. 191, 241 S.W. 457. The fact of the preceding automobile crossing without any apparent haste when the driver thereof was in a position to see also gave to the deceased an assurance of safety. (3) (a) An automobile driver is not to be held guilty of contributory negligence as a matter of law because he drove upon the track without stopping. Monroe v. C. & A. Railroad, 280 Mo. 483, 219 S.W. 68. (b) The deceased had a right and of necessity must have given some attention to getting over the rough places on the crossing. Doyle v. Railroad Co., 185 S.W. 1179. (c) He also had as much reason to expect a train from the northwest and look first for it as he did to expect one from the southeast. Doyle v. Railroad, supra. (d) And it was the duty of deceased to keep his eye upon the signal that was placed there to warn him. Edwards v. Ry. Co., 94 Mo. App. 36. (e) The waiving of arms by the man trying to warn him may have, under the circumstances, only tended to divert his attention at a critical time. McDaniel v. Railroad, 292 Mo. 421, 239 S.W. 471. (4) One suddenly confronted with danger, as was the deceased, is not required in a moment of imminent peril to safely choose between different courses open to him, and cannot be charged with contributory negligence if in such a moment he chooses the wrong way. Underwood v. Railroad, 190 Mo. App. 418, 177 S.W. 724; Carter v. Railroad, 193 Mo. App. 223, 182 S.W. 1061; Boyce v. Railroad, 120 Mo. App. 175, 96 S.W. 670; Miller v. Engle, 185 Mo. App. 578, 172 S.W. 631; Lang v. Ry. Co., 115 Mo. App. 500, 91 S.W. 1012; Ferris v. Railroad, 167 Mo. App. 392, 151 S.W. 979; Carter v. Railroad, 193 Mo. App. 223, 182 S.W. 1061; Feeney v. Railroad, 123 Mo. App. 420, 99 S.W. 477. (5) The instructions offered by defendant are largely what might be termed special demurrers, that is they direct a verdict for defendant upon a finding of certain facts without regard to the evidence and facts upon which plaintiff sought to meet the charge of contributory negligence advanced by defendant. Messer v. Gentry...