Perkins v. Terminal Railroad Assn., 33864.

• Citation: 102 S.W.2d 915
• Decision Date: 24 March 1937
• Docket Number: No. 33864.,33864.
• Parties: JOHN PERKINS v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.
• Court: United States State Supreme Court of Missouri

102 S.W.2d 915 JOHN PERKINS
v.
TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant. No. 33864. Supreme Court of Missouri. Court en Banc, March 24, 1937.

[102 S.W.2d 916]

Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.

AFFIRMED (upon condition).

T.M. Pierce, J.L. Howell and Walter N. Davis for appellant.

(1) Plaintiff failed to make a submissible case for the following reasons: The humanitarian doctrine was inapplicable because the record is without probative evidence that defendant, after plaintiff reached the danger zone and a position of imminent peril, could have stopped the train, slackened its speed or warned him in time to have forestalled the collision and injury. McGee v. Railroad Co., 214 Mo. 530, 114 S.W. 33; Shepherd v. Railroad Co., 72 S.W. (2d) 985; Elkin v. Pub. Serv. Co., 74 S.W. (2d) 600; Guyer v. Railroad Co., 174 Mo. 344, 73 S.W. 584; Roenfeldt v. Ry. Co., 180 Mo. 554, 79 S.W. 706; Markowitz v. Met. St. Ry. Co., 186 Mo. 350, 85 S.W. 351; Degonia v. Railroad Co., 224 Mo. 564, 123 S.W. 807; Burge v. Railroad Co., 244 Mo. 76, 148 S.W. 925; Rollinson v. Railroad Co., 252 Mo. 525, 160 S.W. 994; Sullivan v. Railroad Co., 308 Mo. 48, 271 S.W. 983; State ex rel. v. Bland, 313 Mo. 246, 281 S.W. 690; Womack v. Railroad Co., 88 S.W. (2d) 368. (a) Plaintiff will not be permitted to avail himself of defendant's testimony wholly inconsistent with his own. Pentecost v. Railroad Co., 66 S.W. (2d) 536. (2) Plaintiff's Instruction 1 is erroneous. It does not provide a finding that plaintiff was not aware of the approach of the train, prior to plaintiff's reaching the danger zone. Nor does it provide a finding as to the place plaintiff was in a possible position of imminent peril; or that the failure to slacken speed was the cause of the accident; or that the speed could have been slackened. It permits the jury to speculate as to when he reached a position of imminent peril. Pentecost v. Railroad Co., 66 S.W. (2d) 535. (a) Plaintiff's Instruction 1, purporting to cover the whole case and directing a verdict for plaintiff is erroneous, where it omits an essential element of negligence necessary to plaintiff's right to recover, and it cannot be cured by an instruction given for defendant. State ex rel. v. Ellison, 272 Mo. 581, 199 S.W. 984. (b) Plaintiff's Instruction 1 is in direct conflict with defendant's Instruction 4, Ill. Cent. Railroad Co. v. Eicher, 202 Ill. 564. (3) In refusing to give and read to the jury defendant's Instruction I, the court erred, for it is sufficient either to ring the bell or blow the whistle as a warning. Lynch v. Railroad Co., 61 S.W. (2d) 918. (4) In his opening statement, plaintiff's counsel advised the jury that plaintiff was suing for $35,000. Defendant immediately asked the court to reprimand plaintiff's counsel and, upon his refusal to do so, then asked that the jury be discharged. In refusing to do so, the court erred for the following reasons: (a) It has been held error to inform the jury by a measure of damage instruction of the amount sued for. Bales v. K.C. Pub. Serv. Co., 328 Mo. 171, 40 S.W. (2d) 669. (b) Advising the jury of the amount sued for amounted in substance to reading the pleadings to the jury. This may not be done and is error. Gorman v. Railroad Co., 28 S.W. (2d) 1025. (5) The verdict was and is excessive. Carpenter v. Wab. Ry. Co., 71 S.W. (2d) 1071; Colwell v. Railroad Co., 73 S.W. (2d) 222; Clark v. A. & E.B. Co., 333 Mo. 721, 62 S.W. (2d) 1079; Hiatt v. Wab. Ry. Co., 334 Mo. 895, 69 S.W. (2d) 627; Lepchinski v. Railroad Co., 332 Mo. 194, 59 S.W. (2d) 610; Klenlein v. Foskin (Mo.), 13 S.W. (2d) 648; Powelson v. Railroad Co., 263 S.W. 149; McQuary v. Railroad Co., 306 Mo. 697, 269 S.W. 605; Tash v. Railroad Co., 76 S.W. (2d) 690.

[102 S.W.2d 917]

Eagleton, Waechter, Yost, Elam & Clark for respondent.

(1) The plaintiff's position of imminent peril was the basic, ultimate, issuable fact of liability, and what caused his position to be one of imminent peril, or what caused plaintiff to get into the position of imminent peril, are wholly immaterial. Bode v. Wells, 332 Mo. 386, 15 S.W. (2d) 335; McGowan v. Wells, 324 Mo. 652, 24 S.W. (2d) 633; Grubbs v. K.C. Pub. Serv. Co., 329 Mo. 390, 45 S.W. (2d) 71; Kloeckner v. St. L. Pub. Serv. Co., 53 S.W. (2d) 1043; State ex rel. Himmelsbach v. Becker, 85 S.W. (2d) 420; Freeman v. Berberich, 332 Mo. 831, 60 S.W. (2d) 393; Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951, 74 S.W. (2d) 600; Larey v. M.K. & T. Railroad Co., 333 Mo. 949, 64 S.W. (2d) 681; Millhouser v. K.C. Pub. Serv. Co., 55 S.W. (2d) 673; Zumwalt v. C. & A. Railroad Co., 266 S.W. 717. (2) The instruction having specifically required a finding of the basic, ultimate, issuable fact of plaintiff's position of imminent peril, any obliviousness essential to such position of imminent peril, being but a subsidiary evidentiary fact, was not required to be specifically found, but was necessarily required to be found in a finding of the basic, ultimate, issuable fact. The term "imminent peril" did not need to be defined by the instruction. The instruction did not have to require any more than a finding of the basic, ultimate, issuable fact. Bryant v. K.C. Rys. Co., 286 Mo. 342, 228 S.W. 472; Karte v. Brockman Mfg. Co., 247 S.W. 417; Wenzel v. Busch, 259 S.W. 767; Clark v. Railroad Co., 319 Mo. 865, 6 S.W. (2d) 954; Montague v. Railroad Co., 305 Mo. 269, 264 S.W. 813; Jordan v. St. J. Ry., L.H. & P. Co., 331 Mo. 319, 73 S.W. (2d) 205; Scott v. Term. Railroad Assn., 86 S.W. (2d) 116. (3) No finding of plaintiff's obliviousness was required in view of the fact that the evidence made a submissible case for the jury under the humanitarian doctrine based upon failure to slacken the speed of the train, after plaintiff had knowledge of the approach of the train, he then being in a position where he could not, by his own efforts, avoid the collision (inextricable peril). (4) There was no disputed issue in the case with reference to plaintiff's obliviousness in view of the fact that: (a) There being no dispute in the evidence as to plaintiff's obliviousness, such fact will be taken as admitted, and may be assumed in the instructions. Keyes v. Railroad Co., 326 Mo. 236, 31 S.W. (2d) 50; Hill v. St. L. Pub. Serv. Co., 64 S.W. (2d) 633; Karte v. Brockman Mfg. Co., supra; Wenzel v. Busch, supra. (b) The defendant's answer having charged plaintiff with being oblivious, such fact is admitted, and may be assumed in the instructions. Lynch v. C. & A. Railroad Co., 208 Mo. 1, 106 S.W. 68; Wahl v. Cunningham, 332 Mo. 21, 56 S.W. (2d) 1052; Crockett v. K.C. Rys. Co., 243 S.W. 902; Fledderman v. Ry. Co., 254 S.W. 717; Allen v. Purvis, 30 S.W. (2d) 196; Stout v. K.C. Pub. Serv. Co., 17 S.W. (2d) 363; Bruns v. United Rys. Co., 251 S.W. 760; Schmitter v. United Rys. Co., 245 S.W. 629; State ex rel. Natl. Newspapers Assn. v. Ellison, 200 S.W. 433.

TIPTON, J.

We have come to the conclusion that the statement of facts and the ruling on the demurrer to the evidence of the divisional opinion by Commissioner HYDE are correct and will adopt the same without the use of quotation marks.

This is an action for personal injuries, sustained by plaintiff when a truck, driven by him, was struck by defendant's train. The case was submitted solely upon negligence under the humanitarian doctrine in failing to sound an audible warning and to slacken speed. Plaintiff had a verdict and judgment for $20,000. Defendant has appealed from this judgment.

Defendant contends that its demurrer to the evidence at the close of the case should have been given because there was no case made under the humanitarian rule. The evidence, viewed in the light most favorable to plaintiff, tended to show the facts and circumstances hereinafter stated. On April 8, 1933, plaintiff driving his truck, loaded with ashes, east on Talcott Avenue in the city of St. Louis, approached its intersection with McKissock Avenue, which runs north and south across Talcott Avenue. Edward Wisa was riding with him, sitting on the right (south) side of the car. Defendant had its two main tracks laid along the east side of McKissock Avenue, and these tracks were straight for several blocks south. There were some store buildings along the west side of McKissock Avenue with an unpaved cinder roadway between them and these tracks. Talcott Avenue was forty feet wide from curb to curb paved with brick and ran slightly downgrade to the east. At the southwest corner of the intersection there was a barbecue stand which extended east beyond the other buildings on the west side of McKissock Avenue. It was twenty-six feet from the west building line of McKissock Avenue to the west rail of defendant's western track, which was used for the southbound trains. It was thirty-nine feet from this building line to the west rail of defendant's eastern track, used for northbound trains. The space between the northbound and southbound track was about eight feet. Plaintiff said that he drove into the intersection and stopped when he was about three feet east of the west side of the barbecue stand where he had a view both ways on McKissock Avenue and looked first north and then south. He said he neither saw nor heard a train and started up to cross the tracks.

It was a few minutes after seven P.M. Plaintiff said that it was dark and that he had the lights on his truck burning. He said a lighted object could be seen 250 to 300 feet. On that day, the sun set at six-thirty-one P.M., with the sky partly cloudy. There had been sprinkles of rain around six P.M. There was a street light at the northwest corner of the intersection and another at the southeast corner. These lights reflected light over an area with a radius of about fifty feet. There was a street light 158 feet south of the intersection on the west side of McKissock Avenue and another on the east side 283 feet south. There were also two street lights at the next...