Poehler v. Lonsdale

• Decision Date: 06 June 1939
• Parties: EDWARD F. POEHLER, RESPONDENT, v. JOHN G. LONSDALE AND J. M. KURN, TRUSTEES IN BANKRUPTCY OF ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS
• Court: Missouri Court of Appeals

129 S.W.2d 59

235 Mo.App. 202

EDWARD F. POEHLER, RESPONDENT, v. JOHN G. LONSDALE AND J. M. KURN, TRUSTEES IN BANKRUPTCY OF ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS

Court of Appeals of Missouri, St. Louis

June 6, 1939

Motion for rehearing overruled June 20, 1939.

Appeal from the Circuit Court of City of St. Louis.--Hon. Harry F Russell, Judge.

AFFIRMED.

Judgment affirmed.

J. W Jamison, A. P. Stewart and C. H. Skinker, Jr., for appellants.

(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendants at the close of the whole case should have been given. (2) Under the evidence most favorable to plaintiff, and under the physical facts in the case, plaintiff was guilty of contributory negligence as a matter of law. State ex rel. K. C. So Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Solomon v. Duncan, 194 Mo.App. 517, 185 S.W. 1141; Lee v. Atlantic Coast Line R. Co. (N. C.), 193 S.E. 395; Scruggs v. Baltimore & O. R. Co. (Ill.), 4 N.E.2d 878; Secs. 7775, 7778, R. S. Mo. 1929 (3) The evidence as to defendants' alleged negligence was insufficient to take the case to the jury. 52 C. J. 190, sec. 1782; Philadelphia & R. Ry. Co. v. Dillon (Del.), 114 A. 62, 15 A. L. R. 984; Reines v. Chicago, M., St. P. & P. R. Co. (Wash.), 80 P.2d 406.

Joseph N. Hassett and Vernon L. Turner for respondent.

(1) Plaintiff is not guilty of contributory negligence as a matter of law unless the evidence is so clear that all reasonable minds must reach the conclusion that plaintiff failed to use due care. If reasonable minds may differ, it is a question for the jury. Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Morris v. Atlas Cement Co., 323 Mo. 307, 19 S.W.2d 865. In the following cases plaintiffs have been allowed to go to a jury where automobiles have been driven into freight trains obstructing crossings. Mallett v. So. P. Ry. (Cal.), 68 Pac (2d) 281; Hofstedt v. So. P. Co. (Cal.), 1 P.2d 470; Los Angeles & S. L. R. Co. v. Lytle (Nev.), 47 P.2d 934, 52 P.2d 464; Shelley v. Pollard (Go.), 189 S.E. 570; Mann v. Central of Ga. (Ga.), 160 S.E. 131; Short v. Penn. R. Co. (Ohio), 187 N.E. 737; Beaumont S. L. & W. R. Co. v. Richmond (Tex.), 78 S.W.2d 232; Patterson v. C. R. I. & P. R. Co. (La.), 175 So. 164; Spiers v. A. Coast L. R. Co. (S. C.), 178 S.E. 136; Richard v. Maine Cent. R. Co. (Maine), 168 A. 811. In Missouri drivers of automobiles have been allowed to recover for driving into unlighted obstructions on the highway. Bedsaul v. Feeback, 341 Mo. 50, 106 S.W.2d 431; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Kendrick v. Kansas City (Mo.), 237 S.W. 1011; Roper v. Greenspon, 272 Mo. 288, 198 S.W. 1107; Love v. Kansas City (Mo. App.), 118 S.W.2d 69; McGrory v. Thurnau (Mo. App.), 84 S.W.2d 147; Metz v. Kansas City, 229 Mo.App. 402, 81 S.W.2d 462; Fitzpatrick v. Service Const. Co., 227 Mo.App. 1074, 56 S.W.2d 822; Junk v. Tucker Transp. Co. (Mo. App.), 52 S.W.2d 570; Williams v. Mexico, 224 Mo.App. 1224, 34 S.W.2d 992; Plater v. W. C. Mullins Const. Co., 223 Mo.App. 650, 17 S.W.2d 658; Snyder v. Murray, 223 Mo.App. 671, 17 S.W.2d 639; Powell v. Schofield, 223 Mo.App. 1041, 15 S.W.2d 876; Pyle v. Univ. City (Mo. App.), 279 S.W. 217; Ross v. Hoffman (Mo. App.), 269 S.W. 679; Frank v. Meletio (Mo. App.), 251 S.W. 95; Columbia Taxicab Co. v. Stroh (Mo. App.), 215 S.W. 748. (2) The evidence was sufficient to make a case of negligence against defendant, and plaintiff was entitled to go to the jury. Fife v. Chicago & Alton R. R. Co., 174 Mo.App. 655; Elliott v. Mo. P. Ry. Co., 227 Mo.App. 225, 52 S.W.2d 448; Sec. 4830, R. S. Mo. 1929; Homan v. Mo. P. Ry. Co., 334 Mo. 61, 64 S.W.2d 617; Toeneboehm v. St. L., etc., R. Co., 317 Mo. 1096, 298 S.W. 795; Cotner v. St. L., etc., R. Co., 220 Mo. 284, 119 S.W. 610; Roshel v. L. & M. Ry. Co. (Mo. App.), 112 S.W.2d 876; Sisk v. C. B. & Q. R. (Mo. App.), 67 S.W.2d 830; Alewel v. E. St. Louis & S. Ry. Co. (Mo. App.), 26 S.W.2d 869; Connole v. Ill. Cent. R. Co. (Mo. App.), 21 S.W.2d 907; Thomas v. C. R. I. & P. R. (Mo. App.), 271 S.W. 862.

SUTTON, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff in a collision of his automobile with a coal car in defendants' train.

The trial, with a jury, resulted in a verdict and judgment for plaintiff for $ 1896, and defendants appeal.

Error is assigned by defendants here for the refusal of their instruction in the nature of a demurrer to the evidence. The assignment is put on the grounds, (1) that the evidence as to defendants' negligence was insufficient to take the case to the jury, and (2) that under the evidence most favorable to plaintiff, and under the physical facts in the case, plaintiff was guilty of contributory negligence as a matter of law.

The collision occurred between one and two o'clock A. M. on December 15, 1934, at the inter section of the railway tracks, which run north and south, with Gravois Road, which runs east and west, in St. Louis County. Plaintiff was driving his model A Ford coupe east on Gravois Road. Miss Venita Nelson was riding in the coupe with him.

Concerning the collision and the attendant circumstances plaintiff testified as follows:

"There was a fine mist and dense fog. I could see ahead down the pavement about twenty feet, according to the light shining. I was driving east along Gravois Road on the south side of the pavement, and all at once I struck a train. As I came east on Gravois Road I was driving about twenty miles an hour. I drove about the same speed all the time. I could see the pavement about twenty to twenty-five feet ahead. I ran right on the railroad crossing without any warning. I was not familiar with the highway prior to the accident. I did not know I was approaching a railroad crossing as I was driving eastward. I did not know there was a railroad crossing that crossed there. There was nothing to attract my attention that I was going across a railroad crossing. I had my window half way lowered. Miss Nelson's window was up. I did not hear any noise of any kind as I drove along there. I did not hear any railroad whistle nor engine whistle, nor any railroad bell or engine bell. There were no lights there. I was looking ahead watching the pavement and watching ahead. There were no lights of any kind as I came over there to the crossing. I did not see anything on the crossing. The first time I knew anything about this train is when I woke up in the hospital that morning around 8:30 or 9 o'clock. I never at any time saw any obstruction in the road. The headlights on my car were in good condition. I had recently put in a new battery. The headlights worked off the battery. On an ordinary night when there is no fog or mist I imagine my lights would show about 30 to 35 feet down the pavement, and with the mist and dense fog I could see 20 to 25 feet ahead of me. Going 20 miles an hour I judge I could stop my car in 20 to 25 feet. I did not see the freight train nor the freight car on the crossing. I did not slow up my car any prior to colliding with the freight car. It was not raining; there was just a mist and dense fog. My lights were focused on the pavement about 20 to 25 feet ahead of me. The dense fog kept me from seeing the freight car. I could see the pavement all right, so far as my lights were shining, 20 to 25 feet, but straight ahead it was just dark, couldn't see into the fog. The main beam of my headlight was focused on the pavement, and the fog kept the light from reflecting back, that is, I couldn't see this freight car because of the fog. The headlights on my car were the ones that came with it. I had my headlights turned on bright that night, and they were focused down on the pavement about 20 or 25 feet ahead of me."

Venita Nelson testified as follows:

"We were driving that night about 20 miles an hour. There was a fog in Gravois Road. I could see about 20 or 25 feet ahead of me, that is, I could see the beam of the headlight on the pavement, could not see any surrounding objects. I could see the pavement. I saw nothing across the road. I was looking ahead and listening. I did not hear any whistle or bell or noise of any kind. I had no warning of any kind that we were about to run into anything. We were driving along at about twenty miles an hour, everything normal, and then the lights went out. The first I remember about this accident was about five weeks later. I was unconscious that long. The headlights were in good condition so far as I could tell. There was a dense fog at the time of the accident. Just prior to the collision I was looking ahead. There were no lights of any kind ahead that I could see. I did not know we were coming to a crossing. There were no lights of any kind ahead. The only lights around there were the lights on the automobile. I did not see anything to indicate that we were coming to a railroad crossing or coming to a train across the crossing."

All the witnesses agreed that the night was dark and cloudy, though the trainmen stated there was no fog.

The evidence shows that Gravois Road was a four-lane road paved with concrete and was about fifty feet wide. It carried a vast amount of vehicular traffic. It was one of the main arteries of travel leading into the City of St. Louis, and was designated and known as highway 30. It was a direct cutoff from South St. Louis to U.S. Highway 66 and 67. The railroad crossing where the collision occurred was just a few miles from the St. Louis city limits. There were no gates or signal lights or bells of any kind at the crossing. There was a wooden crossarm on the north side of the highway about twelve feet west of...