Rawie v. Chicago, B. & Q. R. Co. et al.

• Decision Date: 01 July 1925
• Docket Number: No. 25023.,25023.
• Citation: 274 S.W. 1031
• Parties: RAWIE v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Supreme Court

274 S.W. 1031

RAWIE v. CHICAGO, B. & Q. R. CO.

No. 25023.

Supreme Court of Missouri, Division No. 1.

July 1, 1925.

Motion for Rehearing Denied July 30, 1925.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Emmett J. Rawie, administrator of the estate of John Cooney, deceased, against the Chicago, Burlington & Quincy Railroad Company and others. At the close of plaintiff's case, plaintiff took nonsuit with leave as to defendant Frank E. Barnes, and, before submission took nonsuit with leave as to defendants the St. Louis Merchants' Bridge Terminal Railway Company and Alfred Schwartz. From the judgment for plaintiff as against defendants Chicago, Burlington & Quincy Railroad Company and William F. Wittrock, they appeal. Affirmed.

H. J. Nelson, of St. Joseph, and Douglas W. Robert, of St. Louis, for appellants.

John F. Clancy and Mark D. Eagleton, both of St. Louis, for respondent Rawie.

J. L. Howell and R. E. Blodgett, both of St. Louis, for respondents St. Louis Merchants' Bridge Terminal Ry. Co. and Alfred Schwartz.

LINDSAY, C.

The cause of action is based upon section 4217, R. S. 1919. Plaintiff's intestate, John Cooney, was killed on May 25, 1922, at about 3 o'clock in the afternoon, when an east-bound automobile truck in which he was riding was struck by a southbound switch engine of the Chicago, Burlington & Quincy Railroad, at the crossing of Tyler and Main streets in the city of St. Louis. Tyler street is an east and west street and Main street runs north and south. Tyler street is about 36 feet wide from curb to curb. The truck was moving eastward along the south side of Tyler street. Along the west side of Main street ran two tracks of the defendant, the Burlington Company. The space between the east and west of these two tracks was 6 and 7 feet. Extending north and south along the east side of Main street were two or more tracks of defendant St. Louis Merchants' Bridge Terminal Company. Near the center of Main street, between the tracks of the Terminal Company and the tracks of the Burlington Company and a short distance south of the south line of Tyler street,. there was a tower maintained by the Terminal Company, from which an employee of the Terminal Company operated the gates on the east and on the west side of the intersection of the two streets; the gates being lowered to shut off traffic of vehicles when trains were passing, and raised when the crossing was clear. The movement of one of the gates automatically moved the other. At the northwest corner of the crossing along the east line of Tyler street, there was a building. The building was 12 feet north of the north curb of Tyler street. The west rail of the west track of the Burlington Company was 4 or 5 feet east of this building. The engine which struck the truck in which Cooney and others were riding was moving southward on the east track of the Burlington Company. It was backing, and was not pulling any cars at the time. The engineer was on the east side of the cab of the engine and the fireman on the west side. Three switchmen were on or about the step or footboard of the tender, at its south end, as it moved southward. The truck on which Cooney and his companions were riding was owned by Brecht Butchers' Supply Company. It was a large truck with a trailer attached, both of which were heavily loaded at the time. Kulongoski, an employee of the Brecht Company, was driving the truck, and Cooney, a fellow employee, was sitting on his right. Another employee of the Brecht Company was sitting down on the floor of the cab, at the feet of Cooney, and there was also another employee of the same company riding on the trailer. The crossing gates were up when the truck approached and went on the crossing. Other facts in evidence can best be given later, in their application to the questions raised.

The plaintiff joined as defendants the Burlington Company, Wittrock, the engineer, and Barnes, the fireman, in charge of said engine; also the Terminal Company and Schwartz, the man in charge of the crossing tower.

The petition charged each of the two companies with maintaining and operating railroad tracks at the place mentioned, charged each with maintaining and operating the tower and gates, charged that Schwartz was employed by the Terminal Company, in the operation of said gates, and that, in his duties as such, he was engaged in operating the gates and signals for both of said companies.

The petition is long and need not be set out. The acts of negligence charged against the Burlington Company and Wittrock and Barnes, its engineer and fireman, were excessive and dangerous speed in approaching the crossing, failure to keep a lookout for persons and vehicles, failure to sound any warning by bell or otherwise, failure to stop said engine before the collision, and failure to observe and to stop, in violation of the humanitarian rule. The acts of negligence charged against both defendant companies and defendant Schwartz were failure to lower the crossing gates, and failure to give, otherwise, any signal or warning of the approach of the engine.

The answers of the defendants, other than the Burlington Company, were general denials. The answer of that company, in addition to the general denial, pleaded that Cooney, Kulongoski, and the other occupants of the truck were engaged in a common enterprise, and that the death of Cooney was due to the negligence of Cooney himself, and the other occupants of the truck in several respects.

At the close of the plaintiff's case the court gave the instruction offered by Barnes, the fireman, and plaintiff took a nonsuit with leave as to him, and at the close of all the evidence the court gave an instruction in the nature of a demurrer to the evidence offered by the Terminal Company and Schwartz, and, before submission, the plaintiff took a nonsuit with leave as to those defendants. Plaintiff is here on appeal from the action of the court in respect to the three defendants just mentioned. The court refused the peremptory instruction offered by the Burlington Company and Wittrock.

Plaintiff's case was submitted to the jury under two instructions authorizing recovery. Plaintiff's instruction No. 1 submitted the case under the humanitarian doctrine, and against the defendant Burlington Company only; defendant Wittrock not being mentioned in that instruction. Plaintiff's instruction No. 2, submitted the case upon primary negligence, and as against both the Burlington Company, and defendant Wittrock. The verdict returned was against these two, and in the sum of $10,000.

Counsel for appellants Burlington Company and Wittrock devote no little part of their brief and argument to the fact that instruction 1 submitting the issue, the humanitarian rule was given, and then to complaint of defects in the wording of that instruction, in that it left out necessary elements, and also included things not in evidence.

It is urged that there was an absolute failure to make a case under the humanitarian doctrine; that the demurrer to the evidence having been sustained as to Barnes, the fireman, and recovery against Wittrock, the engineer, having been abandoned, or not included under instruction 1, there was no case left against defendant Burlington Company, since, it is urged, if Wittrock was not liable the Burlington Company was not. Related to this, it is urged that instruction 1 was inconsistent with instruction 2, for plaintiff; that both purport to cover the whole case, yet that instruction 1 omits the necessary finding against the servant to hold the master liable, and that instruction 2 omits the negative negligence on the part of Cooney and the driver of the truck.

These objections, other than the last mentioned, will be disposed of at this time, and briefly, because, it is apparent that the verdict was returned in response to plaintiff's instruction No. 2, submitting the case under the issue of primary negligence, and against both the Burlington Company and Wittrock.

I. Counsel for the Burlington Company and Wittrock argue that under the two instructions the jury was confused and misled, and found against both defendants under the humanitarian doctrine, although instruction 1 was directed only against the Burlington Company. Their argument is that the case was presented on the theory, in the first, that the deceased was negligent, and in the second, that he was not negligent, and they say the theory of instruction 2, that the engine was operated at an excessive rate of speed, is inconsistent with the theory that, notwithstanding such excessive speed, it could have been stopped in time to avoid the injury. The submission of an instruction under the humanitarian doctrine did not deprive the plaintiff of the right to have an instruction based upon the theory of the excessive speed of the engine. Taylor v. Metropolitan St. R. Co., 256 Mo. loc. cit. 210, 165 S. W. 327; Montague v. Missouri & K. I. R. Co. (Mo. Sup.) 264 S. W. 813, 817. Counsel suggest as to these two cases that in them the question of contributory negligence did not arise, and that such plea was not set up in the answer in either case. But, in White v. St. Louis & M. R. R. Co., 202 Mo. 539, 101 S. W. 14, there were presented the two theories, negligence in running at an excessive speed and negligence under the humanitarian rule, and in that case (loc. cit. 544 ) .there was a plea of contributory negligence. It was held that there was no inconsistency.

In this case there was testimony for plaintiff tending to show that the engine was running at a speed of about 35 nines an hour, and testimony for defendants that its speed was 12 miles an hour, and Wittrock testified that he stopped the engine within 50 feet. Though the speed of the engine was excessive, that fact was not necessarily inconsistent with the existence of the fact that those in charge of the engine discovered or ought to have discovered the peril of Cooney and...