Rawie v. Chicago, Burlington & Quincy Railroad Co.
| Citation | 274 S.W. 1031,310 Mo. 72 |
| Decision Date | 30 July 1925 |
| Docket Number | 25023 |
| Parties | EMMETT J. RAWIE, Administrator of Estate of JOHN COONEY, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, WILLIAM F. WITTROCK, ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY, FRANK F. BARNES and ALFRED SCHWARTZ; CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY and WILLIAM F. WITTROCK, Appellants |
| Court | Missouri Supreme Court |
Rehearing Granted, Reported at 310 Mo. 72 at 103.
Appeal from St. Louis City Circuit Court; Hon. Wilson A Taylor, Judge.
Affirmed.
Douglas W. Robert for appellant.
(1) The deceased and the driver of the truck were engaged in a joint enterprise, hence the negligence of the driver was the negligence of the deceased. Tannehill v. Ry., 279 Mo. 158. To fail to stop, or look, or listen was negligence barring a recovery under the statute which requires the highest degree of care on the part of those driving motor vehicles. Laws 1921, Ex. Sess., p. 91, sec. 19; Conrad v Hamra, 253 S.W. 808; Threadgill v. Rys. Co., 279 Mo. 466; England v. Railroad, 180 S.W. 32. The deceased and the driver were guilty of such contributory negligence as a matter of law as to bar a recovery. State ex rel. Hines v. Bland, 237 S.W. 1018; Burge v. Railroad, 244 Mo. 76; Laun v. Railroad, 216 Mo. 563; Stotler v. Railroad, 204 Mo. 619; Schmidt v. Railroad, 191 Mo. 215; Huggart v. Ry., 134 Mo. 678; Hixson v. Railroad, 80 Mo. 335; Stillman v. Railroad, 266 S.W. 1005; Aldrich v. Railroad, 256 S.W. 93; Wolf v. Wab. Ry., 212 Mo.App. 26; Sullivan v. Railroad, 213 Mo.App. 20. And even without reference to the driver, the deceased, in failing to look out for his own safety, was guilty of contributory negligence, as a matter of law, which would prevent recovery. Friedman v. United Rys. Co., 293 Mo. 235; Sorrell v. Payne, 247 S.W. 462; Fechley v. Traction Co., 119 Mo.App. 358; Leapard v. K. C. Rys., 214 S.W. 268; Burton v. Pryor, 198 S.W. 1117. (3) There was an absolute failure to make a case under the humanitarian doctrine. Alexander v. Railroad, 289 Mo. 599; State ex rel. v. Reynolds, 289 Mo. 479; Tannehill v. Railroad, 279 Mo. 158; Keele v. Railroad, 258 Mo. 62; Rollison v. Railroad, 252 Mo. 525. (a) The demurrer to the evidence as to defendant Barnes having been sustained, and all recovery as to defendant Wittrock on the humanitarian doctrine having been abandoned by the plaintiff, there was no case left against the defendant railroad. If the servants were not guilty the master could not be held liable. McGinnis v. Railroad, 200 Mo. 347; Wade v. Campbell, 211 Mo.App. 274; Baird v. Flour Mills, 203 Mo.App. 432. (b) There was no evidence that the engine could have been stopped, while going thirty, thirty-five or forty miles an hour, in time to have avoided the collision. Fleming v. Railroad, 263 Mo. 180; Hamilton v. Railroad, 250 Mo. 714; Henson v. Railroad, 256 S.W. 771; Ross v. Davis, 213 Mo.App. 209. (c) There was no evidence that the engine could have been stopped in time to avoid the injury with safety to the men upon it. Burge v. Railroad, 244 Mo. 76; Whiteside v. Railroad, 186 Mo.App. 608. (4) Instructions 1 and 2 conflict with each other, and are inconsistent. Hall v. Railroad, 219 Mo. 553; Bensieck v. Cook, 110 Mo. 182; Tower v. Moore, 52 Mo. 120. (a) Instructions 1 and 2 purport to cover the whole case, yet Number 1 omits the necessary finding against the servant to hold the master liable and number 2 omits to negative negligence on the part of the plaintiff's intestate and the driver. Enloe v. Fdy. Co., 240 Mo. 443; Johnson v. Bldg. Co., 171 Mo.App. 543; Kelly v. City St. Joe, 170 Mo.App. 258. (b) Instructions 1 and 2 conflict with Instructions 6, 8 and 9. (5) Plaintiff's Instruction 1 was not authorized by the evidence and in addition omitted many elements required by the humanitarian doctrine and included many things not in the evidence. (a) The instruction authorized a recovery against the railroad alone and omits all reference to defendant Wittrock. If Wittrock, the engineer, was not liable, the employer, the railroad, was not. McGinniss v. Railroad, 200 Mo. 347; Wade v. Campbell, 211 Mo.App. 274; Baird v. Flour Mills, 203 Mo.App. 432. (b) The instruction failed to require the jury to find from the evidence that these defendants saw, or by the exercise of ordinary care could have seen that Cooney was unable to extricate himself from "said imminent peril." George v. Railroad, 251 S.W. 729. (c) It fails to require the jury to find that warning of the approach of the engine would have been heard or heeded by Cooney so that he would thereby remove himself from danger. Green v. Railroad, 192 Mo. 143; George v. Railroad, 251 S.W. 729; Alexander v. Traction Co., 249 S.W. 971; Battles v. U. Rys. Co., 178 Mo.App. 576; Ziegler v. U. Rys. Co., 220 S.W. 1016; Ross v. Davis, 213 Mo.App. 209. (d) There is no evidence that the engine could have been stopped at the rate of speed plaintiff's evidence showed it was going thirty, thirty-five or forty miles per hour. Hamilton v. Railroad, 250 Mo. 714; McKenzie v. Randolph, 257 S.W. 126; Ross v. Davis, 213 Mo.App. 209; Champion Paper Co. v. Shilkee, 237 S.W. 109. (e) There is no evidence that a stop before the collision could have been made with safety to the persons upon the engine while going at any rate of speed. Burge v. Ry., 244 Mo. 76; Whitesides v. Railroad, 186 Mo.App. 608. (f) It authorizes the jury to find that the truck and Cooney were "on said track" and "were in a position of imminent peril of being collided with said switch engine," while the engine was approaching Tyler Street, and there is no evidence to support this. Degonia v. Ry. Co., 224 Mo. 564; Champion Paper Co. v. Shilkee, 237 S.W. 107. (6) Plaintiff's Instruction 2 was not authorized by the evidence and omitted many elements required to warrant a jury in finding for plaintiff upon the simple or primary negligence theory. (a) The instruction purported to cover the whole case on the primary negligence and ignored the negligence of the driver and the deceased. Jacquith v. Plumb, 254 S.W. 89; Kelley v. St. Joseph, 170 Mo.App. 358; Johnson v. Bldg. Co., 171 Mo.App. 543. (b) The only charge of negligence referred to is the rate of speed, which the jury were authorized to find high, excessive, unreasonable and dangerous "under the circumstances and conditions there." This of course included the fact that the gates were up, for which these defendants were not responsible, hence this instruction conflicted with defendant's Instruction 4 and 6. Wills v. Railroad, 133, Mo.App. 625. (c) The fact, if it was, that the engine was run at an excessive rate of speed, does not render defendants liable to one who is hurt by going on the track without looking or listening. Moore v. Transit Co., 95 Mo.App. 750. (d) This instruction authorized a verdict against both defendants. Sec. 4218, R. S. 1919, does not authorize a joint judgment. It provides that either the company operating at the time "or" the employee causing the death shall forfeit. The statute is penal and should be strictly construed. Grier v. Railroad, 286 Mo. 523. (7) Defendant's Instruction 10 should not have been modified, but should have been given as offered. There was no evidence that the defendants could by the exercise of ordinary care, have discovered that the deceased was unable to extricate himself from any perilous position. Cases cited under Point 3.
John F. Clancy and Mark D. Eagleton for respondents.
(1) The driver of the truck, although a fellow-servant of Cooney, was not subject to his direction or control and they were not upon any joint enterprise, and the negligence, if any, of said driver was not imputable to Cooney. Rowe v. U. Ry Co., 211 Mo.App. 537; Simpson v. Wells, 237 S.W. 526; Sluder v. Transit Co., 189 Mo. 107; Moon v. Transit Co., 237 Mo. 425. (2) Neither Cooney nor the driver of the truck was guilty of any negligence which contributed to cause this unfortunate collision. All of the lay witnesses testified that it was impossible to discover the approach of the southbound train until the truck actually reached the rails of the first track. Cooney did actually discover it as soon as it was possible to do so, and thereafter made every effort to avoid injury. Brown v. Railroad, 252 S.W. 55; Moore v. Davis, 210 Mo.App. 181. (3) Plaintiff was entitled to go to the jury under the humanitarian doctrine. The evidence showed that the engine was traveling at the rate of from twelve to fifteen miles an hour and could have been stopped within twenty to twenty-five feet. The engineer testified that the engine was actually stopped within fifty feet from the time he applied his brakes and attempted to stop. Whenever the evidence shows the distance in which a train or car was stopped it abolishes the need of an expert. Ellis v. Ry. Co., 234 Mo. 685; Beier v. Transit Co., 197 Mo. 231; Griggs v. Transit Co., 228 S.W. 508; Hucksold v. U. Rys. Co., 234 S.W. 1074. (4) By submitting an instruction authorizing a recovery under the humanitarian doctrine plaintiff was not precluded from relying upon the assignment of negligence with reference to the excessive speed of the engine. Taylor v. Met. St. Ry., 256 Mo. 210; Montague v. Ry. Co., 264 S.W. 817. (a) It was not necessary to negative the defenses of contributory negligence which were submitted by the defendants in their instructions. State ex rel. v. Trimble, 291 Mo. 227. (b) Section 4217 clearly provides that in this character of action the plaintiff may elect to proceed either against the master and servant jointly, or may sue either the master or the servant. The plaintiff followed the statute and obtained a joint judgment against the master and servant. (5) In plaintiff's instruction under the humanitarian doctrine a verdict against the defendant railroad was authorized, whereas under...
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