Reeves v. Thompson

• Decision Date: 10 May 1948
• Docket Number: 40411
• Parties: Ermal Reeves v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

211 S.W.2d 23

357 Mo. 847

Ermal Reeves v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, Appellant

No. 40411

Supreme Court of Missouri

May 10, 1948

Appeal from Cass Circuit Court; Hon. James R. Garrison Judge.

Affirmed (subject to remittitur).

Thos J. Cole, D. C. Chastain, Ray L. Shubert and H. E Sheppard for appellant.

(1) There was no substantial evidence warranting submission of the case to the jury. The court may properly reject evidence which is contrary to physical facts, or to known physical laws, or is so manifestly unsupported by the believable evidence that to allow the verdict to stand would be a travesty on justice. Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Grange v. Chicago & E.I. Ry. Co., 334 Mo. 1040, 69 S.W.2d 955. (2) Contradictory testimony of a single witness relied on to prove a fact makes no case warranting submission of the question to the jury in the absence of explanation or other circumstances tending to show which of the two versions is true. Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Goslin v. Kern, 351 Mo. 395, 173 S.W.2d 79; Steele v. K. C. Southern Ry. Co., 265 Mo. 97, 175 S.W. 177. (3) The plaintiff was guilty of contributory negligence as a matter of law. Plaintiff waited for the train going east to pass the crossing, and immediately thereafter walked behind the eastbound train and into the place of danger in front of the westbound train without stopping to look and listen for the train on the passing track where looking would have been effective. State ex rel. Hines v. Bland, 237 S.W. 1018; Haden v. Railroad, 124 Mo. 566, 28 S.W. 74; Henderson v. St. Louis & S.F. Ry. Co., 284 S.W. 788, 314 Mo. 414; State ex rel. Kansas City Southern v. Shain, 340 Mo. 1195, 105 S.W.2d 915. (4) A railroad is a signal of danger, and if to look or listen will enable one approaching a railroad track to see or hear an approaching train, failure to do so is negligence as a matter of law, and if objects obstruct the view, or noise interferes with his hearing, his conduct must meet these conditions before he has exercised ordinary care under the circumstances. Burge v. Wabash Railroad Co., 244 Mo. 76, 148 S.W. 925; Marrow v. Hines, 233 S.W. 493; Diamond v. Terminal Railroad Assn., 346 Mo. 333, 141 S.W.2d 789; Zickelfoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784; Fitzpatrick v. K.C.S. Ry. Co., 347 Mo. 57, 146 S.W.2d 560. (5) The court erred in giving plaintiff's Instruction 1. The evidence showed the crossing to be a private crossing. (6) Misconduct of the plaintiff's counsel in persisting in questioning witnesses, before the jury as to a conversation between the claim agent and certain witnesses after objection had been sustained by the court which conduct was highly prejudicial to the defendant. (7) Because the verdict was the result of passion and prejudice. (8) The verdict of the jury was excessive. Goslin v. Kern, 351 Mo. 395, 173 S.W.2d 79; Keible v. Quincy, O. & K.C.R. Co., 285 Mo. 603, 227 S.W. 42; Johnson v. Chicago & E.I. Ry. Co., 334 Mo. 22, 64 S.W.2d 674; Rose v. St. Louis-S.F. Ry. Co., 315 Mo. 1181, 289 S.W. 913; Bryant v. K.C. Ry. Co., 286 Mo. 342, 228 S.W. 472.

Crouch & Crouch, Dan Boyle, Arthur C. Popham, Sam Mandell and Popham, Thompson, Popham, Mandell & Trusty for respondent.

(1) Whatever conflicts existed between plaintiff's testimony and his alleged statement to the claim agents did not destroy or vitiate his testimony as a matter of law as appellant contends, but were to be resolved by the jury. McNatt v. Wabash Ry. Co., 341 Mo. 516, 108 S.W.2d 33; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Rothe v. Hall, 352 Mo. 926, 180 S.W.2d 7. (2) Whatever conflicts existed between plaintiff's father's testimony and his alleged statement to the claim agents did not destroy or vitiate his testimony as a matter of law as appellant contends, but were to be resolved by the jury. Cases under (1), supra. (3) On this record appellant cannot invoke the rule that it is the duty of this court to reject all of plaintiff's evidence as contrary to physical facts or physical laws and so manifestly unsupported by the believable evidence that the verdict should not stand. Ford v. Louisville & N.R. Co., 196 S.W.2d 163; Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621; Doyle v. St. Louis Merchants Bridge Term. Ry. Co., 326 Mo. 425, 31 S.W.2d 1010; Winters v. York Motor Express, 116 Pa.Super. 421, 176 A. 812; Hegarty v. Berger, 304 Pa. 221, 155 A. 484; Meek v. Miller, 38 F.Supp. 10. (4) Plaintiff was not guilty of contributory negligence as a matter of law. Donohue v. St. Louis, I.M. & S. Ry., 91 Mo. 357, 2 S.W. 424; Gorman v. Franklin, 117 S.W.2d 289; State ex rel. K.C.S. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Jackson v. Southwest Mo. R. Co., 189 S.W. 381; Montgomery v. Mo. Pacific Ry. Co., 181 Mo. 477, 79 S.W. 930. (5) Plaintiff made a submissible case, and the court properly overruled defendant's request for directed verdict (Instruction B.). Cases under (1), (2), (3) and (4), supra. Savage v. C., R.I. & P. Ry., 328 Mo. 44, 40 S.W.2d 628; Secs. 5274, 5275, R.S. 1939. (6) The evidence showed that the crossing was a public crossing generally and heavily used by the public and by vehicles and pedestrians, and the jury were properly required in plaintiff's Instruction 1 to find such fact as a predicate to plaintiff's recovery. Russell v. Atchison, T. & S.F. Ry. Co., 70 Mo.App. 88. (7) The record shows no misconduct of plaintiff's counsel, and if any error occurred in connection with the impeaching rebuttal testimony of plaintiff's wife, or the attempt to lay a foundation therefor, such error was against the plaintiff and not against the defendant. (8) Plaintiff's verdict was not excessive. Hurst v. Chicago, B. & Q.R. Co., 280 Mo. 566, 219 S.W. 566; Petty v. Kansas City Pub. Serv. Co., 354 Mo. 823, 191 S.W.2d 653; Lankford v. Thompson, 354 Mo. 222, 189 S.W.2d 217; Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Dobson v. Otis Elevator Co., 324 Mo. 1147, 26 S.W.2d 942; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66.

Bradley, C. Dalton and Van Osdol, C.C., concur.

OPINION

BRADLEY

Action for personal injury; verdict and judgment went for plaintiff for $ 22,500; defendant appealed.

Plaintiff's right arm was severed at the elbow by defendant's freight train at Napoleon, Missouri, about 3:30 a.m., May 23, 1942. The cause was filed May 9, 1946, and tried February 5, 1947. The negligence alleged was (1) that the train was operated without a headlight; (2) at a high, dangerous and reckless rate of speed; and (3) failure to sound whistle or bell or give other warning of the train's approach to the crossing on which plaintiff was struck. The answer was, in effect, a general denial and also a plea of contributory negligence. The cause was submitted on all grounds alleged except the second.

Error is assigned (1) on overruling defendant's motion for a directed verdict at the close of the case; (2) on plaintiff's instruction No. 1; (3) on the alleged misconduct of plaintiff's counsel; and (4) that the verdict was the result of passion and prejudice and is excessive.

Defendant makes two contentions respecting the motion for a directed verdict. First, it is contended that plaintiff's evidence as to how he was injured was completely nullified by contradictory statements to defendant's claim agent and to plaintiff's father. Second, defendant contends that plaintiff was guilty of contributory negligence as a matter of law. These questions are interrelated, but we dispose of them separately and in the inverse order. First, was plaintiff guilty of contributory negligence as a matter of law? Plaintiff (respondent) resided at Lexington, Missouri, but was employed on a Government boat at Napoleon. His hours were from 12 noon to 12 noon the following day; then he was off for 24 hours. If the work was not too heavy he slept some on the boat, and plaintiff said that he slept "a lot" on the previous night. On the day before the night of injury plaintiff worked until noon; arrived home, Lexington, about 1:30 p.m.; slept until about 6 o'clock. Plaintiff's father operated a filling station at Napoleon and slept in the station. On the night of injury plaintiff went from Lexington to Napoleon with William Martin in Martin's car. He had taken a few beers in Lexington, but the evidence was that he was not intoxicated. Plaintiff's father had asked him to bring him (the father) a quart of whiskey and plaintiff did that, and that is his excuse for going back to Napoleon that night. Plaintiff and Martin arrived at Napoleon between 1 and 3 o'clock a.m., and plaintiff awakened his father and remained at the filling station until shortly before he was injured.

Napoleon is on the River Route of the Missouri Pacific from Jefferson City to Kansas City, and about 12 miles west of Lexington. At Napoleon the railroad runs approximately east and west. Government enigneers have a supply depot and supply yards at Napoleon on the Missouri River. A state highway extends east and west through Napoleon. The railroad tracks are between the highway and the supply depot and yards of the Government engineers. There is a road extending north and south over the railroad tracks from the south side of the tracks to the supply depot and yards. There are three railroad tracks. The main line is the south track, next north is the passing track, and then a switch track to the supply yards. The passing track is about 8 feet north of the main line and will hold about 85 cars. The passing track connected with the main line 4 or 5 car lengths west of the road leading to the engineers' depot and yards, and connected with the main line about 80 car lengths...