Rentfrow v. Thompson

• Decision Date: 12 December 1941
• Docket Number: 37696
• Parties: H. E. Rentfrow et al. v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

156 S.W.2d 700

348 Mo. 970

H. E. Rentfrow et al. v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant

No. 37696

Supreme Court of Missouri

December 12, 1941

Appeal from Jasper Circuit Court; Hon. Loyd E. Roberts Special Judge.

Affirmed.

Thos J. Cole and McReynolds & Flanigan for appellant.

(1) The trial court erred in submitting to the jury, by instructions 2, 3, 4, 5 and 8, the question of contributory negligence on the part of Robert Rentfrow when he was guilty of the same as a matter of law. Monroe v. C. & A. Ry. Co., 249 S.W 644; Burge v. Wabash Railroad Co., 244 Mo. 76; Scott v. Kurn, 126 S.W.2d 185; Hayden v. M.-K.-T. Ry. Co., 124 Mo. 566. (2) The trial court erred in giving plaintiffs' Instruction 6, which authorized the jury to excuse Rentfrow's failure to extricate himself from his peril if he believed that he was confronted with a sudden emergency while, in order to recover under the humanitarian doctrine under Instruction 1, Renfrow would have to be oblivious to his danger and, therefore, unaware of any emergency. (3) The trial court erred in giving plaintiffs' Instruction 9, which instructed the jury that Rentfrow had a right to presume that no train would be operated along the tracks of defendant at a rate of speed in excess of the ordinance limit. Reeves, Admr. v. Kansas City, St. L. & C. Railroad Co., 251 Mo. 169; Dove v. Atchison, T. & S. F. Ry. Co., 140 S.W.2d 715. (4) The trial court erred in refusing to give defendant's requested instructions D and E, which sought to withdraw from the consideration of the jury the alleged negligence of the defendant in failing to have a watchman or signaling device at the crossing. Bruce v. United Rys. Co. of St. Louis, 163 S.W. 548; Hafner v. Transit Co., 197 Mo. 201; Hornstein v. Railway, 195 Mo. 455; Sanguinette v. Railroad, 196 Mo. 466; Schmidt v. Railway, 191 Mo. 215; Stotler v. Railroad, 204 Mo. 619; Walker v. Railroad, 193 Mo. 479; Payne v. Railroad, 136 Mo. 562; Giardina v. Railroad, 185 Mo. 334. (5) The trial court erred in refusing to give defendant's requested instructions F, G and H, which sought to withdraw from the consideration of the jury the primary negligence of defendant in operating the train at a high and dangerous rate of speed. Bruce v. United Rys. Co. of St. Louis, 163 S.W. 548; Hafner v. Transit Co., 197 Mo. 201; Hornstein v. Railway, 195 Mo. 455; Sanguinette v. Railroad, 196 Mo. 466; Schmidt v. Railway, 191 Mo. 215; Stotler v. Railroad, 204 Mo. 619; Walker v. Railroad, 193 Mo. 479; Payne v. Railroad, 136 Mo. 562; Giardina v. Railroad, 185 Mo. 334. (6) The trial court erred in refusing to give defendant's requested Instruction K, which sought to confine the issues to the humanitarian rule. Bruce v. United Rys. Co. of St. Louis, 163 S.W. 548; Hafner v. Transit Co., 197 Mo. 201; Hornstein v. Railway, 195 Mo. 455; Sanguinette v. Railroad, 196 Mo. 466; Schmidt v. Railway, 191 Mo. 215; Stotler v. Railroad, 204 Mo. 619; Walker v. Railroad, 193 Mo. 479; Payne v. Railroad, 136 Mo. 562; Giardina v. Railroad, 185 Mo. 334. (7) The trial court erred in permitting plaintiffs' witnesses to testify as to the condition of the crossing where the action was based solely on the penalty section of the statute and there had been no showing of pecuniary loss to the plaintiffs. Secs. 3262, 3264, R. S. 1929. (8) The trial court erred in refusing to sustain the demurrer to the evidence. Stanton v. Jones, 59 S.W.2d 648.

Kelsey Norman, Henry Warten and Alfred K. Lee for respondents.

(1) There are no authorities to support appellant's points I & II. (2) Rentfrow had a right to presume that no train would be operated along the tracks approaching the crossing at a greater rate of speed than fifteen miles per hour, the ordinance limit in the City of Joplin. Hutchinson v. Mo. Pac. Ry. Co., 61 S.W. 635. (3) The appellants cannot complain of any misjoinder. Jordan v. St. Louis Transit Co., 101 S.W. 11, 202 Mo. 418; Day v. M., K. & T. Ry. Co., 112 S.W. 1019; Stookey v. St. Louis-S. F. Ry. Co., 236 S.W. 426.

OPINION

Hays, J.

The respondents H. E. Rentfrow and Anna C. Rentfrow, his wife, father and mother of Robert E. Rentfrow, deceased, an unmarried minor, filed the present action in the Circuit Court of Jasper County against Guy A. Thompson, trustee in bankruptcy of the Missouri Pacific Railroad Company, to recover the penalty provided for by Section 3652, R. S. Mo. 1939 (Sec. 3262, Mo. Stat. Ann., p. 3353) for the death of their son which they allege was caused by the negligence of defendant's agents and servants. From a verdict and judgment in favor of the plaintiffs the defendant appealed.

The plaintiffs' petition relies upon the humanitarian doctrine and also upon primary negligence. The primary negligence alleged consisted (1) in the violation of an ordinance of the City of Joplin, within the corporate limits of which the fatal accident took place, which ordinance limited the speed of trains to fifteen miles per hour; (2) the failure to give proper warning of the approach of the train; and (3) the failure to maintain a watchman or automatic signal device at the crossing. The answer, in addition to denying the allegations of the petition, pleads contributory negligence of the deceased in that he drove upon the grade crossing here involved without looking and listening and thereby failed to learn of the approach and proximity of the train. The case was submitted to the jury on both humanitarian and primary negligence.

The accident here involved took place at a grade crossing in the City of Joplin at which Central Avenue, a public street, passes over the defendant's track. Central Avenue runs east and west. The railroad track describes an are but at the exact point of the crossing runs in a more or less north and south direction. Deceased, a WPA worker, was driving his truck along Central Avenue from a point west of the crossing toward a destination lying east thereof. He was struck and killed by a passenger train which approached the crossing from the south going north.

As to the exact facts of the accident the evidence is sharply in conflict. Plaintiffs' evidence tends to show that the deceased drove up to and upon the railroad track and when the front wheels of his truck had crossed the west rail his motor stalled. He attempted to get started again but was actually standing on the track trying to start for a period estimated to be from twelve to fifteen seconds. Defendant's train, approaching from the south, had whistled some blocks away for another crossing, but did not again whistle until the engine was within fifty or sixty feet of the stalled truck.

Defendant's evidence, on the contrary, tends to show that the deceased ran up to the track, killed his engine and then allowed the car to coast back five or six feet, which brought him clear of the overhang of the engine's pilot. He then started up again and ran onto the track immediately in front of the train. Defendant's witnesses testified that the engine bell was ringing constantly and that the engineer started to blow his whistle for the Central Avenue crossing about a quarter of a mile to the south thereof and continued to whistle until after the collision.

There is also a conflict in the evidence as to the visibility of the track toward the south from the crossing. As stated, the track describes an arc on the inside of which to the east there is a considerable hill. West of the track there is a small embankment which, from the photographs introduced in evidence, appears to only partially hide an approaching train. Still further west and on the south side of Central Avenue there is a house with outbuildings. Between the house and the embankment there is a point from which one driving along Central Avenue can see down the track for some distance. The driver again gets a view of the track after passing the embankment and reaching a point about twenty-five feet or more west of the track. Plaintiffs' evidence tends to show that within this last mentioned space of twenty-five feet the view of the track to the south is limited to from four hundred to six hundred feet. The weight of the evidence for plaintiffs is that the track is visible for five hundred feet. On the contrary defendant's evidence tends to show that the track is visible for a much greater distance to the south.

It is admitted that the accident took place within the corporate limits of the City of Joplin and that there was then and there in full force and effect an ordinance of said city, known as Section 1477 of its municipal code, which forbids any railroad train to be operated at a speed greater than fifteen miles per hour.

Plaintiffs' witnesses placed the speed of defendant's train at from forty to sixty miles per hour. Certain of defendant's witnesses testified that the train was moving forty miles per hour, but the engineer placed its speed at from thirty-five to forty miles per hour.

Defendant sought instructions withdrawing the issue of primary negligence from the jury and also, at the close of plaintiffs' case and again at the close of all of the evidence, requested a directed verdict.

The appellant complains of the submission of the case under the charge of primary negligence. As the basis for this contention he contends that the evidence disclosed the fact that deceased was guilty of contributory negligence as a matter of law in failing to stop, look and listen for the approaching train. Contributory negligence, of course, is ordinarily a matter of defense. It must be specifically pleaded by the defendant and the burden of proving it rests upon the defendant. [Todd v. St. Louis-San Francisco Railway Co. (Mo.), 37 S.W.2d 557.] But it is also true that where the plaintiff's own...