Rhineberger v. Thompson

• Decision Date: 12 May 1947
• Docket Number: 39822
• Citation: 202 S.W.2d 64,356 Mo. 520
• Parties: Harry Rhineberger v. Guy A. Thompson, as Trustee and Receiver of the Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

202 S.W.2d 64

356 Mo. 520

Harry Rhineberger v. Guy A. Thompson, as Trustee and Receiver of the Missouri Pacific Railroad Company, a Corporation, Appellant

No. 39822

Supreme Court of Missouri

May 12, 1947

Appeal from Circuit Court of City of St. Louis; Hon. Edward M Ruddy, Judge.

Affirmed.

Thomas J. Cole, Oliver L. Salter and John J. Cole for appellant.

(1) The court erred in submitting this case to the jury and in not sustaining defendant's motion for a directed verdict because under the evidence plaintiff was not entitled to recover damages for he was himself guilty of negligence as a matter of law. Rischeck v. Lowden, 347 Mo. 426, 147 S.W.2d 650; Fitzpatrick v. Kansas City Southern Ry Co., 347 Mo. 57, 146 S.W.2d 560; State ex rel. Kansas City Pub. Serv. Co. v. Bland, 188 S.W.2d 650; State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W.2d 46; Burge v. Wabash Railroad Co., 244 Mo. 76, 148 S.W. 925; State ex rel. Kansas City So. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Hook v. Mo. Pac. Ry. Co., 162 Mo. 569, 63 S.W. 360; State ex rel. K.C.P.S.C. v. Bland, 354 Mo. 79; Borrson v. M.-K.-T.R. Co., 172 S.W.2d 826, 315 Mo. 214. (2) The court takes judicial notice of the fact that if plaintiff's testimony otherwise is true the train's vibrations and rumble would have given adequate warning of its presence if he had been in the exercise of the highest degree of care. Borrson v. M.-K.-T.R. Co., 172 S.W.2d 826, 315 Mo. 214; Mamic v. Pittsburgh & W.V. Ry. Co., 19 A. 404; Moore v. Erie Rys. Co., 308 Pa. 573, 162 A. 812; Crossett Lumber Co. v. Cater, 144 S.W.2d 1074. (3) The court erred in refusing to give Instruction B, which sought to submit defendant's pleaded defense of contributory negligence. (4) Instruction one, given for the plaintiff, over defendant's objection and exception, is fatally erroneous in that it clearly assumes that if warning was not given until the train was one hundred feet distant from the crossing such warning would not be "timely". (5) The court erred in admitting over the objection of defendant, incompetent, immaterial and irrelevant evidence offered by plaintiff. (6) The court erred in excluding, upon objection of plaintiff, competent, relevant and material evidence offered by defendant. (7) The verdict is grossly excessive.

Louis E. Miller, A. G. Jannopoulo, R. E. Kleinschmidt and B. Sherman Landau for respondent.

(1) The presence of the public railroad crossing in Silica was of itself a danger signal to the crew operating the train, and they were bound to anticipate the presence of persons at the crossing, to keep a sharp lookout and to give timely warning. McWilliams v. Mo. Pac. Ry. Co., 157 S.W. 1001; Herell v. St. Louis-S.F. Ry. Co., 322 Mo. 551, 18 S.W.2d 481; Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368; Dyer v. Kansas City So. Ry. Co., 223 Mo.App. 1001, 25 S.W.2d 508; Grotjan v. Thompson, 146 S.W.2d 706. (2) The defendant was not relieved of this duty by the mere erection of the electric signal at the crossing. Kentucky & Indiana Terminal R. Co. v. Cantrell, 184 S.W.2d 111. (3) Fulfillment of the requirements of ordinary care on defendant's part is gauged by the conditions existing at the crossing on the occasion in question, including the obstruction of the curved tracks by the forty-foot banks of the cut, the condition of darkness, the unlighted headlight, the inaudibility of an approaching train while in the cut, the nonoperation of the automatic signal, the roughness of the highway crossing and the fact that the train was running behind schedule. Pennsylvania R. Co. v. Moffitt, 1 F.2d 276; Continental Imp. Co. v. Stead, S. Ct., 5 Otto 161; Sec. 5274, R.S. 1939; Berry v. Kansas City Pub. Serv. Co., 341 Mo. 658, 108 S.W.2d 98; Gayle v. Thompson, 167 S.W.2d 954; McGlothin v. Thompson, 347 Mo. 708, 148 S.W.2d 558; Wolf v. New York, C. & St. L.R. Co., 347 Mo. 622, 148 S.W.2d 1032; Hopkins v. Highland Dairy Farms Co., 159 S.W.2d 254; Perkins v. Kansas City So. Ry. Co., 329 Mo. 1190, 40 S.W.2d 103; Sisk v. Chicago, B. & Q.R. Co., 69 S.W.2d 830; Gorman v. St. Louis Merchants Bridge Term. Ry. Co., 325 Mo. 326, 28 S.W.2d 1023. (4) And the same factors are pertinent to a consideration of the claim of alleged contributory negligence. Perkins v. Kansas City So. Ry. Co., 329 Mo. 1190, 40 S.W.2d 103; Sisk v. Chicago, B. & Q.R. Co., 69 S.W.2d 830. (5) It cannot be laid down dogmatically that every person killed or injured at a railway crossing was guilty of contributory negligence, as every crossing accident case must be decided upon its own peculiar facts. Eubank v. Kansas City Term. Ry. Co., 346 Mo. 436, 142 S.W.2d 19; Monroe v. Chicago & A.R. Co., 280 Mo. 483, 219 S.W. 68. (6) This court cannot, contrary to the jury's finding, make a finding of fact that the train's noises were not absorbed and deflected by the topography of the cut or that they were audible to travelers on the highway. (7) The hypotheses of fact included in defendant's requested Instruction B were not supported by record evidence, and the instruction was properly refused by the trial court. (8) Instructions 1 and 2 were properly based upon testimony favorable to plaintiff as he was not conclusively bound by the adverse testimony of one of his witnesses. Hoffman v. Peerless White Lime Co., 317 Mo. 86, 296 S.W. 764; Mooney v. Terminal R. Assn. of St. Louis, 453 Mo. 1080, 186 S.W.2d 450; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47. (9) After a verdict for plaintiff, the evidence must be viewed in the light most favorable to him. Brennecke v. Ganahl Lumber Co., 329 Mo. 341, 44 S.W.2d 627; Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557; Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413; 101 A.L.R. 1190. (10) Instructions 1 and 2 were properly prefaced with the phrase "if you find and believe from the evidence" and contained no assumption of fact required to be found by the jury. Menke v. Rovin, 352 Mo. 826, 180 S.W.2d 24. (11) The instructions properly submitted requisite facts; they would have been erroneous if they had submitted mere abstract generalizations. Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853. (12) Defendant was not restricted in its cross-examination of plaintiff and his witnesses, but on the contrary was given a wide range of latitude to cross-examine plaintiff upon improper, irrelevant and prejudicial matters. (13) The verdict is diminutive in relation to the extent of plaintiff's damages and the present decreased value of the dollar; it is not properly subject to the claim of excessiveness. Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646, 157 A.L.R. 598; Ramey v. Mo. Pac. R. Co., 323 Mo. 662, 21 S.W.2d 873; Whittington v. Westport Hotel Operating Co., 326 Mo. 1117, 33 S.W.2d 963; Gately v. St. Louis-S.F. Ry. Co., 332 Mo. 1, 56 S.W.2d 54; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311; Lankford v. Thompson, 189 S.W.2d 217; Moses v. Kansas City Pub. Serv. Co., 188 S.W.2d 538; Mockowik v. Railroad, 196 Mo. 550, 94 S.W. 256.

OPINION

Van Osdol, C.

Appeal from a judgment for plaintiff for $ 15,000 for personal injuries. Plaintiff was injured when the 1929 Model A Ford Tudor sedan which he was driving and defendant's southbound Sunshine Special train collided at a grade crossing at Silica, Jefferson County. Plaintiff's case was submitted to the jury upon primary negligence, common law and statutory, of defendant in failing to warn of the train's approach.

Defendant-appellant assigns error of the trial court in submitting plaintiff's case to the jury -- defendant-appellant contends that, under the evidence, plaintiff was guilty of contributory negligence as a matter of law. Other errors are assigned in refusing to give defendant's requested Instruction B; in giving Instruction No. 1 proffered by plaintiff; and in rulings upon the admissibility of evidence. Defendant-appellant also contends the amount of the award was grossly excessive.

Defendant had alleged by answer that plaintiff's own negligence was the sole or, at least, a contributing cause of his injury, specifically alleging plaintiff did not exercise the highest degree of care in the operation of his automobile in that he was driving while under the influence of intoxicating liquor; at a highly dangerous and reckless rate of speed; with defective brakes; without stopping, looking or listening for trains; and in failing to stop, swerve or turn his automobile to avoid the collision.

The question of plaintiff's contributory negligence was a jury question unless it should be said as a matter of law that plaintiff, operating a motor vehicle on a public highway, failed to exercise the highest degree of care; that is, such care as would ordinarily be exercised by a very careful person under the same or similar circumstances. In determining whether plaintiff was guilty of contributory negligence as a matter of law, the evidence in plaintiff's favor must be accepted as true and plaintiff must be allowed the benefit of every reasonable inference which can be drawn from all of the evidence. Fitzpatrick v. Kansas City Southern R. Co., 347 Mo. 57, 146 S.W. 2d 560.

At Silica, County Highway A crosses defendant's single-track rail line in an east-west direction, the intersection of the highway and railroad being about at a right angle. County Highway A is surfaced with "black top"; and, when the collision occurred, the highway had been freshly oiled and covered with "chat." Defendant's right-of-way to the northward of the intersection is curved to the westward and defendant's trains, coming southwardly, pass through a deep "cut" the banks of which gradually lessen in height until the earth flattens out at the crossing. The track passes the crossing in a continuation of the curve; and the east rail is higher than the west one, making the crossing somewhat...