Rinderknecht v. Thompson

• Decision Date: 11 April 1949
• Docket Number: No. 41040.,41040.
• Citation: 220 S.W.2d 69
• Parties: JOHN RINDERKNECHT, Respondent, v. GUY A. THOMPSON, Trustee and Receiver for the MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

220 S.W.2d 69

JOHN RINDERKNECHT, Respondent, v. GUY A. THOMPSON, Trustee and Receiver for the MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.

No. 41040.

Supreme Court of Missouri.

Division Two, April 11, 1949.

Motion for Rehearing or to Transfer to Banc Overruled, May 9, 1949.

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

AFFIRMED (subject to remittitur).

Thomas J. Cole and Ragland, Otto, Potter & Embry for appellant.

(1) The petition is bottomed solely on the alleged failure of the crossing signal to operate. Such an allegation states no cause of action, absent an allegation of knowledge on appellant's part or an allegation that the signal had been out of operating condition long enough to charge appellant with knowledge of the condition. Hatten v. C.B. & Q.R. Co., 233 S.W. 281; Monsour v. Excelsior Tobacco Co., 115 S.W. (2d) 219; Henn v. L.I.R. Co., 65 N.Y.S. 21; Bachman v. Quincy & K.C.R. Co., 310 Mo. 48, 274 S.W. 764; 45 C.J., p. 660, sec. 28; 44 Am. Jur., p. 766, sec. 522. (2) The petition, in necessary effect, pleads reliance by respondent solely on the crossing signal to warn him of approaching trains. A motorists approaching a railroad track cannot, in the exercise of the highest degree of care, rely solely on a signal device. Jurgens v. Thompson, 350 Mo. 914, 169 S.W. (2d) 353; Moeller v. Mo. Pac. R. Co., 272 S.W. 990; Herring v. Franklin, 339 Mo. 571, 98 S.W. (2d) 619; Mullis v. Thompson, 213 S.W. (2d) 941; Rhineberger v. Thompson, 202 S.W. (2d) 64; Wren v. C.B. & Q.R. Co., 44 S.W. (2d) 241; Scott v. Kurn, 343 Mo. 1210, 126 S.W. (2d) 185; Wabash R. Co. v. Huelsmann, 290 Fed. 165; Schaub v. K.C. Southern R. Co., 133 Mo. App. 444; Swigert v. Lusk, 196 Mo. App. 471, 192 S.W. 138. (3) Evidence that the signal failed to function at the time of the collision, absent (as here) anything as to why it did not function, if it did not, does not constitute proof of any negligence on appellant's part and does not justify submission of an issue of negligence. Startup v. Pac. Electric Ry. Co., 171 P. (2d) 107; Kingsbury v. Boston & M.R.R., 106 Atl. 642; Vaca v. Southern Pac. Co., 267 P. 346; 44 Am. Jur., p. 766, sec. 522. (4) And, there is no submissible case, on a charge of failure of a signal to function, absent (as here) evidence of knowledge on appellant's part or evidence that the same was out of repair long enough, before the collision, to impute knowledge to appellant. 45 C.J., p. 660, sec. 28; Henn v. L.I.R. Co., 65 N.Y.S. 21; Hatten v. C.B. & Q.R. Co, 233 S.W. 281; Monsour v. Excelsior Tobacco Co., 115 S.W. (2d) 219; Robinson v. Great Atl. & Pac. Tea Co., 347 Mo. 421, 147 S.W. (2d) 648. (5) Even if the evidence had shown a case otherwise submissible, respondent's own evidence shows that he was guilty of contributory negligence as a matter of law. Respondent's testimony was that he relied solely on the crossing signal to warn him of the approach of a train. That he had no right to do in the exercise of the highest degree of care. See cases cited under Point (2). (6) Respondent's testimony that he relied solely on the signal robs any other statement that he made, as to reliance on anything other than the signal of any probative force. Steele v. K.C. Southern R. Co., 265 Mo. 97; Stevens v. Thompson, 175 S.W. (2d) 166. (7) Respondent was under the duty to look for the train. Jurgens v. Thompson, 350 Mo. 914, 169 S.W. (2d) 353. (8) Whether he failed to look or failed to see what was plainly visible, he was guilty of negligence as a matter of law. Jurgens v. Thompson, supra; State ex rel. K.C. Southern R. Co. v. Shain, 340 Mo. 1195, 105 S.W. (2d) 915; Dempsey v. Horton, 337 Mo. 379, 84 S.W. (2d) 621. (9) Or, he must have been negligent, as a matter of law, in approaching the track at such a speed, or with such lack of control, that he could not stop on the appearance of danger. Jurgens v. Thompson, 350 Mo. 914, 169 S.W. (2d) 353. (10) The trial court erred in giving Instruction 1 requested by the respondent because the evidence was not sufficient to make a submissible case and, therefore, there was not sufficient evidence on which to base, or to justify, the giving of the instruction. (11) Said instruction is repetitious, argumentative and confusing. Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W. (2d) 593; McGrory v. Thurnan, 84 S.W. (2d) 147. (12) Said instruction is broader than the petition and also unsupported by the evidence in that, in the second paragraph, it submits the question of the crossing signal being out of order, prior to the collision, long enough for appellant to know of it and to provide another warning in lieu thereof. That constitutes submission of an issue of negligence different from, and independent of, a charge of negligent failure to maintain the signal and keep it in repair. Dehn v. Thompson, 181 S.W. (2d) 171. (13) There is no such charge of negligence in the petition, and there is no evidence in the record on which to base submission of that issue. The instruction, in that particular is, therefore, broader than the petition, outside of the pleaded issues, and not supported by the evidence. An instruction must be supported by both the pleadings and the evidence. State ex rel. Anderson v. Hostetter, 346 Mo. 249, 140 S.W. (2d) 21; Rishel v. Kansas City Pub. Serv. Co., 129 S.W. (2d) 851; Grosvenor v. New York Cent. R. Co., 343 Mo. 611, 123 S.W. (2d) 173; State ex rel. Spears v. McCullen, 210 S.W. (2d) 68. (14) Said instruction, in the concluding part of the second paragraph thereof, clearly authorized a recovery simply on a finding of failure of the crossing signal to operate, even though the respondent relied solely on that signal. The respondent, in the exercise of the highest degree of care, could not rely solely on the signal. Mullis v. Thompson, 213 S.W. (2d) 941; Rhineberger v. Thompson, 202 S.W. (2d) 64; Jurgens v. Thompson, 350 Mo. 914, 169 S.W. (2d) 353; Swigart v. Lusk, 196 Mo. App. 471, 192 S.W. 138; Wabash Ry. Co. v. Huelsmann, 290 Fed. 165; Wren v. C.B. & Q. Ry., 44 S.W. (2d) 241; Scott v. Kurn, 343 Mo. 1210, 126 S.W. (2d) 185. (15) There could be no recovery simply on the charge of failure of the signal light to function, absent (as here) evidence of knowledge on appellant's part, or evidence that the same had been out of repair long enough, before the collision, to impute knowledge to the appellant. 45 C.J., p. 660, sec. 28; Henn v. L.I.R. Co., 65 N.Y.S. 21; Hatten v. C.B. & Q., 233 S.W. 281; Monsour v. Excelsior Tobacco Co., 115 S.W. (2d) 219; Robinson v. Great Atlantic & Pac. Tea Co., 347 Mo. 421, 147 S.W. (2d) 648. (16) There was no evidence that the alleged failure of the crossing signal to function was due to any negligence on appellant's part. Startup v. Pac. Electric Ry. Co., 171 P. (2d) 107; Kingsbury v. Boston & M.R.R., 106 Atl. 642; Vaca v. Southern Pac. Co., 267 P. 346; 44 Am. Jur., p. 776, sec. 522. (17) Said instruction, in the first paragraph, by stating that it was appellant's duty to use reasonable care to properly maintain said signal so that it would "duly" warn plaintiff, made appellant a guarantor that the signal would warn the respondent. No issue of negligent failure to warn plaintiff other than by the crossing signal was tendered in this case. The appellant was under no duty to install the crossing signal. Homan v. Mo. Pac. R. Co., 334 Mo. 61, 64 S.W. (2d) 617. (18) And, having done so, its duty was not to guarantee that it would "duly" or absolutely warn respondent, but simply to use ordinary care to keep it in repair. Bachman v. Quincy, O. & K.C.R. Co., 274 S.W. 764. (19) The trial court erred in giving Instruction 10 requested by respondent, because said instruction submitted, as an element of damage, the question of future losses by reason of loss of earning capacity, although no such element of damage was pleaded. Nothing complained of by respondent would necessarily result in future loss of earnings capacity. Any damages which, although a natural, are not the necessary result of an injury complained of, are special damages and must be pleaded. State ex rel. Grisham v. Allen, 344 Mo. 66, 124 S.W. (2d) 1080; Weller v. Hayes Truck Lines, 197 S.W. (2d) 657; Civil Code of Missouri, sec. 52. (20) There was no evidence on which to base a submission of future losses because of impaired earning capacity. The instruction was erroneous, in said particular, as not being supported by both the pleadings and the evidence. See Authorities cited under Point (13). (21) The verdict was excessive. Scheidegger v. Thompson, 174 S.W. (2d) 216.

Vincent M. Flynn, Charles E. Gray and Chelsea O. Inman for respondent.

(1) The petition states a claim upon which relief can be granted. Berberet v. Electric Park Amusement Co., 319 Mo. 275, 3 S.W. (2d) 1025, 61 A.L.R. 1269; Crane v. Mo. Pac. R. Co., 87 Mo. 588; Fassbinder v. Mo. Pac. R. Co., 126 Mo. App. 563, 104 S.W. 1154; Messing v. Judge & Dolph Drug Co., 322 Mo. 901, 18 S.W. (2d) 408; Johnson v. Mo. Pac. R. Co., 96 Mo. 340, 9 S.W. 790. (2) Conceding arguendo that the petition is defective as alleged, since the appellant did not take advantage of the same by motion to dismiss for failure to state a cause of action, and permitted evidence to go in, without objection, showing that appellant knew or in the exercise of ordinary care, should have known that the crossing signal mentioned would not operate at the time in question, the defect was cured by the verdict and judgment, and the petition is taken as amended to conform to the proof, and the appellant cannot now be heard to complain. R.S. 1939, sec. 1265; Winn v. Kansas City Belt R. Co., 245 Mo. 406, 151 S.W. 98; Weber v. Terminal R. Assn. of St. Louis, 20 S.W. (2d) 601; Shimmin v. C. & S. Mining Co., 187 S.W. 76; Simpson v. Wells, 292 Mo. 301, 237 S.W. 520; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671. (3) The petition pleads that the respondent was accustomed to relying on appellant's said custom of so...