Rischeck v. Lowden

• Citation: 147 S.W.2d 650,347 Mo. 426
• Decision Date: 14 February 1941
• Docket Number: 37144
• Parties: Herman Rischeck v. Frank O. Lowden, James E. Gorman and Joseph B. Fleming, Trustees of Chicago, Rock Island & Pacific Railway Company, a Corporation, and Elmer Brittingham and Walter Reed, Appellants
• Court: United States State Supreme Court of Missouri

147 S.W.2d 650

347 Mo. 426

Herman Rischeck v. Frank O. Lowden, James E. Gorman and Joseph B. Fleming, Trustees of Chicago, Rock Island & Pacific Railway Company, a Corporation, and Elmer Brittingham and Walter Reed, Appellants

No. 37144

Supreme Court of Missouri

February 14, 1941

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Reversed.

Sullivan Reeder, Finley & Gaines and Hogsett, Murray, Trippe Depping & Houts for appellants.

(1) The court erred in refusing to give the several separate peremptory instructions directing verdict for defendant trustees, defendant Brittingham and defendant Reed respectively, requested by the trustees, Brittingham and Reed, respectively, at the close of all the evidence. The court erred in refusing each and all of said peremptory instructions and in not directing verdict for each and all of the defendants. (a) Under plaintiff's evidence, all the evidence and the physical facts plaintiff was guilty of contributory negligence as a matter of law and as a matter of law not entitled to recover against any of the defendants upon the ground of recovery relied upon by plaintiff. Mullen v. Lowden, 344 Mo. 40, 124 S.W.2d 1153; Karr v. C., R. I. & P. Ry., 341 Mo. 536, 108 S.W.2d 48; Bello v. Stuever, 44 S.W.2d 619; Hughes v. Miss. River & B. T. Railroad, 309 Mo. 560, 274 S.W. 703; Iman v. Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477; Hardcastle v. Pullman Co., 320 Mo. 1239, 10 S.W.2d 933; Sissel v. Railroad Co., 214 Mo. 515, 113 S.W. 1104; Kelsay v. Mo. Pac. Ry., 129 Mo. 372, 30 S.W. 339; Poague v. Kurn, 140 S.W.2d 16; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 187; Laws, 1911, p. 330; Sec. 7775, R. S. 1929; Monroe v. C. & A. Railroad, 297 Mo. 653, 249 S.W. 644, 257 S.W. 469; State ex rel. Kansas City So. v. Shain, 340 Mo. 1195, 105 S.W.2d 919; Herring v. Franklin, 339 Mo. 571, 98 S.W.2d 619; Willhauck v. C., R. I. & P. Ry. Co., 332 Mo. 1165, 61 S.W.2d 336; Alexander v. Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023; Evans v. Ill. Central, 289 Mo. 493, 233 S.W. 397; State ex rel. Hines v. Bland, 237 S.W. 1018; Burge v. Railroad Co., 244 Mo. 94, 148 S.W. 925; Messe v. Thompson, 129 S.W.2d 850; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 10; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 603; Bollinger v. St. L.-S. F. Ry. Co., 334 Mo. 720, 67 S.W.2d 985; Pentecost v. St. L., M. B. T. Ry. Co., 334 Mo. 572, 66 S.W.2d 533; State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W.2d 864; Carner v. St. L.-S. F. Ry., 338 Mo. 257, 89 S.W.2d 952. (b) The peremptory instruction of defendant Reed, the fireman, should have been given for the additional reason that there was no evidence that he had means at hand or owed any duty to sound a signal or warning. Chawkley v. Wabash, 317 Mo. 782, 297 S.W. 27. (2) The court erred in giving plaintiff's Instruction 1. (a) The court committed error against all of the defendants in giving the instruction because plaintiff was guilty of contributory negligence as a matter of law under his own evidence, all the evidence and the physical facts, and not entitled to go to the jury on the theory of negligent failure to sound a signal or warning submitted as ground for recovery. Poague v. Kurn, 140 S.W.2d 16; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185; Herring v. Franklin, 339 Mo. 571, 98 S.W.2d 622; State ex rel. Kansas City So. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Willhauck v. C., R. I. & P. Ry. Co., 332 Mo. 1165, 61 S.W.2d 336; Alexander v. Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023; Evans v. Ill. Central, 289 Mo. 493, 233 S.W. 397; Monroe v. C. & A. Ry. Co., 297 Mo. 633, 257 S.W. 469; State ex rel. Hines v. Bland, 237 S.W. 1018; Burge v. Railroad Co., 244 Mo. 94, 148 S.W. 925; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 362, 30 S.W. 339. (b) The instruction was erroneous for the additional reason that it authorized a recovery for the failure to give or sound a warning or signal without requiring the jury to find that no signal or warning was sounded or given and although the petition charged that defendants failed to sound or give any signal or warning. Blackwell v. Railroad Co., 331 Mo. 34, 52 S.W.2d 816; Sec. 4756, R. S. 1929; Moyer v. Ry. Co., 190 S.W. 839; Daniel v. Prior, 227 S.W. 102; Lynch v. Railroad Co., 333 Mo. 89, 61 S.W.2d 923. (c) The instruction was erroneous as to engineer Brittingham and fireman Reed for the further reason that it permitted the jury to find a verdict against them as for failure by them to sound the statutory crossing signal, although they owed plaintiff no duty under the statute. Sec. 4756, R. S. 1929; Hoelzel v. C., R. I. & P. Ry., 337 Mo. 61, 85 S.W.2d 130; Lynch v. M.-K.-T. Railroad, 333 Mo. 89, 61 S.W.2d 924; Lakey v. Ry. Co., 288 Mo. 147; Sevedge v. Railroad Co., 331 Mo. 312, 53 S.W.2d 287.

Mark D. Eagleton and Atwood & Atwood for respondent.

(1) The trial court properly refused each and all of defendants' requested peremptory instructions. (a) On the whole record there was substantial evidence that defendants were negligent in the manner pleaded and submitted and the case made was clearly submissible on this issue. Willhauck v. Ry. Co., 61 S.W.2d 338, 332 Mo. 1165; Mosely v. Sum, 130 S.W.2d 466, 344 Mo. 969. (b) Plaintiff was not guilty of contributory negligence as a matter of law and was entitled to recover against all of the defendants upon the ground of negligence submitted. Weller v. Ry. Co., 23 S.W. 1065, 120 Mo. 651; Baker v. Ry. Co., 26 S.W. 22, 122 Mo. 544; Willhauck v. Ry. Co., 61 S.W.2d 338, 332 Mo. 1165; Poehler v. Lonsdale, 129 S.W.2d 66; Mosely v. Sum, 130 S.W.2d 466, 344 Mo. 969; Hill v. Kansas City Rys. Co., 233 S.W. 208; Kenney v. Railroad Co., 105 Mo. 270, 15 S.W. 983; Gorman v. Franklin, 117 S.W.2d 294. (c) The peremptory instruction of defendant Reed, the fireman, was properly denied. Larey v. Ry. Co., 64 S.W.2d 684; Christianson v. St. Louis Pub. Serv. Co., 62 S.W.2d 833. (2) The court did not err in giving Instruction 1. (a) Plaintiff was not guilty of contributory negligence as a matter of law and was entitled to go to the jury on the theory of defendants' negligent failure to sound or to give a signal or warning. (b) Instruction 1 did not broaden the issue under the petition or require the sounding of both bell and whistle, and it was properly given. (c) Plaintiff's case was pleaded and submitted on the theory of common-law negligence and Instruction 1 was not erroneous as to defendant engineer and defendant fireman. (3) The verdict of $ 9000 was not excessive. Brady v. Terminal Railroad Assn., 127 S.W.2d 6; Donley v. Hamm, 98 S.W.2d 966; Baumgardner v. St. Louis Pub. Serv. Co., 240 Mo. 521, 102 S.W.2d 600.

OPINION

Douglas, J.

Plaintiff was injured when the small truck which he was driving was struck by one of defendants' trains. He recovered judgment for $ 9000 for the primary negligence of defendants in failing to warn of the train's approach.

The chief question for decision is whether plaintiff was guilty of contributory negligence as a matter of law so as to preclude any recovery on his part. It has become axiomatic, in determining this question, that the evidence for plaintiff must be accepted as true and plaintiff must be allowed the benefit of every reasonable inference in his favor that may be drawn from all the evidence without any regard of defendants' contrary evidence.

With this rule in mind we find from the record that in December 1937, plaintiff was driving his small truck northwardly on Lackland Road, a fifteen-foot gravel road in St. Louis County. He lived in the neighborhood and for years he had traversed this road. He was approaching the grade crossing where defendants' railroad, running east and west, crosses Lackland Road when he noticed a neighbor's automobile in a small ditch where it had slid from the road. This automobile was in charge of two brothers named Jung. Plaintiff stopped his truck on the road about seventy-five feet south of the railroad crossing. He got out and helped the Jung boys get their automobile back on the road. As he returned to his truck he looked to the east to see if there was any smoke from an approaching train, but saw none. Then he got into his truck, into the small cab which encloses the driver's seat, and slowly resumed his journey northward. When he had traveled about sixty feet and the front of his truck had reached a point about twelve or fifteen feet south of the south rail of the track he came to a full stop. The cab of his truck is seven feet to the rear so that he was then 19 to 22 feet south of the south rail. He was entirely familiar with the crossing and had been over it daily for a period of years. He was also familiar with the train schedule in relation to the crossing. The surrounding country was open, farming country. He looked first to the west and could see along the track in that direction for about 1000 to 1500 feet, probably farther. Then he looked to the east. The track immediately east of the road was laid through a cut. His view in that direction was obstructed by an embankment which was just east of the road and south of the track so that from where he was stopped he could see the track for a distance of only about 350 to 375 feet. After stopping for four or five seconds he started up slowly. As he did he looked ahead along the road where he could see a distance of 1500 feet to the top of a hill, then he looked to the west again and lastly looked to the east and saw the train coming. At that time the front of his truck was past the north rail and the cab was about above it. The train was fifty to seventy-five feet to the east of him coming sixty miles an hour. He attempted to speed up but the right rear of his truck was struck by the locomotive. His brakes were in good condition and he had experienced no trouble in managing or...