Rose v. Thompson
| Decision Date | 28 June 1940 |
| Docket Number | 36304 |
| Parties | Wilson Rose, a Minor, by Floyd T. Rose, his next friend, v. Guy A. Thompson, Trustee in Bankruptey for the Missouri Pacific Railroad Company, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. Peter T Barrett, Judge.
Reversed and remanded (with directions).
D I. Ragsdale and Thomas J. Cole for appellant.
(1) The court erred in sustaining the motion for new trial. (a) The verdict was not against the weight of the evidence and the court's action in sustaining the motion was arbitrary and unreasonable. Castorina v. Herrmann, 104 S.W.2d 300; Borack v. Mosler Safe Co., 231 S.W. 624; Payne v. Reed, 59 S.W.2d 44; State ex rel. Atchison, etc Ry. Co. v. Ellison, 268 Mo. 232; Gottschalk v. Wells, 274 S.W. 401. (b) The court erred in holding that it committed error in giving Instruction 8 which merely submitted the question of whether or not plaintiff and his driver's sole negligence caused the injury. The instruction was proper. Schweig v. Wells, 26 S.W.2d 851; Peppers v. St. L.-S. F. Ry. Co., 295 S.W. 757; Smith v. St. L.-S. F. Ry. Co., 9 S.W.2d 929. (c) The court erred in holding that it committed error in giving Instruction 9 which merely declared the law that motor vehicle drivers are required to exercise the highest degree of care. Sec. 7775, R. S. 1929. (d) The court committed error in holding that it erred in giving Instruction 10, which told the jury that plaintiff, though a guest, still was required to exercise ordinary care for his own safety. Schweig v. Wells, 26 S.W.2d 851.
Richard T. Brownrigg and Charles P. Muldoon for respondent; William H. Tombrink of counsel.
(1) The trial court committed no error in sustaining the plaintiff's motion for a new trial. (a) The trial court has a wide and sound discretion in the granting of new trials. Gottschalk v. Wells, 274 S.W. 399; Alexander v. St. L.-S. F. Ry. Co., 38 S.W.2d 1023, 327 Mo. 1012. (b) The respondent (plaintiff) must be given the benefit of the most favorable inferences arising from the most favorable testimony in the case in determining whether the trial court properly sustained the plaintiff's motion for a new trial. Alexander v. St. L.-S. F. Ry. Co., 38 S.W.2d 1023, 327 Mo. 1012. (2) The court committed no error in granting the plaintiff's motion for a new trial because of the giving of Instructions 8, 9 and 10 offered by the defendant and given by the court.
Dalton, C. Hyde and Bradley, CC., concur.
This is an action for $ 25,000 damages on account of severe personal injuries suffered by plaintiff when the stalled automobile in which he was seated was struck by one of defendant's trains. After a jury returned a verdict for defendant, plaintiff moved for a new trial, the motion was sustained, and defendant appealed.
The petition alleged that plaintiff "was a passenger in and was seated in an automobile which was standing stalled on one of the tracks of the defendant at the intersection of said track with Geyer Road" in Kirkwood, Missouri, and that the automobile was struck by defendant's train, and plaintiff injured. The negligence charged was (1) failure to give the statutory signals to warn plaintiff of the approach of the train in time for him to get out of said automobile and reach a place of safety before the engine struck the automobile; and (2) negligence under the humanitarian doctrine (a) in failing to give a timely warning of the approach of the train and (b) in failing to check the speed of the train, "when by doing said things they could have avoided striking the automobile before plaintiff could reach a place of safety which he could have done but for defendant's said negligence and could have prevented plaintiff from being injured." The answer was a general denial and a plea of contributory negligence.
The cause was submitted upon primary negligence and upon negligence under the humanitarian doctrine, as above stated, and a verdict returned for defendant. The motion for a new trial was sustained by the court (1) upon the first specification of the motion, to-wit; "Because the verdict is against the evidence and the weight of the evidence and the law under the evidence, and was the result of bias and prejudice on the part of the jury," and (2) because of error in the giving of instructions 8, 9, and 10 requested by defendant.
Appellant assigns error upon the court's action in sustaining the motion for a new trial. Appellant contends that the demurrer to the evidence at the close of the whole case should have been sustained and, therefore, that the court may not grant a new trial on the ground that the verdict is against the weight of the evidence; that the negligence, if any, of defendant was not the proximate cause of plaintiff's injuries; that the verdict was not against the weight of the evidence; that the court abused its discretion in granting the motion on said ground; and that the said instructions correctly declare the law.
A statement of the evidence is required. For convenience we shall refer to the parties as plaintiff and defendant. Plaintiff was employed in construction work at a place about two miles north of the point where defendant's east and west tracks cross Geyer Road in the City of Kirkwood, Missouri. He quit work about 2 P. M. July 7, 1936, and secured a ride in the direction of his home in an automobile owned and operated by a fellow workman, one Polys. The automobile was a 1930 model A Ford roadster. Polys sat on the left, driving; plaintiff sat on the right; and one Lawler in the center. They entered Geyer Road six or eight blocks north of defendant's crossing and drove south.
Plaintiff and Polys were both familiar with the crossing in question and knew they were approaching it. Plaintiff had crossed this crossing twice a day for some five or six weeks. On this occasion he was tired and was resting his head in his hands. He was not looking in any direction; he wasn't paying any attention, and didn't know just where he was. As the automobile approached defendant's crossing, Polys was driving 10 to 15 miles per hour. When Polys was 400 to 700 feet north of the crossing, he saw defendant's train 600 to 700 feet from Geyer Road, as it approached the crossing from the east. It was a long train (defendant's evidence showed 80 to 85 cars), and was traveling The flashing light signals at the crossing were operating. He heard a bell, which he said was in the flashing light signals, and which he testified he knew meant that the train was coming (other witnesses for plaintiff and witnesses for defendant testified that there was no bell in the flashing light signals). He brought his car to a dead stop in the shade of some trees, less than 50 feet back from the tracks at a sign reading, The train was then 400 to 500 feet away and he could see it plainly. Lawler had also seen the train as it approached "a good block to the east." Polys then started his car and attempted to cross in front of the train. He said he thought the train was going to stop, it seemed like the steam was shut off, and he wanted to get home. As he started over the crossing in front of the train, the engine of his automobile stalled. He tried two or three times to pull the automobile across with the starter, but could not. The automobile coasted to a stop against the south rail of the track, and as it did so, he shouted to the others to jump, saying, "She is going to get us." When the automobile stalled on the track, according to Polys, plaintiff's only witness on the matter, the engine of the train was perhaps 200 feet away, it might have been 50 or 100 feet, or 100 to 200 feet, but pretty close. It was 50 to 100 feet away when Polys attempted to leave the car.
The crossing was a little rough, and when the automobile hit the rails, it was "bouncy," and plaintiff looked up and knew that he was on the tracks. Plaintiff testified that when he looked up the engine had stalled and the automobile was coasting; that "the rails stopped it;" that after the car stalled Polys told them to get out "a train was coming;" and that he had not heard the train until Polys said to get out.
As the men started to get out of the automobile, the doors on each side jammed. Polys got up in the seat of the automobile, and as the train hit, he jumped out over the door and on to "the cow-catcher" or pilot of the engine. He then walked back on the running board on the fireman's side of the engine. As he started to go in the window of the cab, he felt the brakes taking hold, and the train began to slow down. The front end of the engine was 200 to 300 feet west of the west line of Geyer Road when the train was brought to a stop, and the engine moved 250 to 300 feet while he was on it.
While Polys was trying to get out on the left side of the automobile, plaintiff and Lawler were trying to get out of the right door. The door jammed and could not be opened. Plaintiff then pulled back the lever, and Lawler kicked the door open with his foot, and got out ahead of plaintiff. Plaintiff said that he stayed back to let Lawler out. Before plaintiff could jump the crash occurred. The engine struck the automobile between the left door and left rear wheel and carried it, and pushed it west, on the pilot of the engine.
Polys received a bump on the head, a skull cut, a sprained elbow and had to be put to bed later. Four stitches were taken in his head. He was laid up a couple of weeks. Lawler suffered shock, a strained back, and was laid up a week from his work. Plaintiff in some manner rolled or fell under the train and was more severely injured. He...
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