Rucker v. Alton R. Co.

• Decision Date: 31 December 1938
• Docket Number: 35516
• Citation: 123 S.W.2d 24,343 Mo. 929
• Parties: Roy O. Rucker, Administrator of the Estate of Alva J. Rucker, Appellant, v. The Alton Railroad Company, a Corporation
• Court: Missouri Supreme Court

123 S.W.2d 24

343 Mo. 929

Roy O. Rucker, Administrator of the Estate of Alva J. Rucker, Appellant, v. The Alton Railroad Company, a Corporation

No. 35516

Supreme Court of Missouri

December 31, 1938

Appeal from Circuit Court of City of St. Louis; Hon. J. Wesley McAfee, Judge.

Reversed and remanded.

C O. Inman for appellant.

(1) Instruction 1, given at the request of the defendant, was erroneous and prejudicial to the plaintiff because it placed the burden of disproving contributory negligence of decedent upon the plaintiff. The burden of proof is a matter affecting the remedy as to which the law of Missouri governs, and hence the burden of establishing contributory negligence of decedent should have been placed upon the defendant. Menard v. Goltra, 40 S.W.2d 1053; Connole v. E St. L. & Sub. Ry. Co., 102 S.W.2d 581; Williams v E. St. L. & Sub. Ry. Co., 100 S.W.2d 51; Manar v. Taetz, 109 S.W.2d 721; Szuch v. Ni Sun Lines, 332 Mo. 476, 58 S.W.2d 473; Clark v. Atchison, etc., Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Brewer v. Silverstein, 64 S.W.2d 291; Raymen v. Galvin, 229 S.W. 747; Barr v. Mo. Pac. Ry. Co., 37 S.W.2d 927; Chaar v. McLoon, 304 Mo. 250, 263 S.W. 177. The Illinois rule placing the burden of proving due care on plaintiff was not invoked in the instant case because the defendant did not demur to the amended petition, but assumed the affirmative burden of alleging contributory negligence. In this situation the burden of proof as to that issue was upon the defendant where it was placed by the pleadings. Menzenworth v. Mut. Life Ins. Co., 249 S.W. 113; Menard v. Goltra, 40 S.W.2d 1053. (2) Instruction 5, given at the request of the defendant, was erroneous and prejudicial to the plaintiff for the following reasons: (a) It directed a verdict for the defendant if the decedent failed to stop before going upon the railroad track, and was thereby broader than the amended answer, which did not allege a failure to stop. Riley v. Independence, 258 Mo. 671, 167 S.W. 1022; Telaneus v. Simpson, 12 S.W.2d 920. (b) It directed a verdict for the defendant if decedent failed to stop and listen, without requiring the jury to find that his failure was negligence. Under the Illinois law it is not negligence per se to fail to stop, nor is it negligence per se to fail to listen. The question is one for the determination of the jury. T. H. & Ind. Railroad Co. v. Voelker, 129 Ill. 540; C. & N.W. Ry. Co. v. Dunleavy, 129 Ill. 132; B. & O. S.W. Railroad Co. v. Then, 159 Ill. 552; Niemi v. Sprague, 288 Ill.App. 372. (c) It is never negligence on the part of a motorist to fail to stop unless both seeing and hearing are ineffectual without so doing. In the instant case there was no evidence that hearing was ineffectual without stopping, hence the issue should not have been submitted to the jury. Monroe v. C. & A. Ry. Co., 280 Mo. 483; Brown v. Railroad Co., 252 S.W. 55; Donohue v. Ry. Co., 91 Mo. 357; Weigman v. Railroad Co., 223 Mo. 699; Campbell v. Ry. Co., 175 Mo. 173. (d) The law of Illinois prescribes no arbitrary standard of conduct for a motorist approaching a railroad crossing, but what a motorist should or should not do to be in the exercise of ordinary care is for the determination of the jury. The instruction was erroneous in failing to require a finding of negligence. Gills v. N. Y. C. & St. L. Ry. Co., 342 Ill. 455; Dee v. Peru, 343 Ill. 42; Greenwald v. B. & O. Ry. Co., 332 Ill. 627; McCullough v. St. L. Pub. Serv. Co., 86 S.W.2d 334; DeBow v. C. C. C. & St. L. Ry. Co., 245 Ill.App. 158; Mahaney v. K. C., etc., Co., 46 S.W.2d 817; Clark v. Bridge Co., 24 S.W.2d 143, 324 Mo. 544.

Jones, Hocker, Gladney & Grand for respondent.

(1) Defendant's Instruction 1 did not place burden of disproving contributory negligence on plaintiff. Bleil v. Kansas City, 70 S.W.2d 913; Dietz v. Magill, 104 S.W.2d 707; Diamont v. Stein, 116 S.W.2d 273. (2) Burden of proof as to contributory negligence is a matter of substantive law. Koebel v. Tiemann Coal & Material Co., 337 Mo. 561, 85 S.W.2d 519; Sheehan v. Term. Railroad Assn., 336 Mo. 709, 81 S.W.2d 305; Hiatt v. St. L.-S. F. Ry. Co., 308 Mo. 77, 271 S.W. 806; Restatement of the Law, Conflicts of Laws, chap. 9, secs. 355, 380, chap. 12, sec. 595; 11 Amer. Juris. 523; Fitzpatrick v. International Ry. Co., 252 N.Y. 127, 169 N.E. 112, 68 A. L. R. 801; Central Vt. Railroad Co. v. White, 238 U.S. 507, 59 Law Ed. 1433, 35 S.Ct. 865. (3) The answer pleaded the Illinois law regarding the burden of proving contributory negligence, so as to bring the cases announcing it within the Missouri court's judicial notice. R. S. 1929, sec. 806; Greenwald v. B. & O. Ry. Co., 332 Ill. 627, 164 N.E. 142; Dee v. Peru, 343 Ill. 36, 174 N.E. 901; Provenzano v. Ill. Cent. Ry. Co., 357 Ill. 192, 191 N.E. 287. (4) Under Illinois law the burden of proof is on the plaintiff to disprove contributory negligence. Greenwald v. B. & O. Ry. Co., 332 Ill. 627, 164 N.E. 142; Dee v. Peru, 343 Ill. 36, 174 N.E. 901; Provenzano v. Ill. Cent. Ry. Co., 357 Ill. 192, 191 N.E. 287; Williams v. Penn. Ry. Co., 235 Ill.App. 49. (5) By pleading contributory negligence respondent no more assumed the burden of proving it than did the appellant, in hypothesizing freedom from contributory negligence in his instructions, assume the burden of disproving it. Bleil v. Kansas City, 70 S.W.2d 916. (6) Where an automobilist's view of approaching trains is obstructed at a crossing, he is guilty of contributory negligence in failing to stop and listen. Garland v. C. & N.W. Ry. Co., 8 Ill.App. 579; Monroe v. C. & A. Ry. Co., 280 Mo. 483, 219 S.W. 68; Central Coal & Coke Co. v. K. C. So. Ry. Co., 215 S.W. 914. (7) The evidence established that appellant's decedent was guilty of contributory negligence as a matter of law. Monahan v. Johnson, 197 Ill.App. 633; Hatzenbuehler v. Ill. Cent. Ry. Co., 206 Ill.App. 114; Cline v. C. M. & St. P. Ry. Co., 198 Ill.App. 163; Burns v. C. & A. Ry. Co., 223 Ill.App. 439.

OPINION

Lucas, J.

This case involves a crossing accident. Alva J. Rucker, a fifteen year old boy was driving a small truck on Green Street in Virdin, Illinois. The street crossed the railroad tracks of the defendant at a right angle. The railroad track was slightly higher than the street. Several railroad tracks crossed this street near the point of accident. A spur track was the easternmost track and some eight to fifteen feet west of this track was the northbound main line track. The morning of the accident Rucker was driving his truck westwardly. There was evidence that a box car or cars were standing on the spur track immediately south of Green Street. About one hundred feet south of Green Street and immediately east of the spur track was a grain elevator and about nine hundred feet south of the grain elevator and beyond the point where the spur track ended were some oil tanks and wooden buildings which were from seven to nine feet east of the northbound main line track.

A gasoline motor was running in the elevator at the time of the accident and the motor together with the elevator machinery made some noise. There was testimony to the effect that the box car and buildings obstructed the view of a northbound train to a westbound motorist. Rucker was driving the truck slowly and a northbound passenger train traveling fifty-five to sixty-five miles an hour hit the truck on this crossing and Rucker was instantly killed. There was testimony to the effect that the truck was traveling four or five miles an hour. Testimony also showed that the noise from the gasoline motor and the machinery in the elevator interfered with a motorist's hearing the noise of an approaching train. The engineer testified that the truck stopped with its wheels on the west rail of the switch track and then started forward. Other witnesses for defendant testified that the car stopped near, at, or on, the main track. Witnesses testified both ways on the question of whether or not the bell was ringing or a whistle sounded as the crossing was approached by the train. Plaintiff, as the administrator of the deceased brought this suit under the Wrongful Death Statutes of Illinois which were properly pleaded. The case was submitted upon only two allegations of negligence, namely; the failure to ring the bell and the failure to sound the whistle. The answer pleaded a general denial together with contributory negligence on the part of the deceased and the answer properly pleaded the Illinois law as to contributory negligence. The Railroad Company had judgment below and this appeal is by the plaintiff below.

The questions presented on this appeal involve only the correctness of the instructions given by the defendant below and the further question of whether or not a submissible case was made by the plaintiff below.

We think that it was proper to submit the case to the jury because the crossing in question was, under the evidence, a dangerous crossing and was the principal crossing in a town of four thousand people, and because of the location of buildings to the south and, as the evidence showed, a box car or cars to the south thereby obstructing the view of a westbound motorist and the noise of the machinery making hearing difficult. It was such a crossing that an approaching train should give the statutory warning signals and under the evidence showing noise and obstruction it would have been improper to have withdrawn this case from the jury. [Simpson v. St. L. & S. F. Ry. Co., 334 Mo. 1126, 70 S.W.2d 904; Connole v. I. C. Railroad Co., 21 S.W.2d 907; Sisk v. C., B. & Q. Railroad Co., 67 S.W.2d 830; Wagner v. Railroad Co., 352 Ill. 85.] To hold that the decedent was guilty of contributory negligence as a matter of law, under the evidence as introduced in this case, especially the evidence...