Savage v. Railway Co., No. 29570.

• Court: Missouri Supreme Court
• Writing for the Court: Hyde
• Citation: 40 S.W.2d 628
• Decision Date: 24 June 1931
• Docket Number: No. 29570.
• Parties: EDWARD SAVAGE v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY AND E.M. WORLAND, Appellants.

40 S.W.2d 628 EDWARD SAVAGE
v.
CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY AND E.M. WORLAND, Appellants. No. 29570. Supreme Court of Missouri. Division One, June 24, 1931.

[40 S.W.2d 629]

Appeal from Platte Circuit Court. — Hon. Guy B. Park, Judge.

AFFIRMED.

Luther Burns, Henry S. Conrad, L.E. Durham and Hale Houts for appellants.

(1) Plaintiff's petition fails to state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants or either of them. LaRue v. LaRue, 317 Mo. 214, 294 S.W. 726; Carr v. Ry Co., 195 Mo. 225; Frye v. Ry. Co., 200 Mo. 400; Ahnefeld v. Railroad, 212 Mo. 300; Hufft v. Railroad, 222 Mo. 300; Pope v. Railroad, 242 Mo. 239; Shaw v. Railroad, 184 S.W. 1153; Thompson v. Railroad, 18 S.W. (2d) 404. (2) The court erred in not directing a verdict for the defendants. (a) As a matter of law, under the pleadings and the evidence, the defendants were not negligent. Degonia v. Railroad, 224 Mo. 589; State ex rel. v. Ellison, 270 Mo. 653; Kitchen v. Mfg. Co., 20 S.W. (2d) 682; Krelitz v. Calcaterra, 33 S.W. (2d) 911. Authorities supra. (b) Aside from any other question, the court should have directed a verdict for the defendants because plaintiff's injury as a matter of law was caused or contributed to by plaintiff's own negligence. Dyrez v. Railroad, 238 Mo. 46; Riddell v. Railroad, 292 S.W. 710; Steve v. Railroad, 265 Mo. 97. (3) The court erred in giving plaintiff's Instruction 1. (a) The instruction authorized a verdict for plaintiff without requiring the jury to find actionable negligence on the part of the defendants. Authorities 1, supra. (b) The instruction was erroneous in authorizing the jury to find that plaintiff was exercising ordinary care, whereas as a matter of law he was guilty of negligence, but for which he would not have been injured. Authorities 2 (b) supra. (c) The alleged negligent operation without headlight and the alleged negligence in failing to give warning signal were erroneously submitted and the instruction constituted a roving commission. Frye v. Railway, 200 Mo. 407; Sullivan v. Ry. Co., 297 S.W. 950; Ingram v. Ry., 30 S.W. (2d) 993; Armstrong v. Railroad, 195 Mo. App. 86; McGrath v. Transit Co., 197 Mo. 105; Rollison v. Railroad, 252 Mo. 536; Toeneboehn v. Railway, 317 Mo. 1111; Chawkley v. Ry. Co., 317 Mo. 788; Byington v. Railroad, 147 Mo. 679; Lackey v. Railway, 288 Mo. 147. (4) The court erred in refusing defendants' requested instructions Q and P. (a) Defendants were entitled to present to the jury in concrete form such defense as the action of the court had left them, were therefore entitled to Instruction Q. Cochran v. Railroad, 113 Mo. 366; Kenefick and Hammond v. Fire Ins. Society, 205 Mo. 294; Everhart v. Tryson, 244 Mo. 517; Yuronis v. Wells, 17 S.W. (2d) 521; Sisk v. Construction Co., 316 Mo. 1148; Huss v. Bakery Co., 210 Mo. 52; Allen v. Trust Co., 183 Mo. 435; Crawford v. Dahlenberg, 283 S.W. 70; Stephens v. El Dorado Springs, 185 Mo. App. 464; Miller v. Rys. Co., 247 S.W. 231; Boles v. Dunham, 208 S.W. 480; Webb v. Byrd, 219 S.W. 683; Sullivan v. Chauvenet, 186 S.W. 1093. (b) Assuming there was any duty owed the plaintiff in respect to the headlight, plaintiff was not entitled to recover because the headlight was not burning, unless the defendants were negligent. Instruction P was a correct and necessary instruction upon this question, if a proper question to submit at all, and after the giving of Instruction 1 it was error for the court to refuse Instruction P. Frye v. Railway, 200 Mo. 407; State ex rel. v. Reynolds, 257 Mo. 38. (5) The verdict was excessive. Foster v. Davis, 252 S.W. 433; Leighton v. Davis, 260 S.W. 986; Rose v. Railway, 315 Mo. 1181, 289 S.W. 920; Spencer v. Railroad, 317 Mo. 492, 297 S.W. 357; Maher v. Donk Bros., 20 S.W. (2d) 888; Sallee v. Railway, 12 S.W. (2d) 476; Mahmet v. Radiator Co., 294 S.W. 1016; Young v. Rust, 268 Mo. 625.

W.W. McCanles for respondent.

(1) Plaintiff's petition states facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants. Fry v. Ry. Co., 200 Mo. 400; Carr v. Ry., 195 Mo. 255; Beard v. Ry. Co., 197 S.W. 907; Brown v. Railroad, 50 Mo. 461; Dalton v. Ry. Co., 208 S.W. 828; State ex rel. v. Trimble, 260 S.W. 1000; Ulrich v. Railway Co., 252 S.W. 379; Hubbard v. Railway Co., 193 S.W. 579; Becke v. Ry. Co., 102 Mo. 544; Kippenbrock v. Railway Co., 194 S.W. 50. (2) The court did not err in its refusal to direct a verdict for the defendants. (a) Under the pleadings and the evidence the defendants were negligent. (b) Plaintiff's injury was not as a matter of law caused or contributed to by his own negligence. Kippenbrock v. Ry. Co., 194 S.W. 50; Stanley v. Ry. Co., 27 S.E. 27. (3) The court did not err in giving plaintiff's Instruction 1. (a) The instruction did not authorize a verdict for plaintiff without requiring the jury to find actionable negligence on the part of the defendants. Authorities 2 (a). (b) The instruction was not erroneous in authorizing the jury to find that plaintiff was exercising ordinary care and the plaintiff was not guilty of negligence but for which he would not have been injured. Authorities 2 (b). (c) The alleged negligent operation without headlight and the alleged negligence in failing to give warning signal were not erroneously submitted and the instruction did not constitute a roving commission. Thomas v. Ry. Co., 271 S.W. 864; Ward v. Ry. Co., 277 S.W. 908; Toeneboehn v. Railway Co., 298 S.W. 795; Stotler v. Railway Co., 200 Mo. 137; Clay v. Ry. Co., 5 S.W. (2d) 409. (4) The court did not err in refusing to give defendants' requested Instructions Q and P. (a) The defendants were entitled to present to the jury in concrete form their defense, but were not entitled to Instruction Q. and the court did not err in refusing to give the instruction. Moll v. Pollack, 8 S.W. (2d) 47; Krelitz v. Calcaterra, 33 S.W. (2d) 912; Trapp v. State National Bank, 289 S.W. 550; State v. Moore, 101 Mo. 316; Britton v. St. Louis, 120 Mo. 437; Naylor v. Cox, 114 Mo. 232; K.C. Suburban Belt Ry. v. McElroy, 161 Mo. 584; Seelig v. Ry. Co., 230 S.W. 101; Quinn v. Van Raalte, 205 S.W. 59. (b) Instruction P was not a correct and necessary instruction upon the question of whether or not the headlight was burning, and it was not error for the court to refuse said instruction. (5) The verdict was not excessive. Taylor v. Ry. Co., 279 S.W. 115; Schroeder v. Wells, 298 S.W. 806; Hoff v. Ry. Co., 254 S.W. 874; Evans v. Explosives Co., 239 S.W. 487; Trowbridge v. Fleming, 269 S.W. 610.

HYDE, C.

This is a suit for damages for personal injuries. Plaintiff's evidence was that he was employed as a switchman in the yards of the Wabash Railway Company in North Kansas City, Missouri, and that he was earning $6.62 per day for each day he worked. His monthly earnings averaged between $154 and $191 per month.

The main line of the Burlington Railway ran from northeast to southwest through North Kansas City, the North Kansas City station being on the west side of the main line. There was also between the main line and the North Kansas City station the single main track of the Q.O. & K.C. Railway. There were two main line tracks of the Burlington Railway, one being for westbound or incoming trains coming into Kansas City, and the other for eastbound trains. East of the main line tracks was a fourth track known as the Wabash passing track. The Wabash yards where plaintiff was employed lay to the south and east. These yards were very extensive, employing about two hundred men and fifteen switch engines. There was a roundhouse where the Wabash turned their engines, an eating house for employees, and a yard office. The defendant, Chicago, Rock Island & Pacific Railway, ran all its trains over the Burlington main-line tracks from Cameron Junction into Kansas City through North Kansas City. The plaintiff's evidence is not clear as to whether

40 S.W.2d 630

or not the Wabash Railway ran all of its trains over these Burlington main-line tracks through North Kansas City. However, it was shown that they did use these tracks for transferring freight cars from their North Kansas City yards across the river into Kansas City. There were tracks from the Wabash yards to the Burlington main-line tracks and the tracks are referred to at times in the testimony as the Burlington or Wabash tracks. The Wabash had a grain elevator and was also constructing another large grain elevator across the main-line tracks from the North Kansas City depot.

Plaintiff's testimony was that he arrived near the North Kansas City station on a street car from Kansas City, and that several other men employed in the yards came on the same car and preceded plaintiff across the main-line tracks into the Wabash yards, at about eleven P.M. on March 29, 1927. The evidence was that practically all of the two hundred Wabash employees went back and forth across the main-line tracks near the North Kansas City station in going to and from work, and that there were Wabash employees crossing these tracks at almost all hours of the day and night, and that this use had continued long enough to be known to defendant. There was, however, a road crossing some distance from the North Kansas City station which was sometimes used by the Wabash employees who came in automobiles as the place for crossing into the Wabash yards, but not by those who came to work on the street car.

The plaintiff's evidence was that when he started from the North Kansas City station to go into the Wabash yards he walked angling to the southeast along the station platform across the Q.O. & K.C. track between the tracks and onto the incoming main-line track. Before going on the tracks he stopped and looked both ways. It was a very dark night and he could only see about fifteen feet, but he could have seen a headlight of a train, approaching on the incoming track, for at least a mile. He was...