Scheidegger v. Thompson

• Decision Date: 05 October 1943
• Docket Number: No. 26385.,26385.
• Citation: 174 S.W.2d 216
• Parties: SCHEIDEGGER v. THOMPSON.
• Court: Missouri Court of Appeals

174 S.W.2d 216

SCHEIDEGGER v. THOMPSON.

No. 26385.

St. Louis Court of Appeals. Missouri.

October 5, 1943.

Appeal from St. Louis Circuit Court; James F. Nangle, Judge.

"Not to be reported in State Reports."

Action by Jane Scheidegger against Guy A. Thompson, trustee of Missouri Pacific Railroad Company, to recover for personal injuries suffered by plaintiff in a grade crossing collision between defendant's train and an automobile in which plaintiff was riding. Judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Thos. J. Cole, of St. Louis, for appellant.

Joseph D. Feigenbaum, of St. Louis, for respondent.

ANDERSON, Judge.

This is an appeal from a judgment for plaintiff in an action for damages for personal injuries.

On the evening of October 28, 1939, the plaintiff and one Mary Jane Gray went riding in an automobile owned by William J. Kinsella, Jr., but driven by his daughter Jane Kinsella. Betty Kinsella, a sister of Jane, was also a passenger in the car. The automobile was being driven northwardly along Leffingwell avenue in the city of Kirkwood, Missouri, and between eleven and twelve p. m., while crossing defendant's railroad tracks, was struck by one of defendant's trains.

For negligence, the petition alleges violation by defendant of Section 5213, R.S. Mo.1939, Mo.R.S.A. § 5213, in failing to ring the engine bell or to sound the engine whistle at the time required by said statute. Later, the petition was amended by striking out the allegation as to failure to sound the whistle.

Plaintiff and Betty Kinsella testified as to the manner in which they claimed the accident happened. At the crossing in question, there were two sets of tracks. Both plaintiff and Betty Kinsella testified that the car was brought to a stop before it crossed the first set of tracks. They also stated that the windows of the car were closed, but that they were able to hear horns of other automobiles, and would have been able to hear bells or whistles had they been sounded. After stopping on the south side of the tracks, and seeing no trains after looking and listening, they caused their automobile to proceed across the tracks.

The record contains evidence that the view eastward from the south side of the tracks was somewhat obstructed by shrubbery at the right-of-way. When the automobile reached the second set of tracks, it was struck by a westbound freight train and was caused to be turned around and pushed against the post of a crossing sign on the north side of the tracks.

Plaintiff received five hundred dollars from an insurance company in settlement of her claim against the driver of the automobile. The jury returned a verdict for $4,000.

Other facts necessary to a decision of the points raised will be stated hereafter in connection with said points.

By an assignment of error, appellant contends that the trial court abused its discretion, or exercised it arbitrarily, in not setting aside the verdict and judgment as being against the weight of the evidence on the issue of negligence; and, in support of this contention, appellant urges that the positive testimony that the engine bell was rung, given by defendant's witnesses, destroyed the negative testimony on that issue, given by plaintiff and another witness who was a passenger in the automobile at the time in question.

Both plaintiff and her witness testified that they heard no bell. Both were aware that they were approaching a railroad crossing and were in a position to have heard such signal had one been given. Under the rule announced by this court in Connole v. Illinois Cent. R. Co., Mo.App., 21 S.W.2d 907, such evidence was substantial and raised an issue of fact for the jury. Where a review of the action of the trial court in refusing to grant a new trial on the ground that the verdict is against the weight of the evidence is sought, we will not interfere where the evidence pro and con is substantial and conflicting, or where there is substantial evidence to support the trial court's action. Hunt v. Gus Gillerman Iron & Metal Co., 327 Mo. 887, 39 S. W.2d 369. This assignment is ruled adversely to appellant.

Appellant also complains that the court permitted recovery under a statute, Sec. 5213, R.S.Mo.1939, Mo.R.S.A. § 5213, which was non-existing at the time of the accident. The accident occurred October 28, 1939. At that time the statute was in full force and effect as Section 4756, R.S.Mo. 1929.

Appellant next complains of the action of the trial court in failing and refusing to strike from the record a certain answer made by plaintiff to a question propounded to her by her counsel, which matter appears in the abstract as follows:

"Mr. Feigenbaum: I will hand you this picture, marked Plaintiff's Exhibit F, and ask you what that shows? A. Well, this is a picture as it is at the present time and the picture was taken just a few days ago, and it shows on the side here where this brick entrance is (indicating) that some of the shrubbery has been taken away since the time of the accident.

"Mr. Cole: Well, I object to that; it's a conclusion of the witness, and I ask that the jury be instructed to disregard her statement that it shows that some of the shrubbery had been taken away. That is for the jury to determine.

"The Court: It's overruled.

"Mr. Cole: Save an exception."

An examination of the motion for new trial contained in the abstract discloses that nowhere in the motion for new trial does appellant complain of the refusal of the trial court to strike out this testimony or of the court's refusal to instruct the jury to disregard it. Therefore, we are precluded from passing upon the point raised. Molkenbur v. St. Louis Public Service Co., 232 Mo.App. 256, 103 S.W.2d 560; Taylor v. Kelder, 229 Mo.App. 1117, 88 S.W.2d 436.

Appellant also complains of a ruling made while plaintiff's witness Betty Kinsella was on the stand, to wit:

"Q. * * * Have you and your sister, the one that was driving the machine, made claim through your attorneys against the Missouri Pacific Railroad Trustee for injuries received in that accident? A. No, we haven't. We thought that they would settle with us for damages.

"Mr. Cole: I move to strike that out — her thoughts on the matter, and ask the court to instruct the jury to disregard that.

"The Court: Sustained; disregard it; strike it.

"Mr. Feigenbaum: I don't ask you whether you went to trial on cases, but did you make claim? In other words, did you have your attorneys claim of the Missouri Pacific Railroad for damages for your injuries? A. Our attorneys did.

"Q. Yes; you did. Then Jane Scheidegger is not the only girl in that machine who made claim against the Missouri Pacific Railroad?

"Mr.Cole: Wait a minute; I object to that as calling for a conclusion of the witness.

"The Court: It's overruled; you may answer."

There was no exception saved to this ruling, and hence we are precluded from reviewing the court's ruling.

It is next complained that the court erred in failing to strike out testimony given by plaintiff's brother that he had, on occasions when he visited plaintiff, been told by her that she had a backache or headache. As heretofore stated, there was no complaint in the motion for new trial which would permit a review of the action of the trial court in refusing to strike out testimony. Therefore, we must refuse to pass upon the issue raised by this assignment.

Appellant next complains that the trial court erred in permitting a portion of the wrapper of the court file in this case to be read in evidence. At the trial, a controversy arose between plaintiff's counsel and defendant's counsel as to who was responsible for the long delay between the time of filing the suit and the trial, and the evidence discloses that plaintiff's purpose in introducing the file was to show that the delay was caused by the act of defendant's counsel in filing a motion to make plaintiff's petition more definite and certain. In this court the point is not developed in appellant's brief beyond the bare statement that the offering of this evidence constituted pettyfogging. We will not pass judgment upon this point, for, even if true, the action of plaintiff's counsel in this respect and the court's action in permitting the introduction of the evidence could not have influenced the verdict. If error, it was harmless. We are precluded from reviewing it for another reason. The motion for new trial contains no assignment under which the ruling could be preserved. The motion complains only that the court erred in admitting, over the objection of defendant, incompetent, immaterial, and irrelevant testimony. This is not sufficient to preserve for review the action of the court in admitting documentary evidence. Bach v. Ludwig, Mo.App., 109 S.W.2d 724.

Complaint is made of plaintiff's Instruction No. 1. The gist of the complaint is that it was not broad enough to cover the defense developed by the defendant's evidence.

The instruction presented the only assignment of negligence alleged, that is, failure to observe the requirements of Section 5213, R.S.Mo.1939, Mo.R.S.A. § 5213, in that defendant negligently failed to ring the bell of the locomotive involved in the accident at a distance of eighty rods from the crossing in question and keep it ringing while said locomotive approached said crossing. After requiring a finding that defendant violated the provisions of said statute, the instruction contains the further requirement that the jury find and believe from the evidence that such failure, if any, caused the collision, and that plaintiff was exercising ordinary care for her own safety at the time.

At the trial the defendant offered evidence that just prior to the collision the train was proceeding upgrade, with the engines making a noise that could have been heard for several miles; and that the headlight on the leading engine, which was burning, could easily have been seen by anyone approaching the...