Schneider v. Terminal Railroad Assn.

• Citation: 107 S.W.2d 787
• Decision Date: 02 July 1937
• Docket Number: No. 34307.,34307.
• Parties: AUGUST J. SCHNEIDER, Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation.
• Court: United States State Supreme Court of Missouri

107 S.W.2d 787

AUGUST J. SCHNEIDER, Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation.

No. 34307.

Supreme Court of Missouri.

Court en Banc, July 2, 1937.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank C. O'Malley, Judge.

REVERSED AND REMANDED (with directions).

C.O. Inman for appellant.

(1) Instruction 3, given at the request of the plaintiff, properly submitted the humanitarian doctrine as a ground for recovery. It required the jury to find every ultimate fact essential to recovery, to-wit: That plaintiff was in a position of imminent peril; that defendant saw, or could have discovered, plaintiff's peril by the exercise of ordinary care; that defendant could thereafter, by exercising ordinary care, with the means at hand and with safety to persons on the train, have stopped the same or given timely and adequate warning to plaintiff and thereby have avoided the injury; that defendant negligently so failed to warn or stop the train, and that plaintiff was injured as a direct result of such failure. Banks v. Morris & Co., 257 S.W. 482; Jordan v. St. J. Ry., L.H. & P. Co., 73 S.W. (2d) 205; Scott v. Terminal Railroad Assn., 86 S.W. (2d) 116; Thompson v. Railroad Co., 18 S.W. (2d) 401; Hencke v. Railroad Co., 72 S.W. (2d) 798; Larey v. Railroad Co., 64 S.W. (2d) 681; Zumwalt v. Railroad Co., 266 S.W. 717; McGowan v. Wells, 324 Mo. 654, 24 S.W. (2d) 633. (2) It was not error to fail to require the jury to find that plaintiff was oblivious of the approaching train or that defendant's servants knew, or could have discovered, plaintiff's obliviousness, because: (a) Having judicially admitted in its answer that plaintiff was oblivious, the defendant is estopped to deny its knowledge that plaintiff was oblivious. Obliviousness was not a disputed issue in the case. Grott v. Shoe Co., 2 S.W. (2d) 789; Stout v. K.C. Pub. Serv. Co., 17 S.W. (2d) 363; Fleming v. McMahon Cont. Co., 45 S.W. (2d) 952; Bird v. St. L.-S.F. Ry. Co., 78 S.W. (2d) 394; Hart v. M. & St. P. Ry. Co., 265 S.W. 116; Crockett v. K.C. Ry. Co., 243 S.W. 902; Flederman v. Ry. Co., 254 S.W. 717; State ex rel. Nat. Newspapers Assn. v. Ellison, 200 S.W. 435. (b) Imminent peril of plaintiff and knowledge, actual or constructive, of it on the part of the defendant are the ultimate issuable facts to be submitted to the jury. Obliviousness is merely a subsidiary or evidentiary fact which tends to establish the fact of peril. The instruction submitted the ultimate issuable facts, which in this case necessarily required the jury to find that plaintiff was oblivious and that defendant's servants knew, or should have known, of it. Banks v. Morris & Co., 257 S.W. 482; Karte v. Brockman Mfg. Co., 247 S.W. 417; Wenzel v. Busch, 259 S.W. 767; Clark v. Ry. Co., 6 S.W. (2d) 954; Taylor v. Kelder, 88 S.W. (2d) 436; Montague v. Railroad Co., 305 Mo. 269, 264 S.W. 813; Scott v. Terminal Railroad Assn., 86 S.W. (2d) 116. (c) If the plaintiff's Instruction 3 was too general, in that it failed to submit an evidentiary fact, to-wit, obliviousness, the error, if any, was cured by Instruction 7, given at the request of the defendant, which specifically required such finding as a condition precedent to a recovery by the plaintiff. Jordan v. St. Joseph, etc., Power Co., 73 S.W. (2d) 205; McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W. (2d) 37, 40; Scott v. Terminal Railroad Assn., 86 S.W. (2d) 116. (d) The requirement in plaintiff's instruction that plaintiff was in a position of imminent peril and that defendant knew, or should have known thereof, and the requirement in defendant's instruction that plaintiff must have been oblivious to his peril and that the defendant had knowledge thereof were not opposed to each other. The idea conveyed to the jury in defendant's instruction was merely an elaboration of plaintiff's theory. Therefore, the two instructions were not in conflict, but, taken together, clearly informed the jury what they must find before plaintiff could recover. Ridenhour v. Railroad Co., 102 Mo. 270; Acker v. Koopman, 50 S.W. (2d) 100; Hicks v. Vieths, 46 S.W. (2d) 604; Sharp v. Carthage, 319 Mo. 1028, 5 S.W. (2d) 6; Barraclough v. Railroad Co., 52 S.W. (2d) 1063. (3) Instruction 11, given at the request of the plaintiff, properly submitted the elements of damage for which plaintiff was entitled to recover if the jury found in his favor. Cunningham v. Doe Run Lead Co., 26 S.W. (2d) 957; Clark v. Atchison & Eastern Bridge Co., 62 S.W. (2d) 1079; Hulsey v. Quarry & Const. Co., 326 Mo. 194, 30 S.W. (2d) 1018; Keyes v. C.B. & Q. Ry. Co., 326 Mo. 236, 31 S.W. (2d) 50; Dean v. Railroad Co., 199 Mo. 393, 97 S.W. 910; Powell v. Railroad Co., 255 Mo. 453, 164 S.W. 628; Brickey v. St. L.M.B. Term. Ry. Co., 259 S.W. 476; Wolfe v. Kansas City, 68 S.W. (2d) 821; Laycock v. United Rys. Co., 290 Mo. 344, 238 S.W. 91; Hill v. Union E.L. & P. Co., 169 S.W. 345; Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S.W. 932.

T.M. Pierce, J.L. Howell and Walter N. Davis for respondent.

(1) Plaintiff failed to make a submissible case for the following reasons: (a) The evidence shows that plaintiff drove upon the track in such close proximity to an approaching train that the employees were unable to stop same to warn him in time to prevent the accident. Elkin v. St. Louis Pub. Serv. Co., 74 S.W. (2d) 600. (b) The relation of facts given by plaintiff and his witnesses are incredible. It is opposed to the physical facts to say that a train in 4 seconds or less would start, run 200 feet and at end of 200 feet be going only 10 miles an hour. At some point in that 200 feet the train would necessarily have traveled at the rate of over 100 miles an hour. Maxwell v. Kansas City, 52 S.W. (2d) 487; Scroggins v. Met. St. Ry. Co., 138 Mo. App. 215, 120 S.W. 731; Ristucci v. N. & W. Ry. Co., 60 Fed. (2d) 28; N. & W. Ry. Co. v. Ely, 162 S.E. 3. (2) Plaintiff's Instruction 3 constituted error. First: Because it is predicated on the humanitarian doctrine and permits a recovery on the failure to warn alone, without a finding that plaintiff was oblivious. This finding was a necessary element of plaintiff's right of recovery. Pentecost v. Terminal Railroad, 66 S.W. (2d) 533; Perkins v. Terminal Railroad, 102 S.W. (2d) 915. Second: Because the instruction assumes as a matter of fact that plaintiff was in a position of imminent peril, when it says, "After the plaintiff came into a position of imminent peril of being struck by said train." Third: The instruction conflicts with defendant's Instruction 7. This instruction does not contain all the essential elements of plaintiff's case. State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W. (2d) 37. Scudder v. St. Joseph Belt Ry. Co., 338 Mo. 492. (3) The court erred in refusing to give and read to the jury defendant's Instruction lettered B, because, in order to intelligently understand the situation and law, it was necessary for the jury to know where the danger zone began. Elkins v. St. Louis Pub. Serv. Co., 74 S.W. (2d) 600; Lamoreaux v. St. L.-S.F. Ry. Co., 87 S.W. (2d) 640; Clark v. Railroad Co., 6 S.W. (2d) 960.

FERGUSON, C.

Action for damages for personal injuries sustained by plaintiff when an automobile truck, which he was driving, was struck by one of defendant's trains at a railroad crossing in the city of St. Louis. The cause was tried in the circuit court of that city and resulted in a verdict for plaintiff in the sum of $12,000. The trial court sustained defendant's motion for a new trial and plaintiff brings this appeal from the order granting the new trial.

The case was submitted to the jury solely on negligence under the humanitarian doctrine. The specific violations of the humanitarian rule alleged and submitted being failure to stop the train or to give a timely warning. The order granting the new trial specified as ground thereof that the trial court erred in giving, at plaintiff's request, instructions numbered 3 and 11. Instruction numbered 11, on the measure of damages, is not criticized here and since it appears to be in approved form and our attention is not directed to wherein it is alleged to be erroneous the instruction will not be further considered. But Instruction 3 hypothesizing the facts which the jury were required to find to authorize a verdict for plaintiff on the humanitarian theory is in controversy.

[1] However before looking further to the instructions we must rule defendant's contention that plaintiff "did not make a submissible case," and that its motion for a directed verdict, in the nature of a demurrer to the evidence, at the close of the evidence, should have been sustained. It follows that if that contention is sustained an examination of instructions will be obviated. This requires a review of the evidence. The collision occurred at the crossing of Dock Street and defendant's railroad tracks in the city of St. Louis. Dock Street is an east and west street and the railroad tracks extend north and south in Hall Street, a north and south street. Four north and south railroad tracks cross Dock Street. The tracks are numbered from the east, the easternmost track being designated track 1, the next track to the west track 2, etc. Track 1 is a sidetrack, track 2 "the northbound main line track," and, track 3 "the southbound main line track." The tracks are "straight" for several blocks both north and south of this crossing. The train which struck defendant's truck came from the north, on track 1, and for a distance of several hundred feet east from the tracks there is an unobstructed view of the tracks for three or four blocks to the north. The collision occurred at about six P.M., August 1, 1933. "The weather was fair and it was just getting dusk" but the visibility was such that plaintiff could plainly see trains at a distance of several blocks and likewise trainmen could see automobiles, and the drivers thereof, on...