Scott v. Kurn

• Citation: 126 S.W.2d 185,343 Mo. 1210
• Decision Date: 15 March 1939
• Docket Number: 34933
• Parties: Robert W. Scott, Appellant, v. James M. Kurn and John G. Lonsdale, Trustees of the St. Louis-San Francisco Railway Company, a Corporation
• Court: United States State Supreme Court of Missouri

126 S.W.2d 185

343 Mo. 1210

Robert W. Scott, Appellant, v. James M. Kurn and John G. Lonsdale, Trustees of the St. Louis-San Francisco Railway Company, a Corporation

No. 34933

Supreme Court of Missouri

March 15, 1939

Rehearing Denied February 21, 1939.

Motion to Transfer to Court en Banc. Denied March 15, 1939.

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Affirmed.

Eagleton Waechter, Yost, Elam & Clark for appellant.

(1) Instruction 2, given by the trial court at defendants' request, was reversibly erroneous in that it incorrectly defined the phrase "highest degree of care," with respect to plaintiff's conduct on the issue of his contributory negligence, and was highly prejudicial to plaintiff. Laws 1911, p. 330; Sec. 7775, R. S. 1929; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Perkins v. Kansas City So. Ry. Co., 329 Mo. 1190, 49 S.W.2d 103; Jackson v. S.W. Bell Tel. Co., 281 Mo. 358, 219 S.W. 655; Rappaport v. Roberts, 203 S.W. 676; Monroe v. C. & A. Ry. Co., 280 Mo. 483, 219 S.W. 68. (2) Instruction 2, given by the trial court at defendants' request, was reversibly erroneous in that it assumed, rather than required, the jury to find that plaintiff's failure to stop his truck in a place of safety, after he actually or constructively had knowledge of the train's approach, constituted negligence, or a failure to exercise the highest degree of care, on the part of the plaintiff. Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; McLaughlin v. Marlatt, 296 Mo. 656, 246 S.W. 548; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143.

J. W. Jamison, A. P. Stewart and C. H. Skinker, Jr., for respondents.

(1) There was no error in defendants' Instruction 2 with respect to the use of the phrase "highest degree of care" as applied to plaintiff's conduct on the issue of his contributory negligence. Sec. 7775, R. S. 1929; Morhaus v. Hebeler, 104 S.W.2d 739; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 374; Allen v. Purvis, 30 S.W.2d 202; Robinson v. Ross, 47 S.W.2d 126; Gude v. Weick Bros. Undertaking Co., 322 Mo. 778, 16 S.W.2d 61. (2) When the jury finds "that the plaintiff by exercising the highest degree of care could have seen or heard the approaching train at any time before his truck went upon the track upon which said train was approaching and, after so discovering the approaching train, could have stopped the truck in a place of safety, and that he failed so to do" they have found acts and conduct on the part of plaintiff which constitute negligence as a matter of law. Monroe v. C. & A. Ry. Co., 297 Mo. 633, 249 S.W. 649; State ex rel. Hines v. Bland, 237 S.W. 1018; State ex rel. v. Shain, 105 S.W.2d 918; Evans v. Ill. Cent. Ry. Co., 289 Mo. 501, 233 S.W. 399; Tannehill v. Kansas City, C. & S. Ry. Co., 279 Mo. 170, 213 S.W. 821; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 362, 30 S.W. 342. Furthermore, the jury were required to find the plaintiff guilty of acts and omissions which, in and of themselves, would constitute a violation of the statute, and hence would be negligence per se. Sec. 7775, R. S. 1929; Threadgill v. United Rys. Co., 279 Mo. 466, 214 S.W. 165; Benzel v. Ainshanzlin, 297 S.W. 183. (3) There was no error in defendants' Instruction 2 with respect to specifying a finding of causal connection between plaintiff's negligence and the collision. The instruction not only required the jury to find that plaintiff's conduct "contributed to cause the collision" but also required the jury to find plaintiff guilty of acts and omissions that must as a matter of necessity have directly contributed to the injury. That is sufficient. Barr v. Mo. Pac. Ry. Co., 37 S.W.2d 929; Carr v. St. Joseph, 225 S.W. 923; Threadgill v. United Rys. Co., 279 Mo. 466, 214 S.W. 165.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant, plaintiff below, filed this suit to recover $ 50,000 in damages for personal injuries alleged to have been sustained when a passenger train of respondent Frisco Railway Company, collided with a truck, driven by plaintiff, at a grade crossing in Cuba, Missouri. A trial resulted in a verdict and judgment for defendants and plaintiff appealed. Defendants, James M. Kurn and John G. Lonsdale, are trustees of the defendant, St. Louis-San Francisco Railway Company.

Appellant charged the defendants with primary negligence consisting mainly in the failure to give the statutory warning signals for the crossings in the town of Cuba, and in particular the crossing where the collision occurred. The defendants denied being guilty of any negligence, and pled that the plaintiff was guilty of negligence in driving upon the tracks without taking the precaution of ascertaining whether a train was approaching. The trial court instructed the jury that appellant was bound to exercise the highest degree of care. Appellant seeks a reversal of the judgment and a new trial on the ground that the term "highest degree of care" was erroneously defined in the instruction. Respondents contend that the instruction conforms to the law, and in addition thereto contend that plaintiff, under the evidence, was guilty of contributory negligence as a matter of law, and that therefore appellant is not entitled to a new trial even if the instruction was erroneous.

The facts, as disclosed by the record, are substantially as follows: The main line of the Frisco passes through the town of Cuba in an easterly and westerly direction. To the south of the main line is a switch track which extends some distance east and west of the crossing where the collision occurred. Highway No. 19 runs in a northerly and southerly direction and crosses these tracks at grade in the east part of the village. The collision occurred on the morning of January 19, 1934. Plaintiff was driving a truck north on Highway No. 19. The passenger train was traveling east. A number of witnesses testified for plaintiff that only one warning signal was given of the approach of the train; that the whistle was sounded when the train approached the town, but not thereafter. Witnesses for the defendant testified that the bell on the engine was ringing and the whistle was sounded at regular intervals as the train approached the point of collision. One witness testified that the whistle was so keen that it hurt his ears and he turned his head to break the sound. A woman testified that she was forced to discontinue her conversation for, what seemed to her, several minutes. This because of the noise of the train and the blowing of the whistle. So we have a sharp dispute over the question of whether defendants were negligent. And even though it appears from the record that the preponderance was on the side of the defendants, yet it was a question for the jury to decide. Witnesses differed as to the speed of the train, which was estimated to have been between thirty and fifty miles per hour. The engineer placed it at about forty-five miles per hour. The train was a regular passenger train called the Blue Bonnet. It was two or three minues late on this morning.

Plaintiff had lived in Cuba for many years. For twelve years prior to the collision he had been employed by the Standard Oil Company, and in line of his duties had been about the railroad tracks almost daily and was acquainted with the yards and its surroundings. On the day of the collision he was driving a truck upon which was mounted a gasoline tank filled with gasoline, and was preparing to make deliveries to his customers. About ten feet to the south of the switch track and about fifty feet west of the west line of Highway 19, were located a number of storage tanks mounted upon concrete pillars. On the day in question there was an oil tank car upon the switch track about seventy-five feet west of the west line of Highway No. 19. That was the situation immediately before the collision as plaintiff approached the tracks with his truck. Plaintiff's version of what occurred was stated by him as follows:

"After I had gotten onto Highway 19 and started north about forty feet from the switch track I approached this incline, with my truck in second gear, and watched, and listened for signals. I eased up slow when I got to the top of this grade; I slacked the car up so I could ease out in case an engine was coming and I could stop and be in safety. From the position I was in I could see down about 200 feet west of Highway 19...