Scott v. Mo. Pac. Railroad Co.

• Court: Missouri Supreme Court
• Writing for the Court: Frank
• Citation: Scott v. Mo. Pac. Railroad Co., 62 S.W.2d 834, 333 Mo. 374 (Mo. 1933)
• Decision Date: 03 August 1933
• Docket Number: No. 30473.,30473.
• Parties: HARRY S. SCOTT and THE TRAVELERS INSURANCE COMPANY v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.

62 S.W.2d 834

HARRY S. SCOTT and THE TRAVELERS INSURANCE COMPANY v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.

No. 30473.

Supreme Court of Missouri, Division One.

August 3, 1933.

Appeal from Vernon Circuit Court. — Hon. C.A. Hendricks, Judge.

AFFIRMED.

Thomas J. Cole, Lyman J. Bishop and D.C. Chastain for appellant.

(1) The acceptance of compensation under the Kansas statute by plaintiff Scott operated as an assignment of his right of action and plaintiffs have no right to maintain this action. Sec. 4, Ch. 232, Laws of Kansas 1927, p. 390; Swader v. Kan. Flour Mills Co., 176 Pac. 143; Workmen's Compensation Exchange v. Ry. Co., 45 Fed. (2d) 885; Polucha v. Landes, 233 N.W. 264; Sylvia v. Scotten, 122 Atl. 513; Pittsburgh C.C. & St. L. Ry. Co. v. Park, 132 N.E. 372: Ridley v. United Sash & Door Co., 98 Okla. 80, 224 Pac. 351; Hunt v. Bank Line Ltd., 35 Fed. (2d) 136; Peet v. Mills, 76 Wash. 437, 136 Pac. 685; Pawlak v. Hayes, 162 Wis. 503, 156 N.W. 464. (2) The contributory negligence of plaintiff Scott bars recovery for the primary negligence charged to the defendant. Bazzell v. Ry. Co., 5 Pac. (2d) 804; Acker v. Railroad Co., 106 Kan. 401, 188 Pac. 419; Wehe v. Ry. Co., 97 Kan. 794, 156 Pac. 742; Pritchard v. Ry. Co., 99 Kan. 600, 162 Pac. 315; Bunton v. Ry. Co., 100 Kan. 165; Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624; Williams v. Ry. Co., 102 Kan. 268, 170 Pac. 397; A.T. & S.F. Ry. Co. v. Holland, 60 Kan. 209, 56 Pac. 6; A.T. & S.F. Ry. Co. v. Schriver, 80 Kan. 540, 103 Pac. 994; Jacobs v. Ry. Co., 97 Kan. 247, 154 Pac. 1023; Rathbone v. Ry. Co., 113 Kan. 257, 214 Pac. 109; Holman v. Ry. Co., 113 Kan. 710, 214 Pac. 1111; Cooper v. Ry. Co., 117 Kan. 703, 232 Pac. 1024; Brown v. Ry. Co., 121 Kan. 32, 245 Pac. 1034; Beech v. Ry. Co., 85 Kan. 90; Atkinson v. Ry. Co., 103 Pac. 446; Reader v. Ry. Co., 112 Kan. 404, 210 Pac. 1112; Johnson v. Ry. Co., 204 Pac. 727; Williams v. Ry. Co., 252 Pac. 470; Clark v. Ry. Co., 272 Pac. 128; Ek v. Ry. Co., 294 Pac. 663; Hartman v. Ry. Co., 294 Pac. 913; Evans v. Ry. Co., 289 Mo. 493; Woodward v. Bush, 282 Mo. 163; Moore v. Ry. Co., 297 Mo. 633; Gersman v. Ry. Co., 229 S.W. 167; Neosho Grocery Co. v. Ry. Co., 238 S.W. 514; Henderson v. Ry. Co., 284 S.W. 788; State ex rel. Hines v. Bland, 237 S.W. 1018; State ex rel. Maclay v. Cox, 10 S.W. (2d) 940; Osborn v. Railroad Co., 179 Mo. App. 245; Keele v. Ry. Co., 151 Mo. App. 364. (3) Instructions 3, 4, and 6, given on behalf of the plaintiffs conflict with Instruction D given for the defendant and such conflict constitutes error. Gardner v. Met. St. Ry. Co., 223 Mo. 389; Nagy v. St. L. Car Co., 37 S.W. (2d) 513. (4) The plaintiffs did not make a case under the last chance doctrine. It was error to give Instruction 5 on the part of the plaintiffs. (a) The defendant's employees had a right to assume that the plaintiff Scott would stop. Cleveland C.C. & St. L. Ry. v. Gillespie, 173 N.E. 708; Philadelphia & Reading Ry. v. Dillon, 114 Atl. 62, 15 A.L.R. 894; Gage v. Railroad Co., 90 Atl. 855, 77 N.H. 289, L.R.A. 1915A. 363; Trask v. Railroad Co., 106 N.E. 1022, 219 Mass. 410; Baldwin v. Wells, 27 S.W. (2d) 435; Clark v. A.T. & S.F., 319 Mo. 865, 6 S.W. (2d) 954; Beal v. Ry., 256 S.W. 733; Maginnis v. Railroad Co., 268 Mo. 667, 187 S.W. 1165; England v. Railroad Co., 180 S.W. 32; Kirkdoffer v. Ry., 37 S.W. (2d) 569. (b) There is no room for the last chance doctrine under the facts. Sing v. Ry. Co., 30 S.W. (2d) 37. (5) The court erred in refusing to give Instruction 8 offered for the defendant. State ex rel. v. McKay, 30 S.W. (2d) 93; Barr v. Railroad Co., 37 S.W. (2d) 929. (6) The court erred in the admission of evidence on behalf of plaintiff. (a) The alleged statements of conductor Moore as to the cause of the collision were inadmissible. 22 C.J. 469; Atkinson v. Am. School of Osteopathy, 240 Mo. 338; Koenig v. Railway Co., 173 Mo. 698; Redmon v. Street Ry. Co., 185 Mo. 1; Fry v. Ry. Co., 200 Mo. 377; State v. Daues, 19 S.W. (2d) 700.

Thomas C. Swanson, Trusty & Pugh and Mosman, Rogers & Buzard for respondents.

(1) The action is maintained by the proper parties. (a) Appellant has failed to properly preserve the question for review. The statement in its Point I, under points and authorities, is an abstract statement of law and insufficient to preserve the issue for review. Mahmet v. Am. Radiator Co., 294 S.W. 1014; Rusch v. Valle, 237 S.W. 111; State ex rel. v. Caldwell, 276 S.W. 631. Assignment of error No. 2, in respect to refused Instructions 4 and 5, is not carried forward to or developed in appellant's points and authorities, and hence, preserves no issue for review. Mahmet v. Am. Radiator Co., supra; Capone v. Wells, 261 S.W. 948; Norton v. Davis, 265 S.W. 111. No complaint is made by appellant in points and authorities of the refusal of its demurrer or instructions on this question. Hence, the same is waived. J.B. Colt Co. v. Gregor, 11 S.W. (2d) 1098; Wearen v. Woodson, 268 S.W. 648. Appellant fails to complain of respondent's Instruction 2 and thereby waives this proposition. Mason v. Wilks, 288 S.W. 936; Atchison v. Railroad Co., 46 S.W. (2d) 231. (b) Under the law of Kansas, the plaintiff, Scott, had the right to bring this action against defendant (negligent third party), and the payment of compensation to Scott, is of no concern to defendant. Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784; Early v. Burt, 134 Kan. 445, 7 Pac. (2d) 95; Jolley v. United P. & L. Corp., 131 Kan. 102, 289 Pac. 962; Riddle v. Higley Motor Co., 252 Pac. 231, Scott and the Travelers Insurance Company, being the sole interested parties, are properly joined as plaintiffs. Secs. 700, 702, R.S. Mo. 1929; Secs. 60-410, 60-412. R.S. Kan. 1923. (2) The question of Scott's alleged contributory negligence is not properly before this court for review. (a) Point 2 of appellant's brief, is a mere abstract statement and presents nothing for review. Mahmet v. Am. Radiator Co., supra; Rusch v. Valle, 237 S.W. 111; State ex rel. v. Caldwell, 276 S.W. 631. Defendant did not preserve the question by demurrer, and hence, waived that issue. Refusal of any demurrer or instruction is not complained of under Point 2. Defendant's demurrer on contributory negligence, strikes at all rights of recovery including the right under the last chance rule. It is not limited to primary negligence, hence, it is waived. Anderson v. Davis, 284 S.W. 439; Ramsey v. Miss. River & Bridge Term. Co., 253 S.W. 1081; Aeby v. Railroad Co., 285 S.W. 965; Bell v. Terminal Ry. Assn., 18 S.W. (2d) 40. (b) The question of Scott's alleged contributory negligence was one for the jury. The evidence viewed most favorably in his behalf shows that: (1) He was keeping a sharp lookout for his own safety. (2) The truck was practically stopped before going on the tracks. (3) He was listening carefully for signals for the approach of a train. (4) Oil tanks and the sun obstructed his view to the west. (5) There was no watchman flagging the crossing in keeping with the long established custom of the defendant to maintain a flagman at the crossing and its own book of rules. (6) There was no warning of the approach of the train. (7) He had no knowledge or means of knowledge of the approach of the train. Therefore, he is not negligent in failing to discover the approach of the train. Railroad Co. v. Hansen, 78 Kan. 278, 96 Pac. 668; Railroad Co. v. Assman, 78 Kan. 424, 96 Pac. 843; Kindig v. Railroad Co., 133 Kan. 459, 1 Pac. (2d) 75; Polfer v. Railroad Co., 130 Kan. 314, 286 Pac. 240; McClain v. Railroad Co., 89 Kan. 24, 130 Pac. 646; Torgeson v. Railroad Co., 124 Kan. 798, 262 Pac. 564; Sing v. Railroad Co., 30 S.W. (2d) 37; Scott v. Railway Co., 113 Kan. 477, 215 Pac. 280; Peterson v. Railway Co., 115 Kan. 751, 225 Pac. 116; Bollinger v. Schaff, 113 Kan. 124, 213 Pac. 644. (c) In the absence of knowledge of the fact that defendant would violate the custom of maintaining a watchman at the crossing, Scott had a right to rely upon observance of the custom. Rigley v. Prior, 233 S.W. 828; Koonse v. Railroad Co., 18 S.W. (2d) 467; Nicholson v. Railroad Co., 297 S.W. 996; Lackey v. United Rys. Co., 231 S.W. 956; Tillery v. Harvey, 214 S.W. 246; Linders v. Peoples, etc., Co., 32 S.W. (2d) 580; Carbaugh v. Railroad Co., 2 S.W. (2d) 195; Curlin v. Railroad Co., 232 S.W. 215; State ex rel. Peters v. Reynolds, 214 S.W. 121. (3) Appellant's point that Instructions 3, 4 and 6, conflict with Instruction D. and therefore, constitutes error, is wholly insufficient to present any question for review. Nolen v. Halpin-Dwyer Const. Co., 29 S.W. (2d) 220; Mahmet Case, supra; Linneman v. Hawkins. 27 S.W. (2d) 1051. Instruction D given for defendant, was improper and erroneous in that it told the jury that Scott was guilty of negligence as a matter of law. It was, therefore, erroneous. Error cannot be predicated upon alleged conflict where complaining party's instruction is erroneous. 38 Cyc. 1711; Farrell v. Fire Ins. Co., 66 Mo. App. 166; Lohse & Miller v. Ry. Co., 44 Mo. App. 650. The evidence clearly established a case for plaintiffs on the last chance or inescapable peril theory. There was ample opportunity for the defendant to have stopped its train after it came into collision with the truck and before Scott was injured. Dunlap v. Railroad Co., 87 Kan. 197, 123 Pac. 754; Muir v. Fleming, 116 Kan. 551, 227 Pac. 536. (4) Instruction 8, offered by the defendant, was properly refused. (a) The alleged error should not be considered for the reason that appellant has failed to set out the instruction or the substance of it or to refer to the place in the record where it can be found, or to specify any alleged ground of error in the refusal of it and the assignment is insufficient. Hunt v. Hunt, 270 S.W. 369, 307 Mo. 375; Standard Scale Co. v. Reames, 258 S.W. 451; Mahmet v. Radiator Co., supra. (b) Refused Instruction 8, is improper in form because: (1) It assumes that the casualty was "an accident."...