See v. Wabash R. Co., 41865

• Court: Missouri Supreme Court
• Writing for the Court: LEEDY
• Citation: See v. Wabash R. Co., 242 S.W.2d 15, 362 Mo. 489 (Mo. 1951)
• Decision Date: 10 September 1951
• Docket Number: No. 2,No. 41865,41865,2
• Parties: SEE v. WABASH R. CO. et al

Page 15

242 S.W.2d 15

362 Mo. 489

SEE v. WABASH R. CO. et al.

No. 41865.

Supreme Court of Missouri, Division No. 2 Sept. 10, 1951.

Ninian M.Edwards, N. Murray Edwards, St. Louis, for appellant.

Albert E. Schoenbeck, St. Louis, for defendant-respondent Wabash R. co.

Eugene S. Davis, St. Louis, for defendant-respondent Andrew J. Richey.

LEEDY, Presiding Judge.

Action by Bertha See against Wabash Railroad Company and Andrew J. Richey, its locomotive engineer, to recover for the alleged wrongful death of her husband, Alva, resulting from a truck-train collision at a railroad crossing. Verdict and judgment for defendants, and plaintiff appeals.

Abandoning all charges of primary negligence, plaintiff submitted the care solely upon humanitarian negligence in failing to slacken speed or to sound a timely and adequate warning. Her assignments on this appeal relate exclusively to the giving of certain of defendants' instructions. Defendants (as respondents) contend, first, that any error in the instructions was harmless for the reason plaintiff failed to make a case for the jury, and, therefore, the court erred in overruling their (joint) motion for a directed verdict.

Dismissal of this appeal would be justified for failure of the appellant to comply with those provisions of rule 1.08 respecting a statement of the facts. Subsection (a) of that rule requires that the brief for appellant shall contain: '(2) A fair and concise statement of the facts without argument.' Subsection (b), elaborating on the subject, says this: 'The fair and concise statement of the facts shall be in the form of a statement of the facts relevant to the questions presented for determination. * * * If desired, such statement may be followed by a statement of testimony of each witness relevant to the points presented.' Here we have no 'statement of the facts' as such. There is set out, under the caption 'The Evidence,' what purports to be a resume of the testimony of each witness. This is permissible, under paragraph (b), as to facts relevant to the points presented, but only where the same follows the fair and concise statement required by paragraph (a). But we do not dismiss the appeal in this particular instance because defendants, apparently not satisfied with plaintiff's statement, made their own, and in doing so offended as much as had plaintiff.

Apparently the only eyewitness to the collision was the individual defendant Richey. As nearly as we are able to understand plaintiff's position, she relies mainly upon Richey's extrajudicial admissions (which were inconsistent with his position at the trial) and the favorable portions of his testimony at the trial, and inferences therefrom. On the other hand, defendants' brief makes no reference whatever to the most damaging of these admissions (that the truck did not stop, but 'kept on'), but argues the question of submissibility from the standpoint of the evidence most favorable to defendants, as developed at the trial. As no distinction is sought to be drawn as between the corporate and individual defendants touching the submissibility of plaintiff's case, and in view of the briefs on the question, we have concluded to go no further than to determine whether plaintiff made a case against either defendant on either of the alternative charges mentioned. In doing so, the evidence in defendant' favor is to be disregarded, and only that favorable to plaintiff, together with any and all reasonable inferences therefrom, will be considered. Plaintiff is, of course, entitled to the aid of any evidence offered by defendants which is favorable to her, and not in conflict with the fundamental theory of her case.

Plaintiff's husband was killed when the 1935, 1 1/2 ton, short wheel base, Chevrolet dump truck he was driving westwardly was struck by a northbound Wabash passenger train at Porter's crossing, a public crossing located in the country about three or four miles north of Montgomery City, Mo. The casualty occurred about 10:30 A. M., on April 17, 1948. The sun was shining, and the roads and track were dry. The train, a local, running about 25 minutes late, consisted of an engine, tender, two baggage cars, and one coach, its over-all length being about 300 feet. Deceased, 69 years of age, was a junk dealer. He used a hearing aid. It was found (broken) on his person after the collision. A son testified that his father's hearing with the hearing aid was very good. Another witness testified that about two weeks before the accident, deceased was having trouble with his hearing aid, and that he had gotten a new one a day or two before he was killed; that the new one was 'working fine,' and that deceased could hear 'good' with it, and carry on a normal conversation. His son testified he last saw his father alive a little after 10 A. M., on the morning in question, as he was driving north out of Montgomery City on State Highway No. 19 in his truck, the windows of which were open at that time.

The railroad track and the state highway just mentioned which parallels it on the east will be referred to as running north and south. The intersecting gravel road, known as Porter's road, whereon the collision took place, will be referred to as running east and west. The plat shows there is some slight deviation in these directions, but for practical purposes it is not inaccurate to so designate them. The gravel road intersects the state highway a short distance east of the crossing. The paved portion of the state highway is a 20-foot concrete slab, and the distance between the west edge of the concrete slab and the center of the track (measured at right angles) is 68.2 feet. The railroad and the state highway are substantially level, but there is a difference in elevation between the two, the railroad being much higher. Plaintiff's evidence tended to show this difference to be 8 or 9 feet, whereas defendant's civil engineer testified it was 6.7 feet. The gravel road is narrow at the crossing (two vehicles cannot cross at the same time), but a short distance ot the east thereof its width increases, by sharply opening or flaring out, both to the north and south, so that at the point where it connects with the state highway it is approximately 100 feet in width. Viewed on the plat, the gravel portion of this junction has the appearance of a cross-section of a funnel, the narrow part at the crossing resembling the tube, and the flared out portion, the conical part. After going over the crossing, the gravel road extends on to the west, and on that side, too, its elevation is lower than that of the railroad. Defendants' evidence was to the effect it was 3.7 feet lower at a point 50 feet west of the track. It was further shown that not until a motorist approaching the crossing from the east is half way up the ramp or incline can he see over the railroad embankment, and observe traffic approaching from the opposite direction.

From the southernmost tip of the gravel (of Porter's road) along the west edge of the concrete slab north and westwardly along the vehicular course up to the crossing is about 80 feet. Starting 66 feet south of the crossing, both the railroad and the state highway curve to the east. This curve is gradual (1%), and from the photographs it appears that the distance between the track and highway continues to be uniform. Plaintiff's own evidence shows that visibility at the crossing is good, it being uncontroverted that for a distance of more than one-half a mile south of the crossing there is nothing (other than telegraph poles) to obstruct the view.

Several witnesses called by plaintiff testified to the effect that no whistle was sounded, or other alarm given prior to the collision. Defendant Richey, testifying for defendants, stated that from his seat on the right (or east) side of the engine (some 12 feet above the rails) he could see the crossing a mile and a half away, as he approached it from the south; that he first saw the truck (as it was proceeding north along the state highway) when it started to turn left off of the slab and onto the gravel at the extreme south end of the intersection, a point referred to above as being about 80 feet from the crossing. He estimated that the train was then 400 feet south of the crossing. He fixed its speed as from 65 to 68 m. p. h., the figure shown by the speedometer which he observed about the time he saw the truck. He estimated the speed of the truck to be 4 or 5 m. p. h.

His version at the trial (parts of which are inconsistent with his prior statements) was to the further effect that the truck proceeded along the gravel road toward the crossing at the same rate of speed, and stopped when within 8 or 10 feet of the near rail; that he 'thought he was going to stay there until we crossed, but he started up [when the front end of the engine was 90 or 100 feet from the crossing], and when I seen him start to go across I grabbed the brake and put it in emergency. * * * As soon as I seen him start, I figured he couldn't make it.' The collision followed, and the train came to a stop with the rear end about 800 feet north of the crossing. He testified that he began to whistle for the crossing at the whistling post a quarter of a mile south of the crossing, and he continued to whistle until the engine struck the truck. Asked on cross-examination if, from the point 400 feet south of the crossing where he first saw the truck, he continued 'to go 65 to 68 miles an hour down to within 90 or 100 feet of Porter's crossing,' the witness stated, 'Well, * * * I was a-watching that car and I didn't look at the speedometer at that time. I was watching because I was wondering what the man was going to do.' It was his judgment that there was no appreciable deceleration in the speed of the train after applying the emergency brake and before the train reached the crossing.

The prior inconsistent statements on the part of the engineer which plaintiff...