Sevedge v. Kansas City, St. L. & C. R. Co.

• Citation: 53 S.W.2d 284,331 Mo. 312
• Parties: George Sevedge v. Kansas City, St. Louis & Chicago Railroad Company and Chicago & Alton Railroad Company, Appellants
• Decision Date: 05 October 1932
• Court: United States State Supreme Court of Missouri

53 S.W.2d 284

331 Mo. 312

George Sevedge v. Kansas City, St. Louis & Chicago Railroad Company and Chicago & Alton Railroad Company, Appellants

Supreme Court of Missouri

October 5, 1932

Appeal from Jackson Circuit Court; Hon. S. Stanford Lyon Judge.

Reversed and remanded.

Charles M. Miller for appellants.

(1) The trial court erred in not granting a new trial on account of the false testimony knowingly given by plaintiff's witness, J. F. King. Sec. 1453, R. S. 1919; Dean v Wabash Railroad Co., 229 Mo. 452; Ridge v Johnson, 129 Mo.App. 545. (2) The trial court erred in giving plaintiff's Instruction 3, and further erred in refusing to give defendants' instruction, withdrawing from the jury, as an element of negligence against the defendant, the "reasonable control" and speed of train No. 9, for the reasons (a) the submission to the jury of the speed of the train and not being under "reasonable control," as an element of negligence against defendants, was improper and erroneous, under the facts and circumstances pertaining to the crossing. McGee v. Wabash Railroad Co., 214 Mo. 541; Zumwalt v. Railroad, 71 Mo.App. 670; Grambo v. Railroad, 134 N.E. 648. (b) Plaintiff's Instruction 3, erroneously permitted the jury to find against defendants, even though plaintiff was negligent. (c) Plaintiff's Instruction 3 is improper and erroneous in not defining "danger alarm" and being a roving commission to the jury, and for the further reason there was no evidence to support the alleged issue that a "danger alarm" would have averted the collision, sufficient to make a question for a jury, and would simply leave it to the jury to speculate and conjecture as to the "danger alarm" and effect. (d) Plaintiff's Instruction 3 was improper and erroneous in that the alleged failure to give warning as asserted in the petition, was limited to when plaintiff "was approaching and going upon the track," and the instruction did not follow the petition and made no reference, limiting the alleged failure to give warning to the time when plaintiff "was approaching and going upon the track," and sought to predicate the alleged failure to the time when plaintiff had stopped upon the track and was backing up, preparatory to starting ahead, which made the instruction much broader than the allegations of the petition in this respect, and changed and extended the alleged claim of negligence in this respect. The question of "reasonable control" was also outside the petition. Kirkpatrick v. Met. Ry. Co., 211 Mo. 83; Smith v. Railroad, 126 Mo.App. 123; Quinley v. Traction Co., 180 Mo.App. 302, 165 S.W. 346; Heingle v. Railway, 182 Mo. 529. (3) The trial court erred in giving plaintiff's given Instruction 4, and further erred in refusing to give defendants' instruction, withdrawing from the jury, as an element of alleged negligence against defendants, the alleged failure to slacken and stop the train for the following reasons: (a) There was no evidence upon which to predicate the alleged "slackening and stopping of the train" and further, such an alleged issue left it to mere surmise and conjecture of the jury. Hamilton v. Railroad, 318 Mo. 123, 300 S.W. 792; Clay v. Wheelock, 20 S.W.2d 556; McGee v. Wabash, 214 Mo. 543; Gourley v. Railroad, 35 Mo.App. 92; Quinley v. Traction Co., 180 Mo.App. 307, 165 S.W. 346. (b) Plaintiff's Instruction 4, was broader than the petition in that the instruction did not follow the petition and nowhere limited the alleged slackening and stopping of the speed of the train on the last clear chance theory, to the time when plaintiff was "approaching and going upon the track aforesaid," it being well settled that the charge of negligence cannot be broader than the petition. Kirkpatrick v. Met. St. Ry. Co., 211 Mo. 83; Smith v. Railroad, 126 Mo.App. 123; Quinley v. Traction Co., 180 Mo.App. 302, 165 S.W. 346; Heingle v. Railway, 182 Mo. 529. (4) The trial court erred in giving plaintiff's Instruction 8 pertaining to the automatic electric crossing bell, for the reason that it was bound to lead the jury to believe the automatic electric crossing bell was defective, which was prejudicial to the defendants, as to the bearing it had on whether or not the crossing bell was ringing at the time plaintiff approached the railroad track as a warning of the approach of the train. Strother v. Railway Co., 183 S.W. 658; Gillette v. Laederich, 242 S.W. 114.

Atwood, Wickersham, Hill & Chilcott for respondent.

(1) The trial court did not err in refusing to grant a new trial on account of the alleged false testimony of plaintiff's witness King. Contradiction of King's testimony by defendants' witnesses, mostly on immaterial matters, affords no ground for a claim of false swearing. Defendants' Instruction 28 directed the jury to disregard the testimony of any witness whom the jury might believe had given false testimony. The trial court was invested with a sound discretion in matters of this kind and the record shows no abuse thereof. Neal v. Railways Co., 229 S.W. 218; Dean v. Railroad Co., 229 Mo. 453; Sly v. Railway Co., 134 Mo. 690; Kuint v. Loth-Hoffman Clothing Co., 247 S.W. 237; Powers v. Mut. Life Ins. Co., 91 Mo.App. 69; Steele v. K. C. S. Ry. Co., 257 S.W. 756; Bragg v. Moberly, 17 Mo.App. 226; Byrd v. Vanderburgh, 168 Mo.App. 120; Scott v. Ry. Co., 168 Mo.App. 532; Lafferty v. K. C. Gas Co., 229 S.W. 753; Harris v. Railroad Co., 200 S.W. 112; Callison v. Eads, 211 S.W. 715; 46 C. J. p. 230, sec. 186; Scott v. Railroad Co., 168 Mo.App. 527; Ridge v. Johnson, 129 Mo.App. 541. (2) The court did not err in giving plaintiff's Instruction 3 nor in refusing defendants' Instruction 45. Toeneboehn v. Railroad, 298 S.W. 796; Ward v. Railroad, 277 S.W. 910. (3) The court did not err in giving plaintiff's Instruction 4 nor in refusing defendants' Instruction 44. Zumwalt v. Railroad Co., 266 S.W. 725; Dutcher v. Railroad, 241 Mo. 162; Chawkley v. Railroad, 317 Mo. 797; Chapman v. Railroad, 269 S.W. 688. (4) Plaintiff's Instruction 8 was proper because, there was abundance of evidence that the electric crossing bell did not ring before the collision. Many conditions might have caused the bell not to ring, such as electrolysis, worn contact points, or a "speck of dirt" between contact points, although there might not be anything about the bell itself otherwise defective. Clearly such instruction was proper under the evidence. Bachman v. Railroad, 274 S.W. 764. (5) The trial court properly permitted Mrs. Sevedge, the wife of plaintiff, to testify. Revised Statutes 1921, approved March 29, 1921, being a procedural and remedial act and authorized the reception of this testimony. Hughes v. Renshaw, 282 S.W. 1020; Howard v. Strode, 242 Mo. 227; O'Bryan v. Allen, 108 Mo. 231. (6) The verdict was not excessive. Dell v. J. A. Schaefer Const. Co., 29 S.W.2d 76; Porter v. Railroad Co., 28 S.W.2d 1035; Emerson v. Mound City, 26 S.W.2d 766; Messing v. Judge & Dolph Drug Co., 18 S.W.2d 408; Wheeler v. Railroad Co., 18 S.W.2d 494; Maher v. Donk Bros. Coal & Coke Co., 20 S.W.2d 888; Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W.2d 982; Gould v. Railroad Co., 290 S.W. 135, 315 Mo. 713; Skinner v. Davis, 280 S.W. 37, 312 Mo. 581; Hoffman v. Peerless White Lime Co., 296 S.W. 764, 317 Mo. 86; Timmermann v. St. L. Arch. I Co., 1 S.W.2d 791, 318 Mo. 421.

Atwood, C. J. All concur, except White, J., who dissents.

OPINION

ATWOOD

This case fell to the writer on reassignment after having been argued and submitted once in division and twice in banc. It is an action for personal injuries alleged to have been sustained by respondent, George L. Sevedge, in a collision with a passenger train operated by the Chicago & Alton Railroad Company, as lessee, over the tracks of the Kansas City, St. Louis & Chicago Railroad Company. The trial resulted in a judgment in favor of plaintiff for $ 12,500, from which defendants have appealed.

It appears from the evidence that plaintiff and one John Lewis were driving north in an automobile on Arlington Avenue which crossed defendants' railroad track in a rather thickly populated community about half way between Independence, Missouri, and Kansas City, Missouri. The highway ran north and south and the railroad extended in a southeasterly and northwesterly direction. East of this crossing and at a distance variously estimated from 200 to 1000 feet the railroad track curved to the south. West of the crossing it curved to the north. A street car track crossed under the railroad track about seventy-five feet southeast of the Arlington Avenue railroad crossing, and then crossed Arlington Avenue about 100 feet south of the Arlington Avenue railroad crossing. Plaintiff and his companion drove from the northwest into Arlington Avenue about seventy-five feet south of the railroad crossing and started north toward the crossing. The railroad track was on a high grade at that point and the highway approach from the south was steep. Plaintiff and his companion testified that the morning was foggy and they could see only a short distance on the railroad track. They said they stopped when they got about fifteen feet from the track and looked both ways but could see no train; that they then started over the railroad crossing and were struck by a train coming from the southeast. Plaintiff's companion who was driving the car thus described what happened:

"Q. Tell what happened on the crossing there where you were hit? A. As I drove up on the crossing I noticed the plank was loose. I drove very slow, had my car in low, and I got my right front wheel over the north rail, and something grabbed my steering wheel, and took me down the track there, and when I got my car stopped, I was about two feet or three feet off the plank, at the side of the crossing.

"Q. You started...