Shepherd v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 22 June 1934
• Docket Number: 31830
• Citation: Shepherd v. Chicago, R. I. & P. Ry. Co., 335 Mo. 606, 72 S.W.2d 985 (Mo. 1934)
• Parties: James M. Shepherd v. Chicago, Rock Island & Pacific Railway Company and Louis Steinsick, Appellants
• Court: Missouri Supreme Court

72 S.W.2d 985

335 Mo. 606

James M. Shepherd v. Chicago, Rock Island & Pacific Railway Company and Louis Steinsick, Appellants

No. 31830

Supreme Court of Missouri

June 22, 1934

Appeal from Grundy Circuit Court; Hon. A. G. Knight, Judge.

Reversed.

Luther Burns, Henry S. Conrad, L. E. Durham, Hale Houts, I. M Lee and R. E. Kavanaugh for appellants.

(1)The court erred in refusing to give the peremptory instruction directing a verdict for defendants and each of them requested by defendants at the close of all the evidence.The evidence was insufficient to make a case even under the humanitarian doctrine.Bode v. Wells,322 Mo. 396;Phillips v. Ry. Co.,226 S.W. 865;Kinard v Westerman,279 Mo. 688;Bollinger v. St. L.-S. F. Ry. Co.,334 Mo. 720;Highfill v. Wells,16 S.W.2d 103;Schupback v. Meshevsky,300 S.W. 467;Weltner v. Bishop171 Mo. 116;Dyrcz v. Railroad,238 Mo. 47;State ex rel. Lusk v. Ellison,271 Mo. 472;Boyd v. Ry. Co.,105 Mo. 382;Sullivan v. Ry. Co.,317 Mo. 1009;Clay v. Ry. Co.,5 S.W.2d 412;Threadgill v. Rys. Co.,214 S.W. 161;Monroe v. Ry. Co.,249 S.W. 644.(2) The motor vehicle law requiring a driver of a motor car to exercise the highest degree of care supersedes the humanitarian doctrine, and plaintiff's violation of the requirement was a complete bar.It also required the giving of defendant's instructions G, H, I, J and K. Sec. 7775, R. S. 1929;Gude v. Weick Bros. Undertaking Co.,16 S.W.2d 60;Hults v. Miller, 299 S.W. 85.

Pross T. Cross, Maurice P. Murphy and Gerald Cross for respondent.

(1) The evidence made out a submissible case under the humanitarian doctrine, and the court did not err in refusing defendants' peremptory instructions for a directed verdict.Ellis v. Ry. Co.,234 Mo. 630, 138 S.W. 30;Logan v. Ry. Co.,254 S.W. 705;State ex rel. Wabash v. Trimble,260 S.W. 1000;Zumwalt v. Ry. Co.,266 S.W. 717;Allen v. Ry. Co.,281 S.W. 737;Chapman v. Ry. Co.,269 S.W. 688;Clark v. Ry. Co.,6 S.W.2d 954;Koontz v. Railroad Co.,253 S.W. 413;Tavis v. Bush,280 Mo. 387, 217 S.W. 274;Wolf v. Ry. Co.,251 S.W. 441;Murell v. Ry. Co.,279 Mo. 92, 213 S.W. 964;Maginnis v. Ry. Co.,268 Mo. 667, 187 S.W. 1165;Eckhard v. Ry. Co.,190 Mo. 593;Grigg v. Ry. Co.,228 S.W. 508;Monroe v. Ry. Co.,219 S.W. 68;Conley v. Ry. Co.,253 S.W. 426;State ex rel. v. Trimble,263 S.W. 840;Dutton v. Ry. Co.,292 S.W. 718;Spoeneman v. Uhri,60 S.W.2d 9;Chawkley v. Ry. Co.,297 S.W. 24;Gann v. Ry. Co.,6 S.W.2d 39;Pence v. Laundry Co.,59 S.W.2d 633;Dutcher v. Ry. Co.,241 Mo. 137;Hinzeman v. Railroad Co.,199 Mo. 65;Althoge v. Motorbus Co.,8 S.W.2d 924;Anderson v. Davis,284 S.W. 439.Danger zone; what is: The danger zone is not the track itself, but it extends to whatever distance from the tract the enginemen can ascertain that the traveler is oblivious to the approach of the train, or is apparently intending to cross the track.(2) The remedy afforded under the humanitarian doctrine applies to all persons alike, and is available to one who is injured while driving a motor vehicle.And this is true, even though such driver, at the time of his injury, be guilty of negligence in the operation of such vehicle.See authorities under Point 1.

OPINION

Gantt, J.

Action to recover damages resulting from a collision between a passenger train of defendant company and an automobile driven by plaintiff.The other defendant was the engineer of the train.Judgment against both defendants for $ 8,000 for personal injuries and $ 800 for damages to the car.Defendants appealed.

The petition charged a violation of the humanitarian rule in that "the engineer saw and knew, or by the exercise of ordinary care, could have seen and known that plaintiff was in and going into a position of peril in time to have, by the exercise of ordinary care, prevented injury to plaintiff and damage to his automobile by either stopping the train, checking the speed, or giving a warning signal, but that he negligently failed to do so."

The answer was a general denial with an affirmative defense, the consideration of which is unnecessary.The reply was a general denial.Defendant challenges the refusal of its instruction in the nature of a demurrer at the close of the evidence.

The evidence favorable to plaintiff may be stated as follows:

The collision occurred at 6:12 P. M., on November 15, 1927, at the intersection of defendant company's track with Tenth Street in St. Joseph.At the intersection the street is level, paved, smooth, sixty feet wide and without sidewalks.At the time it was foggy, smoky and dark.The intersection was brilliantly lighted.The railroad yards are located five hundred feet west of the intersection and immediately west of Hickory Street.The yards also are brilliantly lighted.Other lights are west of the intersection and along the main line tracks.On a foggy, smoky night the headlight of an engine in the vicinity of the yards five hundred feet west of Tenth Street crossing may be taken by a person on said crossing for a stationary light in said yards.There was testimony by a witness for plaintiff that on such a night a person looking westward from said crossing would not know that a train was approaching until the engine was seventy-five feet from the crossing.

Tenth Street runs north and south and is intersected by five railroad tracks.The north track is the defendant company's track and where the collision occurred.The Burlington passenger track intersects said street forty-six feet south of defendant company's track.The Santa Fe track intersects said street forty-two feet south of the Burlington passenger track.The first Burlington freight track intersects said street eighty-three feet south of the Santa Fe track.The second Burlington freight track intersects said street seven feet south of the first Burlington freight track.The distance between the rails of the tracks is five feet, eight inches.It is about two hundred feet from the south rail of the south Burlington freight track to the south rail of defendant company's track.The watchman's shanty is on the east side of the street and between the Santa Fe track and Burlington passenger track.There was no watchman on duty at the time plaintiff drove across the intersection.Residences and other buildings are located on the west side of the street and south of the Burlington freight tracks.The three north tracks cross the street in a northwesterly and southeasterly direction.

Defendant's train of three coaches and an engine approached the intersection from the northwest.It originated at the Union Station about a mile northwest of the crossing and moved in a southeasterly direction to the point of collision at a speed of ten miles an hour.It could have been stopped in ten to fifteen feet.The headlight on the engine and the lights in the coaches were lighted.There was no warning signal by either the engine bell or whistle.Plaintiff was seventy-one years of age, with good eyesight and hearing.In driving the automobile he was seated on the left side, and no one was in the automobile with him.The headlights on the automobile were lighted.Plaintiff was familiar with the intersection and knew that a train on defendant company's track might, at any time, approach from the west and proceed over the crossing.As he approached the intersection from the south he lowered the window on his left that he might have a better view of the tracks toward the west.He then drove the automobile on the east side of the street and at a speed of eight to ten miles an hour to the point of collision.He could have stopped the automobile in two to four feet.As he proceeded across the tracks he continued to look east and west for approaching trains.About this time the automobiles on Tenth Street approached the crossing from the north and stopped north of the north rail of defendant company's track to permit said train to proceed over the crossing.It is one of the theories of plaintiff that the headlights on these automobiles tended to blind him.He did not so testify.However, a witness who made observations at the crossing testified that the headlight on an automobile approaching the crossing from the north tended to blind a person on the crossing.On the question of visibility plaintiff testified that he could not see the headlight of the engine and the lights in the coaches because of the foggy and smoky condition of the atmosphere; that he could not see west of the west line of...