Smith v. St. L.-S.F. Railway Co.

• Decision Date: 06 October 1928
• Docket Number: No. 26831.,26831.
• Citation: 9 S.W.2d 939
• Parties: B. HUGH SMITH, Administrator of Estate of JAMES HALEY, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

9 S.W.2d 939

B. HUGH SMITH, Administrator of Estate of JAMES HALEY, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 26831.

Supreme Court of Missouri. Division Two.

October 6, 1928.

Appeal from Cape Girardeau Circuit Court. — Hon. Frank Kelly, Judge.

AFFIRMED.

E.T. Miller, Kenrick Burrough and Ward & Reeves for appellant.

(1) The court erred in holding that it was error for the trial court to give Instruction No. E, being a demurrer to plaintiff's cause of action based upon the humanitarian doctrine. Plaintiff offered no testimony that the train could have slackened its speed or could have stopped. The only theory plaintiff could advance was that defendant's employees could have given the signal when they saw the peril of the deceased, but since plaintiff's proof shows that the signal was given as soon as the car was in sight, that takes out of the case the humanitarian doctrine. Under the plea of humanitarian doctrine plaintiff admits the negligence of the deceased, and must go further and show when the perilous position arose, and where the train was at the time, and that the operators of that train could, after the car came into the danger zone, with the means and appliances at hand, have prevented the injury, and unless plaintiff made such proof, Instruction E as a demurrer was properly given. Sullivan v. Railroad, 297 S.W. 945; Grief v. Lead Co., 274 S.W. 83; Pedago v. Railroad, 272 S.W. 1029; Dyrez v. Railroad, 238 Mo. 33; Betz v. Railroad, 253 S.W. 1089; Sorrell v. Railroad, 247 S.W. 462; Keel v. Railroad, 258 Mo. 62; Tannehill v. Railroad, 279 Mo. 158; Bibb v. Grady, 231 S.W. 1020; Murray v. Co., 238 S.W. 838; Freie v. Railroad, 241 S.W. 671; Roseman v. Railroad, 251 S.W. 104; Beal v. Railroad, 256 S.W. 733; Henson v. Railroad, 301 Mo. 415. The mere probability that the accident might have been avoided or the fact that the defendant's employees were guilty of some negligence, will not bring into play the humanitarian rule when the evidence shows gross negligence on the part of the deceased, as in this case. Hawkins v. Railroad, 135 Mo. App. 535; Markowitz v. Railroad, 186 Mo. 358; Carrier v. Railroad, 175 Mo. 470; Hunt v. Railroad, 262 Mo. 277. Where plaintiff's own evidence precludes a recovery under the humanitarian rule, he cannot aid his case by taking portions of certain testimony of a witness for defendant while rejecting other portions. And this is especially true if plaintiff's only eyewitness testifies to a state of facts which shows plaintiff is not entitled to recover. Anderson v. Davis, 251 S.W. 89; Tannehill v. Railroad, 279 Mo. 172. (2) The court erred in sustaining motion for new trial because it gave Instructions O, P, Q, and S. The reason given by the court for sustaining the motion for new trial because it had given the jury on behalf of the defendant said instructions is that said instructions improperly define the duties of James Haley as a guest and his liability for contributory negligence. These instructions properly declared the law, notwithstanding there are some statements of the court of appeals upon a different state of facts that misled the trial judge. (a) A guest is not ordinarily required to use the same vigilance as required of the driver, and is not chargeable with negligence of the driver, but is required to use that degree of care that an ordinarily prudent person would use under similar circumstances. Chapman v. Railroad, 269 S.W. 688; Corn v. Railroad, 228 S.W. 78; Betz v. Railroad, 253 S.W. 1093; Boyd v. Railroad, 291 Mo. 622; Allen v. Railroad, 281 S.W. 741; Nahorski v. Railroad, 310 Mo. 227; Friedman v. Railroad, 293 Mo. 243; Lawrence v. Railroad, 258 S.W. 56; Chawkley v. Ry. Co., 297 S.W. 20. (b) If in the exercise of common prudence he knew or should have known of the danger and that the driver was apparently taking no cognizance of it, or was taking no precaution in regard thereto, it was plaintiff's duty to warn him, or call his attention to it in some way. He could not negligently abandon the exercise of his own faculties and, without taking any precaution of his own or making any effort whatever, resign himself absolutely to the driver's care, regardless of the visible lack of ordinary caution on the latter's part, and relieve himself of the consequences of his own negligence by hiding behind the fact that the other man was driving. Burton v. Pryor, 198 S.W. 1120; Durbin v. Railroad, 275 S.W. 361; Chapman v. Railroad, 269 S.W. 688; Fechley v. Traction Co., 119 Mo. App. 366; Landrum v. Railroad, 178 S.W. 276; Sorrell v. Railroad, 247 S.W. 462; Stotler v. Railroad, 200 Mo. 144; Leapard v. Railroad, 214 S.W. 268; Sullivan v. Railroad, 297 S.W. 945. (c) But in this case the plaintiff's own proof showed that the guest rode in this car with the understanding and the agreement that he would look out for his own safety, and thereupon the rule does not apply that he could rely on the skill of the driver.

Spradling & Dalton for respondent.

(1) The respondent made a case for the jury, and the court correctly overruled the demurrer both at the close of plaintiff's case and at the close of all the evidence in the case. Peppers v. Ry. Co., 295 S.W. 757; Boland v. Railway, 284 S.W. 141; Treadway v. Ry. Co., 253 S.W. 1037; Logan v. Ry. Co., 254 S.W. 705; Chapman v. Ry. Co., 269 S.W. 688; State v. Trimble, 260 S.W. 1000; Durbin v. Ry. Co., 275 S.W. 358. (2) Instruction E, given on behalf of appellant, was error. The engineer saw the car going down Kingshighway and saw it turn in on the crossing. The evidence is in conflict as to whether the whistle was blown or the bell sounded. It was the duty of defendant to give an alarm to prevent the automobile from going on track. Logan v. Ry. Co., 254 S.W. 709; Chapman v. Ry. Co., 269 S.W. 690; Smith v. Ry. Co., 282 S.W. 62; State v. Trimble, 260 S.W. 1002. (3) The deceased did not own the automobile. He was not driving it and had no authority or control of it. He was riding in the rear seat and was the guest of the driver, and the negligence of the driver cannot be imputed to him. Boland v. Ry. Co., 284 S.W. 144; Durbin v. Ry. Co., 275 S.W. 360; Schultz v. Wells 264 S.W. 482; Treadway v. Ry. Co., 253 S.W. 1040; Betz v. Ry. Co., 253 S.W. 1093; Simpson v. Wells, 237 S.W. 526; Vogt v. Ry. Co., 251 S.W. 417. This instruction is erroneous in requiring deceased to keep a lookout for the train. Boland v. Ry. Co., supra. (4) The giving of Instruction P was error. (a) It required of deceased the same degree of care that would be required of the driver of the automobile. That burden was greater than the law required him to carry. Durbin v. Ry. Co., 275 S.W. 360; Chapman v. Ry. Co., 269 S.W. 690. (b) It failed to inform the jury that the negligence of the driver could not be imputed to deceased. Peppers v. Ry. Co., 295 S.W. 760. (5) An instruction very similar to Q and R has been condemned by this court. Boland v. Ry. Co., 284 S.W. 143. (6) Instruction S required of deceased a higher degree of care than the law requires of a guest. Cases supra. (7) Instruction T authorized a verdict for defendant if the statutory signals were given, but ignored the common-law negligence. This was error. Goodwin v. Eugas, 236 S.W. 53; Abramowitz v. Ry. Co., 214 S.W. 120; Ruth v. Ry. Co., 70 Mo. App. 200; Bank v. Metcalf, 29 Mo. App. 384. (8) The Marquette Cement Manufacturing Company employed several hundred men, and all the employees, in going to and from work, used the crossing in question. This plant had been in operation for almost twenty years. The defendant had constructed and maintained the crossing in question all that time. On account of the number of people using the crossing, the question as to whether the rate of speed of defendant's train was negligent, was one for jury. Ward v. Ry. Co., 277 S.W. 910; Stepp v. Ry. Co., 85 Mo. 229.

HENWOOD, C.

This is a suit for statutory damages in the sum of $10,000, filed in the Circuit Court of Cape Girardeau County, by the administrator of the estate of James Haley, deceased, in which the negligence of the defendant railway company is alleged as the cause of Haley's death. The trial resulted in a verdict for the defendant, and the court sustained plaintiff's motion for a new trial on the specified grounds that errors were committed in giving to the jury certain instructions, requested by the defendant. The case is here for review on defendant's appeal from the action of the trial court in granting plaintiff a new trial.

The evidence offered by the plaintiff tends to show that on August 11, 1923, the day of the accident in question, defendant's line of railroad from St. Louis, Missouri, to Memphis, Tennessee, extended through the city of Cape Girardeau in a southerly direction, and that State Highway No. 9, known as Kings Highway, ran parallel to and a short distance west of said line of railroad in the vicinity of the plants of the Hely Stone Company and the Marquette Cement Company, which were located about two miles south of the business section of Cape Girardeau. The stone plant was between the railroad and the highway, and the cement plant was about 250 yards south of the stone plant and on the east side of the railroad. There was a gravel road extending in an easterly direction across the railroad from the highway to the cement plant. This road had been used by the employees of the cement company and other persons having business there for sixteen or eighteen years. The railroad crossing was planked and maintained by the defendant in the same way as other railroad crossings, and the usual "Railroad Crossing" sign stood at the northwest corner of this crossing. At that time, this road extended only as far as the cement plant, but formerly, for many years, it extended farther east and south, and was used by persons going to and from "College Farm," near the cement company's premises, and also by travelers of a county road, which crossed the railroad "between one hundred and three...