Sorrell v. Payne

• Decision Date: 29 January 1923
• Docket Number: No. 297I.,297I.
• Citation: 247 S.W. 462
• Parties: SORRELL v. PAYNE, Agent.
• Court: Missouri Court of Appeals

247 S.W. 462

SORRELL v. PAYNE, Agent.

No. 297I.

Springfield Court of Appeals. Missouri.

January 29, 1923.)

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by William Sorrell against John Barton Payne, Agent, under Transportation. Act, § 206 (41 Stat. 461). Verdict for defendant, and from an order granting a new trial, defendant appeals. Reversed and remanded, with directions.

W. F. Evans, of St. Louis, and Ward & Reeves, of Caruthersville, for appellant.

Parris & Munger, of Bloomfield, for respondent.

COX, P. J.

Action for personal injuries caused by an automobile being struck by a train at a crossing on the St. Louis & San Francisco Railroad near the depot in the city of Bloomfield. A trial was had before a jury, and a verdict rendered for defendant. Plaintiff filed a motion for new trial., which was sustained by the court, and defendant appealed.

The court in its order sustaining plaintiff's motion for new trial stated that the court had committed error in giving instructions 4, 6, and 8 on part of defendant, and based his conclusion upon the case of Corn v. Kansas City, C. C. & St. J. Ry. Co. (Mo. Sun.) 228 S. W. 78.

In reviewing the action of the trial court in sustaining the motion for new trial in this case and determining whether the trial court was right in his conclusion that error had been committed in giving instructions 4, 6, and 8 for defendant, it will only be necessary to call attention in a general way to the petition, evidence, and instructions.

The petition alleged negligence on the part of those in charge of the train in not giving proper signals by sounding the whistle or ringing the bell when approaching the crossing, by running at a speed greater than eight miles per hour in violation of an ordinance of the city of Bloomfield and a failure to keep a vigilant lookout for persons who might be in danger of being struck by the train at the crossing. It is also asserted by plaintiff that a cause of action on the humanitarian rule was stated in the petition. The allegation of the petition on which that contention is based is as follows:

"Plaintiff further states that the trainmen in charge of said train saw, or by the exercise of ordinary care could have seen, plaintiff coming upon said crossing, and so near thereto as to be in a perilous position from said train in time to have so handled said train and its appliances by the use of ordinary care as to have prevented any injury to plaintiff."

The crossing in question was not on the main line of the railroad, but was on what is called the "mill track." It appears to have been a track running from the main line some distance to and connecting with a mill. The crossing was on the road generally used by vehicles in going to the depot on the main line. At the crossing the track ran practically north and south and the wagon road east and west. A warehouse stood on the east side of the track and south of the wagon road. This building was about 30 feet by 90 feet, with the long way north and south paralleling the railroad track, and about 7 feet from it and about 35 feet south of the traveled part of the wagon road. Some 30 feet east of this building was another smaller building about the same distance from the wagon road. There were fences covered with vines and trees that would obstruct the view and might prevent a person traveling on the wagon road from seeing the train as he approached the railroad crossing, but there were places from which the train could be seen for some distance back from the crossing. Plaintiff testified that he began looking for the train when 300 feet from the crossing and continued to look, and that he saw a train and heard the whistle for the first time when near the small building and about 75 to 100 feet from the railroad track. Plaintiff was riding in a Ford car driven by J. M. Cook, and as a guest of Mr. Cook. He was sitting in the front seat beside the driver, and the automobile was traveling about eight miles per hour. He further testified that when he discovered the train he spoke to the driver about it, but he did not seem to hear him, and he then spoke again, and at that time they were near the track, and Mr. Gook attempted to stop his car. The plaintiff thought there would be a collision and got out of the car as quickly as he could, and attempted to get away, but the engine struck the automobile and knocked it against him and injured him. Witnesses for defendant testified that plaintiff and Mr. Cook appeared to be talking to each other, and not looking for the train until they were very near to the track. Such other facts as it may be necessary to mention will be noticed later.

The instructions Nos. 4, 6, and 8 given on behalf of the defendant which the court, on the authority of the Corn Case supra, thought were erroneous are as follows:

"(4) The court instructs the jury that under the law it is the duty of a guest, or one who rides at the invitation of another in an automobile, when approaching a railroad track to use ordinary care for his own protection and safety; so you are instructed in this case that, if you find and believe from the evidence that the plaintiff in approaching the railroad track mentioned in the evidence did not look or listen for the approach of a train a reasonable distance from the railroad track so that he could, by the exercise of ordinary care, have informed the driver of said automobile of the approaching train in time to have prevented the. collision with the train, then if you so find the facts, you will find the issues for the defendant."

"(6) The court instructs the jury that under the law and evidence in this case J. M. Cook was guilty of negligence in approaching the railroad crossing in question without looking for the approach of a train; and, if you further find and believe from the evidence that the said negligence of said Cook caused the plaintiff's injury, and that said injury was not caused or contributed to...