Stark v. Berger

• Decision Date: 07 March 1939
• Docket Number: 34627
• Citation: 125 S.W.2d 870,344 Mo. 170
• Parties: Mollie Stark v. G. R. Berger; J. M. Kurn and John G. Lonsdale, Trustees of the St. Louis-San Francisco Railway Company, Appellants
• Court: Missouri Supreme Court

125 S.W.2d 870

344 Mo. 170

Mollie Stark v. G. R. Berger; J. M. Kurn and John G. Lonsdale, Trustees of the St. Louis-San Francisco Railway Company, Appellants

No. 34627

Supreme Court of Missouri

March 7, 1939

Appeal from Circuit Court of St. Louis County; Hon. Fred E Mueller, Judge.

Reversed.

Joseph W. Jamison, A. P. Stewart and A. E. L. Gardner for appellants.

(1) The engineer in charge of the oncoming locomotive and train of cars had the right to assume that the driver of the slowly approaching automobile truck would stop before going on the railroad tracks, and owed no duty to slacken speed of train until it was, or should have been, apparent to him that the driver of the automobile did not intend to stop, or was oblivious to his imminent peril. Worth v. St. L.-S. F Ry. Co., 334 Mo. 1025, 69 S.W.2d 672; Clark v. Ry Co., 319 Mo. 879; Elkins v. St. Louis Pub. Serv. Co., 74 S.W.2d 600; State ex rel. Ry. Co. v. Reynolds, 289 Mo. 489; Lackey v. United Rys. Co., 288 Mo. 120; Markowitz v. Ry. Co., 186 Mo. 350. (2) It was error to give plaintiff's Instruction 2 for the reason that the case being submitted to the jury only on the charge of negligence under the humanitarian rule, Instruction 2 injected into the case the issue of plaintiff's contributory negligence, which was an issue wholly foreign to the case and was prejudicially erroneous, confusing and harmful. Wholf v. Kansas City, etc., 335 Mo. 520, 73 S.W.2d 198; Willhauck v. Chicago, R. I. & P. Ry. Co., 332 Mo. 1165, 61 S.W.2d 339; Wolfson v. Cohen, 55 S.W.2d 680; Pence v. Kansas City Laundry Serv. Co., 332 Mo. 930, 59 S.W.2d 638; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 395; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Schulz v. Smericina, 318 Mo. 486, 1 S.W.2d 120; Thompson v. Quincy, O. & K. C. Ry. Co., 18 S.W.2d 405; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 789; State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W.2d 420.

Cave & Hulen, Forrest Hemker and Taylor, Mayer & Shifrin for respondent.

(1) Where error is asserted in overruling defendants' demurrer to the evidence, appealing party must bring all evidence before appellate court. Bertke v. Hoffman, 50 S.W.2d 108, 330 Mo. 584; Reed v. Peck, 163 Mo. 337, 63 S.W. 734; O'Malley v. Heman Const. Co., 255 Mo.App. 392, 164 S.W. 565. (a) The evidence authorized submission of this case to the jury on question of railroad operators' negligence under the humanitarian doctrine, in failing to slacken the speed, in time to avert a collision with truck, after it entered the danger zone. Hinds v. C., B. & Q. Ry. Co., 85 S.W.2d 171; Womack v. Mo. Pac. Ry. Co., 337 Mo. 1160, 88 S.W.2d 371; Hencke v. St. Louis & H. Ry. Co., 335 Mo. 393, 72 S.W.2d 800; Homan v. Mo. Pac. Ry. Co., 334 Mo. 61, 64 S.W.2d 624; Chapman v. Mo. Pac. Ry. Co., 217 Mo.App. 312, 269 S.W. 690; Salisbury v. Quincy, O. & K. C. Ry. Co., 268 S.W. 900; Logan v. C., B. & Q. Ry. Co., 300 Mo. 611, 254 S.W. 711; Goben v. Quincy, O. & K. C. Ry. Co., 206 Mo.App. 5, 226 S.W. 633; Sandry v. Hines, 226 S.W. 648; Peterie v. Ry. Co., 177 Mo.App. 365, 164 S.W. 254; Willhauck v. Chicago, R. I. & P. Ry. Co., 332 Mo. 1165, 61 S.W.2d 338; Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 355. (2d) Respondent's Instruction 2, which told the jury that if they found issues in favor of the plaintiff, under Instruction 1, on humanitarian doctrine, then negligence of deceased, in getting into a position of danger, did not constitute a defense in the case, was a proper declaration of law. Sethman v. Union Depot Bridge & Term. Ry. Co., 203 Mo.App. 381, 218 S.W. 882; Berberich v. Haid, 64 S.W.2d 669; Kleinlein v. Foskin, 13 S.W.2d 648; Wallace v. St. Joseph Ry., 77 S.W.2d 1012; King v. Kansas City Pub. Serv. Co., 91 S.W.2d 92; Stegner v. Meehan, 63 S.W.2d 112. (3) Examination, by respondent, of appellant Berger, when called as a witness by respondent, was subject to the discretion of the trial judge, and his ruling constituted no abuse of that discretion. Beier v. St. Louis Transit Co., 197 Mo. 234, 94 S.W. 876; Smith v. Ohio Millers' Mut. Fire Ins. Co., 320 Mo. 146, 6 S.W.2d 928; Hinds v. C., B. & Q. Ry. Co., 85 S.W.2d 172. (4) Witness Blackman was qualified as an expert, and opinions given by him, as to stopping of trains, were properly admitted. Adams v. Quincy, O. & K. C. Ry. Co., 287 Mo. 535, 229 S.W. 795; Robison v. Chicago G.W. Ry. Co., 66 S.W.2d 185.

OPINION

Westhues, C.

This is an appeal by appellants, defendants below, from a judgment against them in plaintiff's favor in the sum of $ 10,000 for the death of plaintiff's husband. The case comes to the writer on reassignment.

Respondent is the widow of Sidney Stark, who lost his life at a grade crossing in the village of Shrewsbury, St. Louis County, Missouri, in a collision between a Frisco passenger train and a truck driven by Stark. Appellants are: G. R. Berger, the engineer of the train; J. M. Kurn and John Lonsdale, trustees of the St. Louis-San Francisco Ry. Co. The case was submitted to the jury by instructions under the humanitarian doctrine. Appellants have preserved for our review the sufficiency of the evidence to support the verdict. The question for decision is a close one, but after a full consideration of all the facts and circumstances in evidence we have reached the conclusion that appellants' contention must be sustained.

Deceased was, on the day of the collision and for a number of days prior thereto, driving a truck engaged in hauling rock for the C. W. A. It was necessary, to reach the point where the rock was to be delivered, to cross the main line of the Frisco at Gratiot Avenue in Shrewsbury. This avenue is a much traveled concrete roadway running in a northerly and southerly direction. The railroad tracks run in an easterly and westerly direction. The passenger train here concerned was number seven, known as the Blue Bonnet. It was traveling west at a speed of about fifty miles per hour. The truck driven by deceased was loaded with rock and was going south at a speed of about fourteen miles per hour. There was an upgrade for about six hundred feet on Gratiot Avenue until within about twenty-five feet of the track where the grade became level, and so continued, on and over the crossing. A train approaching this avenue or crossing could be seen from the roadway for a distance of about eight hundred feet at any point within five hundred feet to the north of the track, and, vice versa, cars could be seen on the roadway from the railroad tracks from the points indicated. The collision occurred at about two-thirty p.m. on February 22, 1934. The evidence showed that it was a clear day and the roadway and railroad tracks were dry. Immediately before the collision, and as the train was approaching the crossing, a signal or warning bell located at the crossing and the bell on the engine were ringing. A number of plaintiff's witnesses stated that the whistle of the engine was sounded at short intervals as the train approached the crossing. There were a number of trucks engaged in hauling rock. Two of these had stopped at the crossing to let the train pass. Witnesses placed the distance between the point where the first truck stopped and the tracks at twenty-five to forty-five feet and the distance between the first truck and the second at about ten feet. The truck operated by deceased was the third. It did not stop, but passed the two trucks that were standing still and attempted to cross the tracks in front of the on-coming train. The truck failed to clear the track ahead of the train by a small margin. The pilot beam of the engine struck the rear end of the truck resulting in the death of Stark. When the train was brought to a stop the rear end was twenty-five feet to the west of the crossing. It consisted of an engine and nine cars and was about six hundred feet in length.

It is respondent's theory that Berger, the engineer of the train, could have, by the exercise of ordinary care, discovered that deceased did not intend to stop for the train, in time thereafter to have slackened the speed of the train sufficiently for the truck to have cleared the tracks. One witness testified that the truck could have been stopped within a distance of ten feet. Perhaps he could on the upgrade he was ascending, but let us for the purpose of this case assume that it required a distance of twenty feet to stop the truck. The engineer of the train had the right to assume that the deceased would stop before entering in the pathway of the train. The rule was well stated in Elkin v. St. Louis Public Service Co., 335 Mo. 951, 959, 74 S.W.2d 600, l. c. 604, as follows:

"Under the facts shown the motorman had a right to assume that plaintiff would stop the truck before driving upon the track. This being true, the motorman was under no duty to slacken the speed of the car or sound a warning of its approach until it was or should have been apparent to him that plaintiff did not intend to stop before going upon the track. Plaintiff testified that the truck was traveling four or five miles per hour and he could have stopped it at any time within a distance of two feet. If the truck could have been stopped within a space of two feet, and if the motorman had a right to presume that plaintiff would stop it before driving upon the track, undoubtedly it could not have been apparent to the motorman that plaintiff did not intend to stop until the truck was so near the track that no juror could say, without entering the field of guess and speculation, that the motorman could have avoided the collision by checking the speed of the street car or by sounding a warning after he saw or should have seen that plaintiff did not intend to stop and let the street car pass."

[See also, Willhauck v. Chi., R. I. & P. Ry. Co., 332 Mo. 1165, ...