State ex rel. Baldwin v. Shain

• Decision Date: 03 May 1938
• Docket Number: 35684
• Citation: 125 S.W.2d 41
• Parties: STATE ex rel. BALDWIN et al. v. SHAIN et al., Judges
• Court: Missouri Supreme Court

125 S.W.2d 41

STATE ex rel. BALDWIN et al. v. SHAIN et al., Judges

No. 35684

Supreme Court of Missouri, Second Division

May 3, 1938

Respondents' Motion for Rehearing Overruled February 21 1939.

Thos J. Cole, of St. Louis, and L. J. Bishop and D. C. Chastain both of Butler, for relators.

W. W. McCanles, of Los Angeles, Cal., and Earl Bowles and Ira B. McLaughlin, both of Kansas City, for respondents.

COOLEY and WESTHUES, CC., concur.

OPINION

BOHLING, Commissioner.

Certiorari to test rulings in Boyer v. Baldwin, Mo.App.K.C., 106 S.W.2d 21, which was an action by the minor children of Frank Boyer, acting through their guardian, against the relators, trustees of the Missouri Pacific Railroad Company, a corporation, arising out of the death of said Boyer upon being struck by one of relators' trains. Plaintiffs' case was submitted in the alternative on alleged negligence in relators' failure to warn, to stop or slacken the speed of the train under the humanitarian doctrine.

Plaintiffs offered witnesses Jaques, relators' fireman, and Robinson, a bystander. Their testimony differed with respect to certain facts. Relators take the position that plaintiffs may not have the benefit of certain portions of Jaques' testimony without also accepting as true his testimony as to other facts which destroy plaintiffs' case; that is, since Jaques and Robinson had conflicting theories of the occurrence, isolated portions of Jaques' testimony may not be linked with Robinson's testimony to establish the constitutive elements essential to a submissible issue or issues on behalf of plaintiffs. Relators present the issue with respect to obliviousness on the part of deceased and the point of impact.

At the place involved, relators maintained two parallel north and south tracks, about ten feet apart, the east track being known as the Joplin and the west track as the Fort Scott track. Relators' train was proceeding south on the west track. Jaques testified Boyer was walking south on the west end of the ties of the east track about 1,000 to 1,200 feet ahead of the train, with 'his head down'; that witness 'blew out the engine,' which 'makes a lot of noise' and the whistle and the bell were sounded but deceased did not 'look up or back' nor indicate he was aware of the approach of the train, which was on the west track and traveling twenty-five miles an hour; that deceased, when the train was about 60 feet north of the place of the accident, left the east track and walked toward the west and directly in front of the engine; that he directed the engineer to apply the brakes when deceased started west, and the train stopped in about 160 feet and, so far as disclosed, as quickly as possible. Robinson testified he was west of the tracks and deceased was on the east end of the ties of the west track walking south into a strong wind; that after deceased had thus proceeded a distance of 200 feet he was overtaken by relators' engine and his body dragged about 300 feet; and that no steam escaped nor was a whistle sounded, and the bell was not rung until about the time the brakes went on. Jaques placed the accident from 500 to 600 feet south of where Robinson placed it.

We think relators' position not well taken, because:

In final analysis, respondents' opinion ruled the factual issues could be determined from a consideration of Robinson's testimony alone. See 106 S.W.2d 21, loc. cit. 23, bottom of first and top of second columns. The referred to portion of respondents' opinion is not inconsistent but is in harmony with the narration of Robinson's testimony in said opinion and restated in substance hereinabove; and no occasion is presented, were we authorized so to do, for us to inspect, as requested by relators, Robinson's testimony in support of their contention that said portion of said opinion does not state facts but conclusions of the court as to what facts Robinson's testimony established. 'We are bound by the Court of Appeals' conclusion as to what the facts are, but we are not bound by the result it reaches by applying the law to the facts, if that result conflicts with controlling decisions of this court.' State ex rel. v. Shain, 338 Mo. 1208, 1209(1), 93 S.W.2d 992, 993(1), quoting State ex rel. Ward v. Trimble, 327 Mo. 773, 778, 39 S.W.2d 372, 374(7, 8). Consult also State ex rel. v. Haid, 332 Mo. 1061, 1071(6), 61 S.W.2d 950, 954(8), and cases cited.

The law, as contended by relators, will not sustain a recovery based on testimony contradictory to and at war with plaintiffs' pleaded and proved theory of his case. Elkin v. St. Louis P. S. Co., 335 Mo. 951, 958(4), 74 S.W.2d 600, 603 (8); Behen v. St. Louis T. Co., 186 Mo. 430, 440(II), 85 S.W. 346, 348(2); Rodan v. St. Louis T. Co., 207 Mo. 392, 407(b), 105 S.W. 1061, 1065(b); Bollinger v. St. Louis-S. F. Ry. Co., 334 Mo. 720, 732(5), 67 S.W.2d 985, 991(9); among others. The preceding paragraph discloses that respondents' holding does not necessarily conflict with this rule of law. We understand Jaques and Robinson were watching the same man over an identical period of time and were testifying concerning the same ultimate event. Respondents' statement of the law that it is within the province of the jury to accept a witness' testimony in part and to reject it in part and its illustrated application to that portion of Jaques' testimony supporting the verdict, to wit, permitting the jury to believe that Boyer, when Jaques first saw him, was 1000 to 1200 feet ahead of the engine, walking south, with his head down, and did not look up or back nor indicate he was aware of the approach of the train; that the train could have been stopped in the distance testified to by Jaques, and disbelieve that Boyer left a position of safety and walked into the path of the train is not shown by the record here to be contradictory to or at war with Robinson's testimony bearing on said facts and falls within our rulings in State ex rel. St. Louis-S. F. Ry. Co. v. Cox, Mo.Sup. Banc, 293 S.W. 122, 123, 125(2); Gould v. Chicago, B. & Q. R. Co., 315 Mo. 713, 723, 290 S.W. 135, 138(2), stating: 'The jury may believe all of the testimony of any witness or none of it, or may accept it in part or reject it in part, just as it finds same to be true or false when considered in relation to the other testimony and the facts and circumstances in the case.' Gann v. Chicago, R. I. & P. Ry. Co., 319 Mo. 214, 228, 6 S.W.2d 39, 44 (5); Maginnis v. Missouri Pac. Ry. Co., 268 Mo. 667, 675, 678, 187 S.W. 1165, 1167(4, 7), and other cases.

So far as disclosed by the record before us, any determination from conflicting testimony as to the point of impact, if essential to a verdict, appears to have been a question for the jury. If Robinson's testimony was sufficient to sustain the verdict, Jaques' testimony as to the point of impact was not material.

Plaintiffs made a submissible case under the humanitarian doctrine on failure to warn (conceded by relators) and on failure to stop. Although of different opinion at first, as disclosed by the return to our writ, respondents, upon rehearing at plaintiffs' instance, also ruled there was evidence tending to show that the failure to slacken speed was a proximate cause of the accident, stating: 'Boyer walked on the ends of the ties. Had he taken one step to his left he would have been in a place of safety. The situation was such that it was the duty of the operatives of the engine to slacken speed. This duty was neglected. Had the duty been performed Boyer would have had more time in which to become aware of the peril and step aside. It follows that we cannot say as a matter of law that the failure to slacken speed was not a proximate cause of the death of Boyer.' Relators say this ruling is in conflict with Sevedge v. Kansas City, St. L. & C. R. Co., Banc 1932, 331 Mo. 312, 319(3), 53 S.W.2d 284, 287(2), and cite many supporting cases holding a verdict may not rest upon speculation and conjecture. Barraclough v. Union Pac. R. Co., 331 Mo. 157, 167(8), 52 S.W.2d 998, 1003(7), and others. A discussion of the issue should bear in mind that the uncontradicted testimony showed deceased was oblivious to the impending peril; that plaintiffs' submission embraced issues involving relators' failure to warn or to stop under the humanitarian doctrine; that a myriad of specific factual situations, often involving difficult questions of law or fact or of mixed law and fact, are presented in the many humanitarian cases; that a determination of the governing principle of law of each individual case must be arrived at with reference to the basic factual situation presented; and the now well settled rule that antecedent primary negligence is not to be confused with negligence under the humanitarian doctrine. State ex rel. v. Bland, 1929, 322 Mo. 565, 15 S.W.2d 798; Homan v. Missouri Pac. R. Co., Banc 1933, 334 Mo. 61, 78(7), 64 S.W.2d 617, 624(13), and cases cited.

The Sevedge Case involved a high-way-railroad grade intersection collision between a train and an automobile. Respondents directing our attention to our judicial knowledge that the ordinary walking speed of the average man is approximately three miles an hour [McGowan v. Wells, 324 Mo. 652, 666, 24 S.W.2d 633, 639(6)], argue that the casualty would have been averted if, prior thereto, the speed of the train had been reduced to a rate of speed equal to or less than that traveled by Boyer; and assert the construction placed upon the word 'slackened' in the phrase 'could have slackened the speed of said locomotive' in plaintiff's humanitarian instruction in the Sevedge Case sustains their and defeats relators' contention. The court there said (loc. cit. 319 and loc. cit. 287, respectively): 'We find no basis for counsel's suggestion...