State ex rel. Thompson v. Shain

• Citation: 159 S.W.2d 582,349 Mo. 27
• Decision Date: 20 November 1941
• Docket Number: 37570,37574
• Parties: State of Missouri at the relation of Guy A. Thompson, Trustee in Bankruptcy of the Missouri Pacific Railroad Company, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and N. T. Cave, Judges of the Kansas City Court of Appeals. State of Missouri at the relation of John Rosanbalm, Administrator of the Estate of Herbert Rosanbalm, Relator, v. Hopkins B. Shain, Ewing C. Bland and N. T. Cave, Judges of the Kansas City Court of Appeals
• Court: United States State Supreme Court of Missouri

159 S.W.2d 582

349 Mo. 27

State of Missouri at the relation of Guy A. Thompson, Trustee in Bankruptcy of the Missouri Pacific Railroad Company, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and N. T. Cave, Judges of the Kansas City Court of Appeals. State of Missouri at the relation of John Rosanbalm, Administrator of the Estate of Herbert Rosanbalm, Relator, v. Hopkins B. Shain, Ewing C. Bland and N. T. Cave, Judges of the Kansas City Court of Appeals

Nos. 37570, 37574

Supreme Court of Missouri

November 20, 1941

Rehearing Denied March 10, 1942.

Writ in Case No. 37570 quashed and in Case No. 37574 opinion of Court of Appeals quashed in part.

Thomas J. Cole, L. J. Bishop and Patterson, Chastain & Smith for relator in Case No. 37570 and for respondents in Case No 37574.

(1) The theory of the opinion of the Court of Appeals is that as the deceased approached a position of peril the defendant was bound to warn him. In so holding it conflicts with the following controlling decisions of this court: Buehler v Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961; Stark v. Berger, 344 Mo. 170, 125 S.W.2d 870. (2) The opinion fails to find facts showing a present duty and a present ability in the defendant to avert the injuries after the deceased became in a position of peril, and the opinion conflicts with the following controlling decisions of this court in that respect: Sullivan v. A., T. & S. F. Ry Co., 317 Mo. 996, 297 S.W. 945; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798; Zickefoose v. Thompson, 148 S.W.2d 784; White v. K. C. Public Serv. Co., 149 S.W.2d 375; Poague v. Kurn, 140 S.W.2d 13. (3) The opinion in determining the question of when the obligation to warn the deceased arose fails to recognize the right of the defendant to assume that the deceased would stop before going on the track. The opinion in this respect conflicts with the following controlling decisions of this court: Shepherd v. Chicago, R. I. & P. Ry. Co., 335 Mo. 606, 72 S.W.2d 985; State ex rel. Wabash Ry. Co. v. Bland, 313 Mo. 246, 281 S.W. 690. (4) The opinion in finding that there was time to sound a whistle after the deceased became in peril and to thus avoid the injury, and in placing the burden of proof with respect to these conditions upon the defendant conflicts with the following controlling decisions of this court: Kirkdoffer v. St. Louis-S. F. Ry. Co., 327 Mo. 166, 37 S.W.2d 569; Beal v. St. L.-S. F. Ry. Co., 256 S.W. 733; Schneider v. Terminal Railroad Assn., 341 Mo. 430, 107 S.W.2d 787; Perkins v. Terminal Railroad Assn., 340 Mo. 868, 102 S.W.2d 915; Cochran v. Thompson, 148 S.W.2d 532; State ex rel. Alton R. Co. v. Shain, 143 S.W.2d 233. (5) The opinion found that there was nothing in the conduct of the deceased to indicate that he was aware of the approach of the train or that he would stop before going upon the track, but the opinion makes no affirmative finding of fact on said point. The effect of this is to place the burden of proof on the defendant on this point as is likewise done in other parts of the opinion. In so doing the opinion conflicts with the following controlling decisions of this court: Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482. (6) The opinion finds that the fireman saw that the automobile had side curtains on it and that it approached the crossing without change of speed. No other fact on the question of the obliviousness of the deceased is shown and the burden of proof under such facts is by the opinion placed upon the defendant. The opinion thus conflicts with the decisions of this court eited under Point (5). (7) Under the facts stated there was no substantial evidence showing obliviousness on the part of the deceased within the time within which the whistle could have been blown, and the opinion of the Court of Appeals in submitting the case on that account conflicts with the following controlling decisions of this court. State ex rel. Alton R. Co. v. Shain, supra; Perkins v. Terminal Railroad Assn., supra; Beal v. St. L.-S. F. Ry. Co., supra. (8) The opinion of the Court of Appeals in holding that if the fireman had called for whistle 2 1/2 seconds before the collision that the whistle could have been sounded and the accident averted conflicts with the following controlling decisions of this court: Stark v. Berger, supra; Kirkdoffer v. St. L.-S. F. Ry. Co., supra; Sullivan v. A., T. & S. F. Ry. Co., supra; State ex rel. Wabash Ry. Co. v. Bland, supra; Beal v. St. L.-S. F. Ry. Co., supra. (9) Under the facts found by the Court of Appeals it does not appear where the train was when the deceased entered a position of peril or within what time a whistle could have been sounded, or when it was apparent that the deceased was oblivious to his danger, or that a warning, if given, would have been heeded, or that there was a present ability on the part of the defendant to sound a whistle so as to avoid the collision, and on account thereof the opinion of the Court of Appeals rests on speculation and conjecture and is in conflict with the following decisions of this court: State ex rel. K. C. Southern Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915. (10) Under the opinion the evidence of the plaintiff on the question of the giving of alarms left that question in equipoise. The opinion of the court upholding the submission for failure to warn conflicts with the controlling decisions of this court in Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125. (11) The Court of Appeals followed the last controlling decision of this court on the question of consistent theories. Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284. (12) This court on certiorari looks only for conflicts with controlling decisions and will not determine whether the Court of Appeals erred in its application of rules of law to the facts found. State ex rel. Hauck Bakery Co. v. Haid, 333 Mo. 76, 62 S.W.2d 400; State ex rel. Sirkin Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50; State ex rel. Powell Truck Lines, Inc., v. Hostetter, 345 Mo. 915, 137 S.W.2d 461.

Will H. Hargus, Phineas Rosenberg and Joseph Koralchik for relator in Case No. 37574, and for respondents in Case No. 37570.

(1) The instant opinion did not unduly extend the "zone of peril" but properly ruled that obliviousness may extend such zone. State ex rel. v. Daues, 288 S.W. 14; State ex rel. v. Shain, 101 S.W.2d 1; Lotta v. Kansas City Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296; State ex rel. v. Shain, 137 S.W.2d 527; Hilton v. Terminal Railroad Assn., 345 Mo. 987, 137 S.W.2d 520; Perkins v. Terminal Railroad Assn., 340 Mo. 868, 102 S.W.2d 915; Womack v. Mo. Pacific R. Co., 337 Mo. 1160, 88 S.W.2d 368; Homan v. Mo. Pacific R. Co., 334 Mo. 61, 64 S.W.2d 617; Hencke v. St. Louis & H. R. Co., 335 Mo. 393, 72 S.W.2d 798; Iman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477; Poague v. Kurn, 140 S.W.2d 13; Stark v. Berger, 344 Mo. 170, 125 S.W.2d 870; Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961. (2) The instant opinion does not conflict with any opinion of this court respecting whether an issue was made for the jury or whether defendant had time to signal. State ex rel. v. Allen, 256 S.W. 1049; State ex rel. v. Shain, 340 Mo. 434, 101 S.W.2d 1; State ex rel. Wabash Ry. Co. v. Bland, 313 Mo. 246, 281 S.W. 690; State ex rel. v. Haid, 328 Mo. 327, 40 S.W.2d 611; State ex rel. v. Cox, 323 Mo. 520, 19 S.W.2d 695; Beal v. St. Louis & S. F. Ry. Co., 256 S.W. 733; Zickefoose v. Thompson, 148 S.W.2d 784; State ex rel. v. Shain, 143 S.W.2d 233; Chawkley v. Wabash Ry. Co., 317 Mo. 297, 297 S.W. 20. (3) The Court of Appeals followed controlling decisions of this court in ruling that an issue was made for the jury as to whether deceased's obliviousness should have been apparent to the defendant's fireman. State ex rel. v. Shain, 143 S.W.2d 236; Poague v. Kurn, 140 S.W.2d 13; Shepherd v. Chicago, R. I. & P. Ry. Co., 335 Mo. 606, 72 S.W.2d 985; Lakin v. Chicago, R. I. & P. Ry. Co., 78 S.W.2d 481; Kirkdoffer v. St. L. & S. F. Ry. Co., 327 Mo. 166, 37 S.W.2d 569; Stark v. Berger, 344 Mo. 170, 125 S.W.2d 870; Gann v. Chicago, R. I. & P. Ry. Co., 319 Mo. 214, 6 S.W.2d 39; State ex rel. v. Shain, 125 S.W.2d 41; State ex rel. v. Shain, 143 S.W.2d 43; Vowels v. Mo. Pac. R. Co., 320 Mo. 34, 8 S.W.2d 7; Hencke v. St. Louis & H. R. Co., 335 Mo. 393, 72 S.W.2d 798; Herrell v. St. Louis & S. F. R. Co., 322 Mo. 551, 18 S.W.2d 481; Zickefoose v. Thompson, 148 S.W.2d 784. (4) The instant opinion is supported by ample evidence. State ex rel. v. Shain, 340 Mo. 434, 101 S.W.2d 1. (5) There was ample evidence justifying submission to the jury of the question whether an alarm was sounded. Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125; Stat ex rel. v. Cox, 293 S.W. 122.

OPINION

Hays, J.

John Rosanbalm, Administrator of the Estate of Herbert Rosanbalm, deceased, brought suit in the Circuit Court of Johnson County against Guy A. Thompson, Trustee in bankruptcy of the Missouri Pacific Railroad Company, a corporation, to recover damages for the death of plaintiff's intestate. From a judgment for the plaintiff defendant appealed to the Kansas City Court of Appeals. That court held that the evidence was sufficient to warrant the submission of the case to the jury but reversed and remanded because of an alleged error in an instruction given by the trial court at the request of the plaintiff. Both parties seek review of this decision of the court of appeals by certiorari. In case here numbered 37570 the defendant trustee (appellant below) asks us to quash that portion of the opinion which holds that the plaintiff made a submissible case. In case here numbered 37574 the plaintiff administrator (respondent below) complains of that portion of the opinion which holds that the...