Stoeckle v. St. Louis & Hannibal Railroad Company, a Corp.

• Decision Date: 08 January 1924
• Citation: Stoeckle v. St. Louis & Hannibal Railroad Company, a Corp., 258 S.W. 58, 214 Mo.App. 124 (Mo. App. 1924)
• Parties: CARL E. STOECKLE, Respondent, v. ST. LOUIS & HANNIBAL RAILROAD COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

258 S.W. 58

214 Mo.App. 124

CARL E. STOECKLE, Respondent, v. ST. LOUIS & HANNIBAL RAILROAD COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

January 8, 1924

Appeal from the Hannibal Court of Common Pleas.--Hon. Charles T Hays, Judge.

AFFIRMED.

Judgment affirmed.

Mahan & Mahan, Grover C. Huston, and Hostetter & Haley, for appellant.

E. H Pollard, Eby & Hulse, Berryman Henwood, and Matson & Cowherd for respondent.

(1) The evidence shows conclusively that appellant was negligent in the management and operation of its train on the day of the collision, and that its negligence was the direct and proximate cause of the collision and injuries to respondent, and that therefore, the trial court committed no error in refusing to give the demurrers to the evidence offered by appellant.(2) At the time of the accident, respondent's wife was in the exercise of due care for her own safety and for the safety of her husband's automobile and the trial court was not in error in refusing to declare, as a matter of law, that the respondent was guilty of contributory negligence.Baker v. Railroad,122 Mo. 533, 26 S.W. 20;Baker v. Railroad,147 Mo. 140, 48 S.W. 838;Ruenzi v. Payne,208 Mo.App. 113, 231 S.W. 294;Swigart v. Lusk,196 Mo.App. 471, 192 S.W. 138;Brown v. C. & A. R. R. Co.,252 S.W. 55;De Rousee v. West et al.,198 Mo.App. 293, 200 S.W. 783;Lamb v. Mo. Pac.,147 Mo. 171, 48 S.W. 659;McDaniel v. Hines,239 S.W. 471;Reeves v. K. C. St. L. & C. R. R. Co.,251 Mo. 169, 158 S.W. 2;Pope v. Railroad,242 Mo. 232, 146 S.W. 790;Underwood v. St. L., I. M. & S. R. R. Co.,190 Mo.App. 407, 177 S.W. 724;Donohue v. Railroad,91 Mo. 357;Weigman v. Railroad,223 Mo. 699, 123 S.W. 38.(3) Even though plaintiff's wife were guilty of negligence, any such negligence would not be imputable to her husband so as to prevent him from recovering for his automobile.Hays v. Hogan,273 Mo. 1, 200 S.W. 286;Mast v. Hirsch,199 Mo.App. 1, 202 S.W. 275;Busky v. Januchowski,218 S.W. 696;Bright v. Thatcher,202 Mo.App. 301, 215 S.W. 788;Holman v. Bullene,200 S.W. 1068;Allen v. Coglizer,208 S.W. 102;Spelman v. Delano,177 Mo.App. 28, 163 S.W. 300;Norton v. Hines,245 S.W. 346.(4)Defendant's instructions Nos. 2, 3, 4, 5 and 6 are clearly bad and were properly refused by the trial court.(5) The letter from H. M. Modisett, general manager of defendant railroad company, and admitted by appellant's counsel to have so been, was clearly admissible in evidence especially with the limitations placed thereon and opportunity given appellants to instruct thereon by the trial court.(6)The plaintiff alleges and the evidence shows that the appellant failed to erect and maintain railroad crossing signs at the crossing where the accident occurred as required by section 9944 of Article 2 of Chapter 90 Revised Statutes 1919.Knox v. M. K. & T. Ry. Co. et al.,203 S.W. 225;American Automobile Insurance Co. v. United Railways Co.,206 S.W. 257, 200 Mo.App. 317;Fusill v. Mo. Pac. Ry.,45 Mo.App. 535;Steigleder v. Lonsdale, et al., 253 S.W. 487.

DAVIS, C. Allen, P. J., Becker and Daues, JJ., concur.

OPINION

DAVIS, C.--

This is a suit for damages for the value of an automobile, of which plaintiff was the alleged owner, and which was demolished in a collision with one of defendant's freight trains at Silex, Lincoln county.Verdict and judgment for plaintiff for $ 1300, the value of the automobile, from which defendant appeals.

Defendant makes no point relative to the pleadings.We deem it advisable, however, to point out that the petition charges defendant with negligently backing or pushing a freight car or cars over its switch track to contact with plaintiff's automobile driven by his wife, along the public road; that the defendant negligently failed to give any signal or warning of the approach of said car or cars, negligently failed to keep a lookout, man its train, and negligently failed to have a person in position to discover the automobile to prevent the collision.

The answer contains a general denial; alleges the known inefficiency of plaintiff's wife, the driver; the negligence of his wife in attempting to beat the train over the crossing; in failing to keep a careful lookout; in failing to look and listen for moving trains and stop; in failing to stop after seeing train, and in failing to stop, when by the exercise of ordinary care she could have seen the train; that the negligence of the driver and plaintiff are imputable to each other, and that the damage to the automobile was caused by the driver's negligence, imputable to plaintiff.

The reply is a general denial.

This is a companion case to Lawrence v. Railroad (not yet reported).

About August 1, 1918, plaintiff purchased at Fort Madison, Iowa, a new Buick roadster, costing $ 1350, for the use of himself and family.On August 4, 1918, Mrs. Lawrence, an aunt of his wife, then residing at Hannibal, Missouri, was visiting at the home of plaintiff and his wife in Fort Madison.On August 4, 1918, Mrs. Stoeckle and her aunt started on a trip to Hannibal and St. Louis in plaintiff's Buick car, arriving at Hannibal on Sunday, and remaining there at the home of the aunt until August 6th, on which day they set out for St. Louis.The relationship existing between plaintiff and his wife in the use of the car is demonstrated by the following testimony:

"Q.Now, Mr. Stoeckle, I will get you to state what you did with that automobile on or about the 5th day of August, 1918, 4th or 5th day of August?A.Why, I allowed my wife to take it for a pleasure trip to St. Louis.Q.Your wife asked you to use it to drive it down to St. Louis?A.Why, yes.Q.Did she say where she was going?A.They were going to Hannibal and from Hannibal to St. Louis.Q.Who was with your wife at that time?A.Why, her aunt, Mrs. Lawrence.Q.Now, did your wife say they were going to visit any one in St. Louis at that time?A.It was her cousin and Mrs. Lawrence's niece.Q.Youpermitted your wife to take the car on that day?A.I did.Q.And I will ask you whether or not your wife was performing any duty or errand for you on that day?A.None whatever."

On cross-examination:

"Q.Had you given your wife the car as a present or not?A.No. Q. You bought it for family use?A.For our use, it is our car.Q.For both of you to use?A.Yes, sir.Q.Your family consists of yourself and wife and one child?A.Two children.Q.Either of your children old enough to drive a car?A.No. Q. You had purchased the car for family use, for you and your wife both to use?A.I did.Q.She had the right to drive whenever she wanted to, the same as you did?A.Yes, sir.Q.Like any other article bought with your money for family use, she had the same access to it as you did?A.Yes, sir.Q.She did not have to ask your permission to use the car?A.Not necessarily, no sir.Q.She was welcome to use it whenever she wanted to?A.Yes, sir.Q.On this occasion she and Mrs. Lawrence were coming to Hannibal, Mrs. Lawrence living here at the time, and from here going on to St. Louis, perhaps to do some shopping and to visit Mrs. Lawrence's cousin; and they took the car for that purpose; while they were down there did they do any shopping for you, Mr. Stoeckle?A.Oh, might have bought me a tie."

Defendant in its statement of fact says: "The plaintiff, Mr. Stoeckle, testified that the automobile was bought and paid for by him and was his car. . . .Mrs. Stoeckle, the wife, also testified in the instant case on this point along the same line as her husband, and stood for the proposition that her husband loaned her the automobile to make the ill-starred trip."

For a more extended statement of fact, we refer to the case of Lawrence v. Railroad, supra.For the purposes of this case, we briefly state that Mrs. Stoeckle, with her aunt, on their return trip from St. Louis, were proceeding west along a road they had never been over before, near Silex.Defendant's railroad tracks run on the east side of Silex in a northerly and southerly direction.Silex is situated in the lowlands.Approaching Silex from the east, the road descends a hill to the lowlands, crossing a bridge over a creek, distant about 317 feet from the place where the railroad switch track crosses the highway leading to Silex.The ladies testified that as they proceeded along the road, their view of the railroad tracks was obscured by trees, brush and weeds along the road, and by elevators, stock pens, and other buildings, and that they did not see or know of the presence of railroad tracks or a train thereon as they came along the road.Later they stated, when near the elevators which abutted the road and the switch track on the east, they saw the track and brought their automobile to a stop.Looking both ways, they saw a box car protruding from the north elevator about half its length, which they saw was stationary.From their position where the Buick stopped, about thirty feet from the switch track, they looked and listened, but did not see or hear a train.Believing it safe to cross, Mrs. Stoeckle started in low, changed the gear to second, and proceeded across, looking and listening as they went, but looking particularly at the main track, forty-four feet west of the side track, for a train.When the tires of the Buick had gotten over the first rail of side track, the aunt saw the box car within a foot or two of the automobile, screamed, and Mrs. Stoeckle turned the wheels to the south, when the box car pushed the automobile into a building on the south side of road, almost completely demolishing it.The railroad took charge of the wrecked Buick, and sold it for $ 50.

Defendant contends that it was the duty of plaintiff to convey Mrs Lawrence, in...