Tavis v. Bush

• Decision Date: 06 January 1920
• Parties: CALLIE TAVIS v. BENJAMIN F. BUSH, Receiver of MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

217 S.W. 274

280 Mo. 383

CALLIE TAVIS v. BENJAMIN F. BUSH, Receiver of MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

January 6, 1920

Appeal from Jackson Circuit Court. -- Hon. William O. Thomas, Judge.

Reversed and remanded.

Edward J. White and Thomas Hackney for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence interposed at the close of plaintiff's evidence and again renewed at the close of all the evidence. The testimony was insufficient to authorize the submission of the case to the jury under the humanitarian rule. Keele v Railroad, 258 Mo. 79; Tannehill v. Railroad, 213 S.W. 818; McMiens v. United Rys. Co., 274 Mo 331; Burge v. Railroad, 244 Mo. 102; Degonia v Railroad, 224 Mo. 596; Pope v. Railroad, 242 Mo. 232; England v. Railroad, 180 S.W. 36; Armstrong v. Railroad, 203 S.W. 249; Guyer v. Railroad, 174 Mo. 351; Schmidt v. Railroad, 191 Mo. 235; McGee v. Railroad, 214 Mo. 543; Porter v. Railroad, 199 Mo. 82. (2) It was the duty of the deceased in driving the truck on the public road as he approached the railroad crossing to "use the highest degree of care that a very careful person would use under like or similar circumstances" to prevent the collision with defendant's train. Par. 9, Sec. 12, Laws 1911, p. 330. He owed this duty to defendant as well as to others on the highway. Threadgill v. United Rys. Co., 279 Mo. 66, 214 S.W. 161. The engineer and fireman had the right to presume that the deceased in approaching the crossing at a confessedly slow speed variously estimated at from 2 to 8 miles per hour, with the train in plain view, had both seen and heard the train. Keele v. Railroad, 258 Mo. 79; England v. Railroad, 180 S.W. 36. (3) The court erred in giving Instruction No. 5 at the plaintiff's instance. By this instruction the jury were told that in determining plaintiff's damages they could take into consideration the pecuniary loss occasioned to plaintiff by the death of her husband, if any; also "and you may also take into consideration the facts (if any) constituting negligence (if any) on the part of the defendant causing the death (if you so find)." This action was for compensatory damages only, being brought under Sec. 5425, R. S. 1909. No punitive damages were asked. In such case it is error to instruct the jury that in assessing the damages they may take into consideration the facts constituting negligence causing death. State ex rel. Dunham v. Ellison, 213 S.W. 459.

Hogsett & Boyle for respondent.

(1) Deceased did not have ample warning of the approach of the train. Stotler v. Railroad, 200 Mo. 137; Murray v. Transit Co., 176 Mo. 188; Dutcher v. Railroad, 241 Mo. 141. See also Muller v. Harvey, 204 S.W. 929; Advance Transfer Co. v. Railway Co., 195 S.W. 567; Doyle v. Railway Co., 185 S.W. 1175; Buckrey-Ellis v. Railroad, 158 Mo.App. 499; Underwood v. Railway, 190 Mo.App. 407. (2) This court has laid down the rule that even where the engine bell is ringing, but where such warning by the bell is apparently ineffective, there is a duty on the part of the engineer to sound the whistle. Rollinson v. Railroad, 262 Mo. 538; Dutcher v. Railroad, 241 Mo. 137; Eppstein v. Railroad, 197 Mo. 735; Reyburn v. Railroad, 187 Mo. 573. (3) The claimed error in Instruction 5 on the measure of damage was harmless. The McGowan Case, 109 Mo. 518, is directly in point and in principle is exactly like the case at bar. Where a verdict is manifestly for the right party, and the amount thereof is manifestly and indisputably reasonable, it would be "intolerable" (as this court said in the Shinn Case, 248 Mo. 180-183) to reverse the judgment for an error in an instruction on the measure of damages, which obviously has had no prejudicial effect whatever in increasing the amount of the verdict.

MOZLEY, C. White, C., concurs; Railey, C., not sitting.

OPINION

MOZLEY, C.

This is an action for damages brought by plaintiff to the Jackson County Circuit Court, and was tried therein at the regular May term, 1917, of said court. The trial resulted in a verdict for plaintiff, upon which judgment was duly rendered by the court. Within the statutory period appellant duly filed its motions for new trial, and to arrest the judgment, and, on the 30th day of June, 1917, the same being one of the judicial days of said term, the court overruled each of said motions; exceptions to this action of the court were taken and, thereupon, the case was duly appealed to this court.

This is a crossing case and the facts material and necessary to an understanding of them and of the issues involved are substantially as follows:

Respondent is the widow (and during his lifetime the wife) of John W. Tavis. Appellant owned and was operating a railroad which extends at the place in question a little north of east and a little south of west.

The accident happened on a bright sunshiny day at an unincorporated village named Dodson at the crossing of the public road over the railroad. The public road was smooth-surfaced, with a slight elevation as the track was approached, and crossed the same at grade and crossed the track substantially at right angles from east to west. There was an automatic-signal ball near the crossing and a few feet east of the track. Barrett's store and Hurley's Lumber Company buildings are situated on opposite sides of the track. Barrett's store building at its nearest point is 80 or 90 feet from said crossing. On the day of the accident deceased was driving a large motor truck and engaged in delivering bread for a Kansas City concern, and had stopped at said store, where he transacted some business, and then got into his truck and started toward the crossing at an estimated speed of three miles an hour. At the same time appellant was operating a train which was approaching the same crossing at a speed of twenty miles an hour. When deceased had traveled approximately one-half the distance between Barrett's store and the crossing, about 40 or 45 feet, he slowed his truck, without stopping, to allow a frightened team hitched to a wagon to pass and to which his attention was apparently directed. On the opposite side of the crossing was a disabled motor truck at the edge of the road deceased was traveling, which parties were trying to extricate from its predicament and apparently deceased's attention was directed to this after passing the wagon and team. All of the witnesses agree that when deceased was 80 or 90 feet from the crossing the on-coming train was from 400 to 600 feet distant from said crossing, and that there was nothing that interfered with the vision of either party. The fireman, E. E. Hart, testified as follows:

"Q. Did you have your eye on the lookout on the left hand side of the engine from that time until you got up to the road crossing? A. Yes, sir.

"Q. I wish you would tell the jury what you saw up there at the road crossing and when you first saw the automobile and how it was moving up to the time of the collision. Just tell them about it? A. When we got around the curve there that store was in my line of vision, when we got around the curve there the store would be in my line of vision, and I seen an auto truck; it looked to me like it just started, moving very slowly, and it moved along slowly, I should say five or six miles an hour, about that, up until it got within fifteen feet or such a matter of the side track that crosses Prospect Avenue, and all of that time I supposed the auto-truck seen the train and was going to stop, but when he got within about fifteen feet of that track his speed increased and I realized then that he had not seen us or was trying to beat us across, and I yelled to the engineer, 'we are going to hit that fellow,' and he applied the brakes in emergency and by that we hit him."

On cross-examination he testified as follows:

"Q. When did you first see this man? A. When we commenced to swing around the curve; when the engine swung around so the boiler would throw him in my line of vision on the curve.

"Q. Now, at that time how far was he from the track? A. He was just leaving the store, he was about 79 feet from the crossing.

"Q. You saw this man approaching the track 79 feet from the track? A. Yes, sir.

"Q. At that time you were on the curve? A. Yes, sir.

"Q. He came forward slowly? A. Yes, sir.

"Q. You say the truck was going slowly? A. Yes, sir.

"Q. And that it reached a point about fifteen feet from the passing track and then practically stopped? A. Yes, sir.

"Q. How far is the passing track from the main track? A. Fourteen feet, I believe.

Q. How wide is the track? A. Four feet and eight inches.

"Q. That makes eighteen feet and eight inches. A. Yes, sir.

"Q. And the man was still fifteen feet beyond that? A. Yes, sir.

"Q. That makes about twenty-nine and one-half feet that this man was from the track when you saw him start forward? A. Yes, sir.

"Q. At that time you knew he did not hear -- A. (interrupting) Yes, sir.

"Q. You knew he didn't know your train was coming, isn't that true? A. That is true.

"Q. Did you then sound the whistle to notify him, when you knew he didn't know you were coming? A. No, sir."

This witness who testified, supra, that when the truck started up it did so at a speed of five or six miles an hour, also testified that the train was running twenty-five or thirty miles an hour.

The case was submitted to the jury on the humanitarian doctrine alone.

I. It is strongly insisted by appellant that the facts of the record fall far short of making out a prima-facie case under the humanitarian rule, and that the court erred in not giving its peremptory instruction in the nature of a demurrer directing the jury to return a verdict for defendant.

Under this...