Tepel v. Thompson

• Decision Date: 11 April 1949
• Docket Number: 40777
• Citation: 220 S.W.2d 23,359 Mo. 1
• Parties: Frederick Tepel, Respondent, v. Frank A. Thompson, Trustee, St. Louis-San Francisco Railway Company, Debtor, Appellant
• Court: Missouri Supreme Court

220 S.W.2d 23

359 Mo. 1

Frederick Tepel, Respondent, v. Frank A. Thompson, Trustee, St. Louis-San Francisco Railway Company, Debtor, Appellant

No. 40777

Supreme Court of Missouri

April 11, 1949

Motion for Rehearing or to Transfer to Banc Overruled May 9, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. James E McLaughlin, Judge.

Reversed.

SYLLABUS

Plaintiff's automobile came to a stop at a grade crossing in Arkansas and then ran into the side of the engine of defendant's train. A judgment for plaintiff is reversed on the ground that there was no submissible case under the Arkansas Lookout statute, and that the Arkansas Comparative Negligence statute will prevent a recovery on account of defendant's failure to give statutory warning signals.

M. G. Roberts, E. G. Nahler, C. H. Skinker, Jr., and W. W. Dalton for appellant.

(1) There was a failure of proof as to high, excessive, dangerous, unreasonable and negligent speed. Missouri Pac. R. Co. v. Baldwin, 117 F.2d 510. (2) There was no proof of failure to comply with the "lookout statute." Sec. 11144, Pope's Digest, Statutes of Arkansas, 1937; St. Louis-S.F. Ry. Co. v. Thurman, 213 S.W.2d 362; McGlothin v. Thompson, 347 Mo. 708, 148 S.W.2d 558; Missouri Pac. R. Co. v. Moore, 199 Ark. 1035, 138 S.W.2d 384, certiorari denied 311 U.S. 646, 85 L.Ed. 412. (3) The plaintiff was not entitled to go to the jury on the discovered peril doctrine. Sec. 11144, Pope's Digest, Statutes of Arkansas, 1937; St. Louis-S.F. Ry. Co. v. Thurman, 213 S.W.2d 362; Baldwin v. Brim, 192 Ark. 252, 91 S.W.2d 255; Thrower v. Henwood, 351 Mo. 663, 173 S.W.2d 861; Missouri Pac. R. Co. v. Brewer, 193 Ark. 754, 102 S.W.2d 538; Jemmell v. St. Louis Southwestern Ry. Co., 178 Ark. 578, 11 S.W.2d 449. (4) The plaintiff made no submissible case on failure to give statutory signals. Sec. 11135, Pope's Digest, Statutes of Arkansas, 1937; Missouri Pac. R. Co. v. Hood, 199 Ark. 520, 135 S.W.2d 329; Louisiana & Arkansas Ry. Co. v. Smith, 133 F.2d 436; Missouri Pac. R. Co. v. Howard, 204 Ark. 253, 161 S.W.2d 759; Missouri Pac. R. Co. v. Dennis, 205 Ark. 28, 166 S.W.2d 886. (5) Plaintiff's injuries were caused by and due solely to his own negligence. Missouri Pac. R. Co. v. Dennis, 205 Ark. 28, 166 S.W.2d 886; Louisiana & Arkansas Ry. Co. v. Smith, 133 F.2d 436. (6) The plaintiff was not entitled to go to the jury for, as a matter of law, recovery was barred as his negligence was greater than any negligence of the defendant inferable from the evidence. Sec. 11153, Pope's Digest, Statutes of Arkansas, 1937; Act 140, Acts of Arkansas, 1945; Brist v. Kurn, 238 Mo.App. 913, 189 S.W.2d 419; Missouri Pac. R. Co. v. Davis, 197 Ark. 830, 125 S.W.2d 785; Missouri Pac. R. Co. v. Howard, 204 Ark. 253, 161 S.W.2d 759; McGlothin v. Thompson, 347 Mo. 708, 148 S.W.2d 558.

Reardon & Lyng and John H. Martin for respondent.

(1) The motion for directed verdict offered at the close of plaintiff's case was properly overruled by the trial court. Sec. 11138, Pope's Digest of the Statutes of Arkansas, 1937; Brist v. Kurn, 238 Mo.App. 913, 189 S.W.2d 419. (2) The motion for directed verdict at the close of the entire case was properly overruled by the trial court for plaintiff made a submissible case on the failure to give the statutory warning signals. Sec. 11135, Pope's Digest, Statutes of Arkansas, 1937. (3) Plaintiff's alleged contributory negligence was properly a question of fact for the jury and not a question of law for the court. Missouri Pacific Railroad Co. v. Shell, 208 Ark. 70, 185 S.W.2d 81; Missouri Pacific Railroad Co. v. Diffee, 205 S.W.2d 458. (4) The evidence clearly established a factual situation calling for the application of the "lookout statute". Sec. 11144, Pope's Digest, Statutes of Arkansas, 1937; Thrower v. Henwood, 351 Mo. 663, 173 S.W.2d 861; Thompson v. Carley, 140 F.2d 656; Missouri Pacific Railroad Co. v. Manion, 196 Ark. 981, 120 S.W.2d 715; Missouri Pacific Railroad Co. v. Fikes, 211 Ark. 256, 200 S.W.2d 97.

OPINION

Douglas, J.

Plaintiff recovered judgment for $ 17,000 for personal injuries resulting from a collision between his automobile, which he was driving, and defendant's train at a crossing on United States Highway 67 in Arkansas.

The question for decision is whether, according to the law of Arkansas, plaintiff made a submissible case under either of the two theories upon which he submitted his case to the jury.

The two grounds on which plaintiff submitted his case were first, that the railroad was negligent in not stopping or slackening the speed of the train or sounding a warning after it saw plaintiff was in a position of peril; and second, that the railroad failed to give the statutory crossing warning. As to the first ground the railroad contended it kept a proper lookout but was unable to prevent the accident after it discovered plaintiff in peril. On the issue of the statutory warning, the railroad asserted that the accident was caused by plaintiff's contributory negligence which was equal to or greater than any negligence which the railroad might have been guilty of in not giving the required warning, so under the Arkansas Comparative Negligence statute plaintiff may not recover. We hold that under the law of Arkansas the railroad's contentions must be sustained, and the judgment for plaintiff must be reversed.

As to plaintiff's first charge of negligence, we find Arkansas has a statutory requirement that operators of trains shall keep a constant lookout for persons upon the track. It has been held that "on the track" includes approaching the track.

The Lookout statute (Sec. 11144, Pope's Digest) provides: "It shall be the duty of all persons running trains in this State upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence to the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact that this duty to keep such lookout has been performed."

This court in Thrower v. Henwood, 351 Mo. 663, 173 S.W.2d 861 stated the rule to be deduced from the Arkansas decisions construing the statute was as follows: "(1) That the injuries were sustained from the operation of a train, by one 'upon the track;' (2) that the injured party was in peril; (3) and that his danger was discoverable so the injury might have been thereafter averted through a proper lookout, if one had been kept by the train operatives. When that showing has been made, the burden shifts to the defendant railroad to show by preponderating evidence either that the required lookout would have been unavailing, or that it was kept and the injuries resulted notwithstanding from the party's own sole negligence."

The only evidence we have on this issue was produced by the railroad. The fireman testified he had a full view of the crossing over Highway 67 from his side of the cab. He first saw plaintiff's automobile following a truck when the vehicles were about 450 to 500 feet from the crossing. At that time the train was about the same distance from the crossing. The truck and plaintiff's automobile were going about forty-five. The train was travelling from thirty to thirty-five. The truck got safely over the crossing ahead of the train. However, as plaintiff's automobile approached the crossing it slowed down from forty-five to fifteen. The fireman did not notice plaintiff stop his automobile as plaintiff testified he did. However, the fireman assumed plaintiff was going to stop before crossing the track because the train was in full view of the automobile, the engine whistle was blowing, the bell was ringing, and plaintiff was decreasing his speed. When the fireman realized plaintiff was not going to stop, he "called over" to the engineer, giving him the signal to stop the train. But before the engineer could put on the brakes plaintiff ran into the side of the engine with the front end of his car as the engine was crossing the highway. Under this evidence we hold there was no showing the railroad could have prevented the accident after plaintiff was seen in peril even though the railroad was keeping a constant lookout as the train approached the crossing. We hold as a matter of law the interval of time after plaintiff was first in a position of peril and up to the time he collided with the engine was too slight, not more than a few seconds, to permit the railroad to avoid the collision.

The rule appears to be well settled by the Arkansas Courts that those keeping a lookout may assume that a person, before crossing a track, will exercise due care for his own safety and ordinarily no duty rests upon the railroad to take any action to stop or slacken the train "until it reasonably appears that such person is entering, or about to enter, a place of danger." Missouri P.R. Co. v. Brewer, 193 Ark. 754, 102 S.W.2d 538. And see Missouri P.R. Co. v. Rogers, 184 Ark. 725, 43 S.W.2d 757; Missouri P.R. Co. v. Campbell, 200 Ark. 1056, 143 S.W.2d 9; and Missouri P.R. Co. v. Merrell, 200 Ark. 1061, 143 S.W.2d 51. In the latter case the court said that there was no duty on a railroad to stop or even slow down the train for a person in a place of...