Tharp v. Thompson, 6081.

• Decision Date: 25 March 1940
• Docket Number: No. 6081.,6081.
• Citation: 139 S.W.2d 1116
• Parties: THARP v. THOMPSON.
• Court: Missouri Court of Appeals

139 S.W.2d 1116

THARP v. THOMPSON.

No. 6081.

Springfield Court of Appeals. Missouri.

March 25, 1940.

Rehearing Denied May 15, 1940.

Appeal from Circuit Court, Jasper County; Wilbur J. Owen, Judge.

"Not to be published in State Reports."

Action by James E. Tharp against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, for personal injuries. From a judgment for plaintiff, defendant appeals.

Affirmed.

Thos. J. Cole, of St. Louis, and David E. Blair, of Joplin, for appellant.

Ray Bond and William M. Vaughan, both of Joplin, for respondent.

FULBRIGHT, Judge.

This is an action for damages for personal injuries sustained by plaintiff when a van-type or closed bodied truck, driven by plaintiff, was struck by the locomotive of a passenger train of defendant at a point where a country road crosses defendant's tracks about a mile northwest of the station at Aurora, Missouri. The cause was tried by jury, and submitted on the humanitarian doctrine, resulting in a verdict and judgment for plaintiff for $1,250, from which said judgment defendant duly appealed.

There seems to be no controversy growing out of the pleadings, hence it is unnecessary to set them out here.

At the point where the accident occurred defendant's track ran in a general northwesterly and southeasterly direction and was paralleled by State Highway No. 39, which was a distance of approximately 75 feet west of the railroad track. This highway intersected the country road on which the accident occurred, about 75 feet west of the railroad crossing. The country road ran due east and west so that the angle formed by the north side of the country road and the west side of the railroad track, at the crossing, was approximately 45 degrees. The railroad track was about six feet higher than the point where Highway 39 intersected the country road to the west, so that there was a slight incline toward the east as a vehicle approached the railroad track on the country road coming from the west. As it extended northwest from the crossing, defendant's track was straight for a distance of some 2,000 feet. At the time of the accident defendant's train was going in a southeasterly direction and plaintiff had been traveling in a southeasterly direction on Highway No. 39, until he turned in an easterly direction on the country road ahead of the train. Raymond Hamilton and a man named Sharp were riding in the seat with plaintiff. The truck was crossing the railroad track but was not entirely in the clear when the rear-end was struck by the aproaching passenger train, resulting in plaintiff's injury.

Plaintiff's evidence tends to show that he did not see the train or hear the whistle until the collision occurred. Defendant's testimony tended to show that the engineer gave the usual crossing signal and seeing plaintiff approaching the crossing and apparently attempting to cross over same ahead of the engine, changed the last long blast of the whistle into short warning blasts; that when plaintiff was near the crossing and the engine about 400 or 500 feet from the crossing the engineer felt for the first time that plaintiff was not going to stop. He put on the sand—there was nothing he could do except to apply the emergency brakes and put on the sand.

Defendant's assignments of error are as follows: (1) That the trial court erred in not granting a new trial because the verdict was excessive. (2) That it erred in not granting a new trial on account of the bias and prejudice of the jury. (3) That it erred in giving to the jury Instruction No. Two. (4) That it erred in refusing to give Instruction No. 8-A offered by the defendant. (5) That the court erred in not giving Defendant's Instruction in the nature of a demurrer to all the evidence.

We shall first consider the fifth assignment. As a basis of this assignment defendant contends that the evidence "shows that plaintiff was not oblivious to the approach of said engine and train but tried to beat said engine and train over said crossing." In passing upon this question defendant admits the truthfulness of all evidence favorable to plaintiff and concedes to the plaintiff every reasonable, favorable inference that may be drawn from the evidence, and under the well established rule all unfavorable evidence must be disregarded. Citation of cases in support of this rule is unnecessary. Keeping in mind the above rule we shall examine briefly the applicable testimony. It is true that defendant's engineer testified that it seemed to him that the speed of the truck gradually increased as it approached the crossing. But, on the other hand, plaintiff testified:

"I turned off the highway and came almost to a stop and put my truck in low to cross this gravel that was ridged up along there. I looked both ways and saw nothing in sight. I didn't hear any whistle and I started on across the gravel and put my truck in second and started on up over the railroad, and when I was just about across the railroad I heard a loud whistle and I heard the crash. * * Could have stopped truck in four or five feet if I had warning—brakes were alright. Not going over eight or ten miles an hour.

"Q. Could you see a train approaching more than 600 feet away? A. If you had warning you possibly could have. * * * Was moving all the time and approaching crossing at seven to ten miles per hour. * * * Going upgrade."

Plaintiff also was asked, on cross examination: "Q. The first you saw I believe you stated, was just as the crash occurred? A. Yes Sir." He also testified that it was cold and the windows in the cab of the truck were closed, at least, the window on his side. Witness Hamilton corroborated the testimony of plaintiff. He testified the truck was going six or seven miles per hour as it approached the crossing and kept about the same speed. Heard no whistle or bell before the accident—was listening and heard no noise. "I didn't see no train and I didn't hear no train—just the next thing I knew why I woke up over in the ditch."

We think the foregoing testimony showed obliviousness on the part of plaintiff and was sufficient to justify the trial court in overruling defendant's demurrer to the testimony.

Assignments Number One and Two will be considered together. The evidence as to plaintiff's injuries was substantially as follows: A deep cut on his forehead and an injury in the shoulder. Clavicle was broken. Plaintiff was unconscious when taken to the hospital where he remained about one week. While in the hospital he was treated by Dr. Smart, who is now deceased. Dr. Davis, of Carthage, then took over the case. He testified: "I saw him at his home first. Plaintiff was suffering from a fracture of the distal end of the clavicle. Had extreme pain in the shoulder and caused shoulder to drop down. Saw scalp wound but it had been sutured. Plaintiff could not use his arm on account of...