Thomasson v. Henwood

• Decision Date: 14 December 1940
• Docket Number: No. 6183.,6183.
• Parties: CHARLES THOMASSON, RESPONDENT, v. BERRYMAN HENWOOD, TRUSTEE FOR THE ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

146 S.W.2d 88

CHARLES THOMASSON, RESPONDENT, v. BERRYMAN HENWOOD, TRUSTEE FOR THE ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, A CORPORATION, APPELLANT.

No. 6183.

Springfield Court of Appeals, Missouri.

December 14, 1940.

Rehearing Denied December 31, 1940.

Appeal from the Circuit Court of Stoddard County. — Hon. James V. Billings, Judge.

REVERSED AND REMANDED (with directions).

M. Walker Cooper for appellant.

(1) Plaintiff's evidence was not sufficient to take his case to the jury upon the charge of negligence under the humanitarian doctrine. (a) In the absence of peril there is no duty to warn; and in the absence of obliviousness there is no duty to warn. Phillips v. Railroad, 87 S.W. (2d) 1035. (b) Obliviousness is certainly a necessary element to make a humanitarian negligence case of failure to warn. Pentecost v. Railroad, 66 S.W. (2d) 533; Scott v. Railroad, 86 S.W. (2d) 116; Womack v. Railroad, 88 S.W. (2d) 368. (c) In humanitarian negligence case based upon duty to warn for the purpose of preventing a person from going immediately into a position of peril it must appear that the injured party's obliviousness could have been known to the defendant if he had exercised ordinary care in keeping a lookout. Womack v. Railroad, 88 S.W. (2d) 368; Lynch v. Baldwin et al., 117 S.W. (2d) 273. (d) Under the humanitarian doctrine, an engineer of a train need not take any steps to avert an accident merely because he sees a motorist approaching a crossing from a point where he is still absolutely safe, since under such circumstances the engineer has a right to assume that the motorist will stop before permitting his vehicle to get upon the tracks or within reach of the overhang of the train. Neill v. Alton Railroad, 113 S.W. (2d) 1073. (e) Though it may have been apparent to the train operatives that the driver of plaintiff's truck approaching the crossing might be oblivious of the approach of the train when he was thirty feet from the track, yet, when he was traveling up an incline at a speed of not more than two or three miles per hour they could assume that he would not continue on and across the track without ever looking, where he was well acquainted with the location and the surroundings. Pinkley v. Railroad, 299 S.W. 100; Elkins v. Public Service Co., 74 S.W. (2d) 600. (f) In this case, and in every other case of similar nature, there must be some evidence, visible to the operatives on the engine, that the person injured did not see the train and was not going to stop before entering into the zone of peril. This must be shown to overcome the presumption that the driver was looking and saw the tracks and saw and heard the approaching train. Alsup v. Henwood, 137 S.W. (2d) 586, 590; Elkins v. Public Service Co., 74 S.W. (2d) 600. (2) After plaintiff elected to dismiss his charge of statutory negligence and to stand upon his charge of negligence under the humanitarian doctrine, it was improper to offer any evidence relative to the giving of the statutory signals for any crossings by this train, and such evidence was prejudicial in this case. (a) The humanitarian doctrine seizes upon the situation at the time of the peril and blots out all prior negligence of either party. Hagerman v. Rodgers, 101 S.W. (2d) 526. (b) Antecedent negligence cannot be considered in determining liability under the humanitarian doctrine. Jordan v. Railway, 73 S.W. (2d) 205; Pentecost v. Railroad, 66 S.W. (2d) 533; Alexander v. Railroad, 38 S.W. (2d) 1023, 1026; State ex rel. v. Bland, 15 S.W. (2d) 798. (3) Instruction No. P-6, offered by the plaintiff and given by the court, was erroneous because: (a) it did require the jury to find that the driver of the truck was oblivious to the oncoming train, but did not require the jury to also find that the defendant's engine operatives knew, or by the exercise of reasonable care could have known, of such obliviousness; (b) it did not require the jury to find that after the enginemen saw, or should have seen the truck entering into, or in, a place of peril, they could thereafter have given a warning in time for the driver of the truck thereafter to have stopped the truck in time to have avoided the collision; and (c) it said, "and if you further find that the failure of the defendant's agents, servants and employees in charge of said engine to ring any bell, or sound any whistle, or in any other manner warn the said Delmar Ballard, in time for him to have stopped the plaintiff's truck and avoid it being hit and struck by defendant's engine was the direct cause of the accident, then your verdict will be for the plaintiff," and it was therefore practically a peremptory instruction to find for the plaintiff unless the jury found that a warning had been given by the bell and by the whistle and in any other (possible) manner. (a) In a humanitarian case based upon a duty to warn for the purpose of preventing a person from going immediately into a position of peril, it is necessary that it appear that the injured party was oblivious to his danger, and that such obliviousness was known to the defendant or could have been known if the defendant had exercised ordinary care. Pentecost v. Railroad, 66 S.W. (2d) 533; Scott v. Railroad, 86 S.W. (2d) 116; Womack v. Railroad, 88 S.W. (2d) 368; Lynch v. Baldwin et al., 117 S.W. (2d) 273. (b) It (the instruction) does omit the elements of plaintiff's peril and the defendant's knowledge thereof in time thereafter to avoid the collision. The omitted elements are basic facts of liability under the humanitarian doctrine. Byrnes v. Poplar Bluff Printing Co., 74 S.W. (2d) 20, 26; Banks v. Morris & Co., 257 S.W. 482; Massman v. Public Service Co., 119 S.W. (2d) 833, 836. (c) The defendant was not required to give a warning by ringing the bell, and also by sounding a whistle, and also in any other (possible) manner; a warning by ringing the bell or by sounding the whistle was sufficient. Wolf v. Hines et al., 224 S.W. 143. (4) In a humanitarian case based upon a failure to warn, the duty to warn arises at the time the defendant sees, or by the exercise of reasonable care should see, that the plaitniff is in, or is immediately about to enter into, a position of peril. Pentecost v. Railroad, 66 S.W. (2d) 533; Scott v. Railroad, 86 S.W. (2d) 116; Womack v. Railroad, 88 S.W. (2d) 368; Lynch v. Baldwin et al., 117 S.W. (2d) 273. (5) There was no evidence in this case that defendant's employees would be discharged, or that it would go hard with them, if they admitted on the witness stand that they did not ring the bell nor sound the whistle. Plaintiff's argument to that effect was for the purpose of creating a prejudice in the minds of the jury against defendant and against the credibility of defendant's witnesses who were employees of defendant; and when counsel oversteps the bounds of propriety in an argument to the jury by appealing to the prejudice of juries, it is the duty of the court, upon an objection being made, to rebuke counsel in such way as to dislodge from the minds of the jury any ill effects which the unwarranted appeal may have placed there, if such ill effects can be removed in that way. Smith v. Railway, 31 S.W. (2d) 105, 107.

C.A. Powell for respondent.

(1) In reviewing the sufficiency of plaintiff's evidence to make issue for the jury, only testimony most favorable to plaintiff is considered by the appellate court, and the plaintiff is given the benefit of all reasonable inferences which may be drawn therefrom. James H. Forbes Tea & Coffee Co. v. Baltimore Bank (Mo.), 139 S.W. (2d) 507; Shroder v. Barron-Dady Motor Co. (Mo.), 111 S.W. (2d) 66; Rowe v. Mo.-Kan.-Tex. Ry. Co., 339 Mo. 1145, 100 S.W. (2d) 480; Alsup v. Henwood (Mo. App.), 137 S.W. (2d) 586; Willhauck v. Chicago, R.I. & P. Ry. Co., 332 Mo. 1165, 61 S.W. (2d) 336. (a) In determining whether a plaintiff has made a case for the jury under the humanitarian doctrine, no contradictory evidence of the railroad will be considered by the appellate court. Hilton v. Terminal R. Assn. of St. Louis (Mo.), 137 S.W. (2d) 520; (b) A railroad has the duty to keep a lookout at a public crossing. Hilton v. Terminal R. Assn. of St. Louis (Mo.), 137 S.W. (2d) 520. (2) There was no error in the respondent's cross-examination of the appellant's witnesses with reference to ringing bells or sounding whistles before the appellant's train reached the crossing where the accident occurred. (a) A witness may be cross-examined as to matters he testifies concerning on direct examination. Asbury v. Fidelity National Bank & Trust Co., 231 Mo. App. 437, 100 S.W. (2d) 946. (b) A railroad company has the common-law duty to warn one of his danger as well as to give statutory signals and even though statutory signals were in fact given. Hoelzel v. Chicago R.I. & P.R. Co., 337 Mo. 61; 85 S.W. (2d) 126; Herrell v. St. Louis-San Francisco Ry. Co., 322 Mo. 551, 18 S.W. (2d) 481. (c) The extent of cross-examination of a witness, even on collateral matters, is largely within the discretion of the trial court, and there is no reversible error on account thereof unless there is a palpable abuse of such discretion. Gardner v. St. Louis Union Trust Co. (Mo.), 85 S.W. (2d) 86; Mann v. St. Louis-San Francisco R. Co. (Mo.), 72 S.W. (2d) 977; Schipper v. Brashear Truck Co. (Mo.), 132 S.W. (2d) 993. (3) There was no error in the giving of Instruction No. P-6 offered by the respondent. (a) In an action under the humanitarian rule, an instruction need not require the jury to find that a plaintiff was oblivious to his peril, nor that a defendant could have known of his obliviousness had he exercised ordinary care in keeping a lookout. Perkins v. Terminal R. Assn. of St. Louis, 340 Mo. 868, 102 S.W. (2d) 915, 920-2, Brown v. Alton R. Co. (Mo. App.), 132 S.W. (2d) 713, 725; Willhauck v. Chicago, R.I. & P.R. Co. (Mo.), 61 S.W. (2d) 336, 338; Wenzel v Busch et al. (Mo.), 257 S.W. 767, 770-1; Jordan v. St. Joseph R.L.H. & P. Co., 335 Mo. 319, 73...