Toeneboehn v. St. Louis-San Francisco Railway Co.

• Decision Date: 16 September 1927
• Docket Number: 25493
• Citation: 298 S.W. 795,317 Mo. 1096
• Parties: Bertha Toeneboehn v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

298 S.W. 795

317 Mo. 1096

Bertha Toeneboehn v. St. Louis-San Francisco Railway Company, Appellant

No. 25493

Supreme Court of Missouri

September 16, 1927

Motion for Rehearing Denied October 10, 1927.

Appeal from Circuit Court of St. Louis County; Hon. J. W McElhinney, Judge.

Affirmed.

E. T Miller, A. P. Stewart and A. E. L. Gardner for appellant.

(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendant at the close of the whole case should have been given. Deceased's contributory negligence bars recovery. (a) The law imposes on deceased, in the operation of his motor vehicle on a public highway, the duty to exercise the highest degree of care to protect himself against injury. Laws 1921 (1st Ex. Sess.) p 91, sec. 19; Monroe v. Railroad, 297 Mo. 633; Threadgill v. Railways, 279 Mo. 466; Jackson v. Tel. Co., 281 Mo. 358; Freie v. Railway (Mo. App.), 241 S.W. 674. (b) If the view was obstructed, it was deceased's duty, in the exercise of even ordinary care, to have stopped his automobile while in a place of safety, so that he might have ascertained whether a train was near at hand before driving into the danger zone. Monroe v. Railroad, 297 Mo. 654. (c) It was the duty of deceased to look or listen at the first opportunity after passing the obstruction. The evidence discloses a situation where to look was to see, and to listen was to hear; hence it will be presumed either that he did not look or listen, or that he did not heed what he saw or heard. In any view of the evidence deceased's contributory negligence conclusively appears, and there can be no recovery as for primary negligence on the part of defendant. Monroe v. Railroad, 297 Mo. 654; State ex rel. v. Bland, 237 S.W. 1018; Burge v. Railroad, 244 Mo. 96; Kelsay v. Railroad, 129 Mo. 372; Hayden v. Railroad, 124 Mo. 572; Porter v. Railway, 199 Mo. 82; Huggart v. Railway, 134 Mo. 679; Sanguinette v. Railway, 196 Mo. 466; Evans v. Railway, 289 Mo. 493; Alexander v. Railway, 289 Mo. 599; Langley v. Hines, 207 Mo.App. 587; Freie v. Railway, 241 S.W. 674; Lyter v. Hines, 224 S.W. 843; Stillman v. Railway, 266 S.W. 1008; Bradley v. Railroad, 288 F. 487; Tannehill v. Ry. Co., 279 Mo. 165. (2) Instruction 2 given for plaintiff is erroneous and prejudicial, and the giving of same constituted reversible error. (a) There was no evidence authorizing the submission to the jury of the question whether the speed of the train was unreasonable or negligent, nor from which the jury could find that it was unreasonable or negligent. McGee v. Railroad, 214 Mo. 530. It is reversible error to give instructions which are not supported by the evidence. Evans v. Railway, 106 Mo. 594; Paddock v. Somes, 102 Mo. 239; Marr v. Bunker, 92 Mo.App. 661; Chambers v. Railway, 111 Mo.App. 612. (b) This instruction authorized a finding for plaintiff if defendant failed to give either of the statutory signals by bell or whistle. The instruction as framed required the giving of both, whereas the statute is complied with by giving one or the other. Turner v. Railway, 78 Mo. 580; Cathcart v. Railway, 19 Mo.App. 119; Halferty v. Railway, 82 Mo. 97; Braddy v. Railroad, 47 Mo.App. 522. (c) This instruction permitted the jury, without any evidence to guide them, to set up their own standard as to what "railroad management, in the exercise of ordinary care," required with respect to placing a watchman, flagman or alarm bell or device at the crossing. Chrismer v. Tel. Co., 194 Mo. 189; Harrelson v. Railroad, 151 Mo. 482. (d) This instruction further constituted a roving commission to the jury to find that defendant "failed to use such precaution as they might find from the evidence ordinary care required." Instructions should be based on both the pleadings and the evidence. Black v. Railway, 217 Mo. 685; State ex rel. v. Ellison, 270 Mo. 645. (3) Instruction 4, given for plaintiff, is erroneous, in that it informed the jury that deceased was not guilty of contributory negligence if they found that he exercised ordinary case. The measure of care required of him by the law was the highest degree of care; and failing to exercise that degree of care, he was guilty of contributory negligence. Authorities supra. (4) Instruction 5 given for plaintiff is erroneous, misleading and prejudicial. Under all the evidence, to look was to see, and to listen was to hear. Under such circumstances, the presumption arises that deceased did not look or listen, or, if he did, that he did not heed what he saw or heard. In either case he was guilty of contributory negligence. Kelsay v. Railway, 129 Mo. 374; Porter v. Railway, 199 Mo. 98; Sanguinette v. Railway, 196 Mo. 495; Stillman v. Railway, 266 S.W. 1009. (5) Plaintiff's given Instruction 6, on the amount of recovery, is erroneous and not supported by the evidence. It does not direct the jury to assess a penalty against defendant, in the event they found for plaintiff, but proceeds on the theory of damages. It authorizes the jury, in determining the amount of their award, to consider pecuniary loss, as well as the life expectancy of deceased, without any evidence whatever upon which to base an estimate. Treadway v. Railways, 300 Mo. 156; Grier v. Railway, 286 Mo. 523; Lackey v. Railways, 288 Mo. 120.

Wilson & Trueblood for respondent.

(1) The demurrer to the evidence was properly overruled, because: the question of deceased's contributory negligence was for the jury. It could not be said as a matter of law that deceased was guilty of contributory negligence. Shaeffer v. Railroad Co., 254 S.W. 257; Hoff v. Wabash Ry. Co., 254 S.W. 874; Norton v. Davis (Mo. App.), 265 S.W. 107. (2) Plaintiff's Instruction 2 was proper because: (a) There was evidence of common-law negligence with reference to the speed of the train. Montague v. Railroad, 264 S.W. 813; Holden v. Railway, 177 Mo. 456; Shaeffer v. Ry. Co., 254 S.W. 257. (b) The instruction did not require giving a warning by both bell and whistle, but simply required that the statutory warning be given either "by bell or whistle." Sec. 9943, R. S. 1909; Hoff v. Wabash Ry. Co., 254 S.W. 874. (c) The instruction did not permit the jury to set up their own standard with reference to guarding the railroad crossing or give the jury a roving commission, but required the jury to find from the evidence that the surrounding circumstances and conditions were such that the crossing was rendered unusually dangerous and hazardous and that ordinary care upon the part of those charged with the management of the railway required that a watchman or warning device be placed at the crossing, and the instruction properly limited the jury to the precautions shown by the evidence to be necessary. Welsch v. Ry. Co., 72 Mo. 451; Weller v. Ry. Co., 23 S.W. 1061, 16 Am. Law Rep. 1273. (3) Plaintiff's Instruction 4 was not erroneous because defendant's answer pleaded that deceased was guilty of contributory negligence by a failure to exercise "ordinary care," and the defendant instructed on that theory. Defendant did not plead or ask instructions upon the theory that the deceased was required to exercise the highest degree of care for his own safety. Defendant is bound by the theory upon which it tried the case below. Kenefick v. Insurance Co., 205 Mo. 294, 103 S.W. 957; Gordon v. Park, 219 Mo. 600, 117 S.W. 1163. (4) Plaintiff's Instruction 5 was proper because it was to be presumed that the deceased was in the exercise of care commensurate with the circumstances. It rested upon the defendant to prove contributory negligence on the part of the deceased. Norton v. Davis, 265 S.W. 107; Weller v. Ry. Co., 164 Mo. 180; Friese v. Ry. Co., 241 S.W. 671; Hickman v. E. L. & P. Co., 226 S.W. 570. (5) Plaintiff's Instruction 6 properly instructed upon the measure of damages. Greer v. Railway, 286 Mo. 523; Treadway v. United Rys. Co., 253 S.W. 1037; Lackey v. United Rys. Co., 288 Mo. 120; Sec. 4217, R. S. 1919; McDaniel v. Davis, 266 S.W. 710.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

This cause is now being considered upon the rehearing, granted by this court. The plaintiff is the widow of Charles J. Toeneboehn, deceased, who was killed on July 16, 1922, when an automobile truck driven by him was struck by the engine of one of defendant's passenger trains, at the crossing of defendant's track and Vermont Avenue, a public highway in St. Louis County, not far distant from the limits of the city of St. Louis. The plaintiff had a verdict and judgment for $ 8,400.

Vermont Avenue runs north and south, and the deceased was driving northward. Defendant's track approaches and crosses Vermont Avenue from southeast to northwest, and the train was running from southeast to northwest. The track approaches the crossing at an acute angle. The inner angle of the intersection of Vermont Avenue and defendant's track is only a little more than twenty-eight degrees. The crossing is in a cut, and in approaching it from the south, on Vermont Avenue, there is a descending grade; and defendant's track approaches from the southeast upon a descending grade. There is an embankment along the southwest side of defendant's track on the east side of Vermont Avenue, and near the crossing; and, at the time of the occurrence, there was a growth of grass and weeds upon the embankment, and there was a mile-post sign on the southwest side. A more particular description of the physical surroundings will be given later.

Vermont Avenue extends northward from the village of Afton, or from Gravois Road, in St. Louis County, to an intersection with a road known as Heege Road, at a point four or five hundred feet north of this crossing. Afton is upon the line of defendant's road, that being the name of the postoffice but the station at...