Trower v. Missouri-Kansas-Texas R. Co.

• Decision Date: 18 April 1941
• Docket Number: 36603
• Citation: 149 S.W.2d 792,347 Mo. 900
• Parties: Harry A. Trower v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

149 S.W.2d 792

347 Mo. 900

Harry A. Trower v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

No. 36603

Supreme Court of Missouri

April 18, 1941

Appeal from Circuit Court of City of St. Louis; Hon. Thomas L Anderson, Judge.

Affirmed.

Carl S. Hoffman and Everett Paul Griffin for appellant.

(1) The court erred in overruling the demurrer to the evidence and in submitting the case to the jury. The accident happened in the State of Kansas and is governed by the law of that State. Under the law of Kansas, respondent failed to make a case for the jury. Woodward v. Bush, 282 Mo. 163; Caylor v. St. L.-S. F. Ry. Co., 332 Mo. 851; Bollinger v St. L.-S. F. Ry. Co., 334 Mo. 720; Bazzell v. A., T. & S. F. Ry. Co., 5 P.2d 804, Id, 300 P. 1108; Sharp v. Sproat, 208 P. 613; Fair v. Union Traction Co., 171 P. 649; Cooper v. C., R. I. & P. Ry Co., 232 P. 1024; Hooker v. Mo. Pac. Ry. Co., 8 P.2d 394; Kirby v. Kansas City, K. V. & W. Ry. Co., 186 P. 744; Bussey v. M., K. & T. Ry. Co., 71 P. 261; Knight v. A., T. & S. F. Ry. Co., 206 P. 893; Kirkland v. A., T. & S. F. Ry. Co., 179 P. 362; Gilbert v. Mo. Pac. Ry. Co., 139 P. 380; Bush v. Union Pac. Ry. Co., 64 P. 624; Bressler v. C., R. I. & P. Ry. Co., 86 P. 472; Ferguson v. Lang, 268 P. 117; Williams v. St. L.-S. F. Ry. Co., 252 P. 470; Coleman v. A., T. & S. F. Ry. Co, 123 P. 756; Dunlap v. C., R. I. & P. Ry. Co., 123 P. 754; Jamison v. A., T. & S. F. Ry. Co., 252 P. 472; Gaffney v. Railroad, 192 P. 736; Maris v. Lawrence Ry. & L. Co., 158 P. 6; Marple v. Topeka Ry. Co., 118 P. 690; Sec. 8-122, 1933 Supp., R. S. Kan., Ann. 1923. (2) The court erred in granting plaintiff a new trial. (a) It is presumed by appellate court that trial court overruled all grounds in motion for new trial except those specified in the order granting the new trial. Porter v. C., B. & Q. Ry. Co., 28 S.W.2d 1039; Manthey v. Kellerman Const. Co., 277 S.W. 929. (b) The court erred in granting a new trial upon the ground that defendant's Instruction 16 was erroneous. Said instruction was not erroneous, but, on the contrary, properly declared the law. Bleil v. Kansas City, 70 S.W.2d 913; Dietz v. Magill, 104 S.W.2d 710; Manar v. Taetz, 109 S.W.2d 723.

Trusty, Pugh, Green & Trusty and Chelsea O. Inman for respondent.

(1) Plaintiff made a submissible case for the jury upon primary negligence of the defendant. Scott v. Mo. Pac. Ry. Co., 62 S.W.2d 834; Mullen v. St. L. T. Co., 94 S.W.2d 288; Hickman v. Union E. L. & P. Co., 226 S.W. 570; Lambert v. Jones, 98 S.W.2d 752; Gentili v. DiMaria, 89 S.W.2d 93. (a) The collision occurred after sundown and defendant failed to have a headlight burning on the motor train, in violation of Section 66-261, Revised Statutes Kansas 1923. The duty to have such headlight burning was absolute, and defendant's failure was negligence per se. Calvin v. Schaff, 118 Kan. 202. (b) Plaintiff and his wife were guests of the owner and driver of the automobile and so any negligence of the driver may not be imputed to plaintiff or his wife. Calvin v. Schaff, 118 Kan. 202; Corley v. A., T. & S. F. Ry. Co., 90 Kan. 73; Hessler v. Davis, 111 Kan. 515; Denton v. M.-K.-T. Ry. Co., 97 Kan. 498; Nevitt v. A., T. & S. F. Ry. Co., 115 Kan. 439. (c) Plaintiff exercised ordinary care. Under the law of Kansas a guest in an automobile is not always required to keep a lookout for signs or danger but may go to sleep, read a book, or look at the scenery and rely upon the driver, unless he has knowledge of the driver's negligence or incompetence. In this case the plaintiff was keeping a lookout, was the first to discover the train and warn the driver. Plaintiff's failure to see the crossing signs and his failure to sooner discover the train are explained by the physical surroundings, particularly the shadowy condition after sundown and the growth of trees that made a background with which the motor train blended. Farmer v. Central Mut. Ins. Co., 145 Kan. 951; Restatement of Law of Torts, sec. 495, p. 1282; Nevitt v. A., T. & S. F. Ry. Co., 115 Kan. 442; Schaefer v. Interurban Ry. Co., 104 Kan. 394, 179 P. 323; Hessler v. Davis, 111 Kan. 515; Denton v. M.-K.-T. Ry. Co., 97 Kan. 498; Angell v. C., R. I. & P. Ry. Co., 97 Kan. 688. (2) Under the law, pleadings, and evidence plaintiff made a case for the jury under the last chance doctrine of Kansas. When the automobile was 200 feet north of the crossing the brakes of the automobile were applied and the tires made heavy marks on the pavement for a distance of about 110 feet north of the crossing. Smoke was arising from the pavement. There were ditches on each side of the highway. After warning the driver plaintiff was guilty of no negligence but was in helpless peril. It must have been as reasonably apparent to the motorman as it was to the passengers on the train that a collision was imminent when the train was at least 200 feet from the crossing and it could have been stopped in 120 feet, but the brakes were not applied until the train reached the crossing. Muir v. Fleming, 116 Kan. 554; Railway Co. v. Arnold, 67 Kan. 260, 72 P. 857; Atherton v. Topeka Ry. Co., 107 Kan. 7; Dulin v. Met. Ry. Co., 72 Kan. 676; Leinback v. Pickwick Greyhound Lines, 138 Kan. 50; Metropolitan Ry. Co. v. Fawcett, 76 Kan. 522; Nickerson v. Union Traction Co., 94 Kan. 173; K. C., etc., Ry. Co. v. Langley, 70 Kan. 461; Springer v. C. G. & W. Ry. Co., 95 Kan. 409; Johnson v. A., T. & S. F. Ry. Co., 290 S.W. 462; Womach v. Mo. Pac. Ry. Co., 88 S.W.2d 370; Engle v. Bowen, 122 Kan. 283. (3) Under the law, pleadings, and evidence plaintiff made a submissible case of wantonness on the part of defendant which under Kansas law destroys as a defense any alleged contributory negligence of the plaintiff. Consolidated Ry. Co. v. Carlson, 58 Kan. 63; Fabac v. St. L.-S. F. Ry. Co., 119 Kan. 58; Ewing v. Edwards, 140 Kan. 325, 36 P.2d 1021; Aduddell v. Brighten, 141 Kan. 617; Railway Co. v. Lacy, 78 Kan. 629; Tempfer v. Street Ry. Co., 89 Kan. 374; Railway Co. v. Baker, 79 Kan. 183; Witte v. Hutchins, 135 Kan. 776. (4) The court properly granted plaintiff's motion for a new trial for the giving of Instruction 16. This instruction was erroneous in two respects: -- In telling the jury that the burden of proof is upon the plaintiff to prove his case by a preponderance of the evidence, the jury were misled into believing that the burden was upon the plaintiff to prove ordinary care on his part. Raymen v. Galvin, 229 S.W. 749; Hayes v. Sheffield, 221 S.W. 705; Monroe v. C. & A. Ry. Co., 219 S.W. 68; Brewer v. Silverstein, 64 S.W.2d 290; Schide v. Gottschick, 43 S.W.2d 777. In directing a verdict for the defendant if the evidence of plaintiff did not outweigh the evidence of the defendant the jury were clearly told to weigh the plaintiff's witnesses against the defendant's witnesses and to disregard testimony favorable to the plaintiff's case which came from the defendant's witnesses. Charr v. McLoon, 263 S.W. 174, 304 Mo. 249; Barr v. Mo. Pac. Ry. Co., 37 S.W.2d 927; Schroeder v. Rawlings, 127 S.W.2d 683; State ex rel. Hartman v. Thomas, 149 S.W. 320, 245 Mo. 65. (5) It allowed the jury to speculate and, without guidance, form its own opinion as to what would constitute a reasonable distance for stopping the automobile. Monroe v. C. & A. Ry. Co., 219 S.W. 69; Simpson v. C., R. I. & P. Ry. Co., 192 S.W. 741; Kendrick v. Kansas City, 237 S.W. 1011.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action for $ 65,000 damages for personal injuries. Plaintiff was injured when one of defendant's motor trains collided with the automobile in which he was riding at a crossing on Kansas Highway No. 96, near Riverton, Kansas, October 28, 1934. The law of the State of Kansas was duly pleaded, and the cause submitted (1) upon primary negligence, (a) in failing to have a headlight burning, (b) in failing to give reasonable and timely warning signals, and (c) in failing to keep a reasonable and sufficient lookout for automobiles at the crossing; (2) upon negligence under the last clear chance doctrine of Kansas in failing to stop or slacken speed; and (3) upon wanton injury. The answer was a general denial and a plea of contributory negligence. The jury returned a verdict for defendant. Thereafter, plaintiff's motion for a new trial was sustained on account of an alleged error in defendant's instruction No. 16. Defendant appealed.

Plaintiff and his wife were guests of Russell M. Riggins and wife and were returning from Kansas City, Missouri, to their home in Bartlesville, Oklahoma. They were riding in a new Packard sedan owned and driven by Mr. Riggins. Plaintiff was in the front seat, to the right of Mr. Riggins. The ladies were in the rear seat. The highway was straight and level. It was paved with concrete, 20 feet in width, with a shoulder 5 or 6 feet wide on each side and a ditch about 4 or 5 feet in depth beyond each shoulder. The day had been clear. The pavement was dry. The highway was much used by automobile traffic, and the automobiles customarily traveled at high speeds. Defendant's railroad crossed from east to west or a little southeast to northwest. The track was straight except for a slight curve beginning 600 feet east of the crossing. The crossing was generally level with the highway, but the rails were slightly lower than the level of the pavement, and could not be seen until one was right on the crossing. The pavement stopped at the ends of the ties, about 18 inches from the rails, and the ties were covered with planks and black top or macadam with some gravel.

The highway and railroad were higher than the level of an open field east of the highway and north of the railroad. This field had been in corn, but the corn had been cut and shocked. At the crossing, 34 1/2 feet north of the...