Vowels v. Mo. Pac. Railroad Co.

Decision Date18 May 1928
Docket NumberNo. 25574.,25574.
Citation8 S.W.2d 7
CourtMissouri Supreme Court

Appeal from New Madrid Circuit Court. Hon. Henry C. Riley, Judge.


James F. Green and J.C. Sheppard for appellant.

(1) Although the courts have held that an occupant of an automobile who is not driving, or controlling the driving of same, is not required to exercise the same degree of care at a crossing as the driver thereof, yet few, if any, courts have held that an occupant of a vehicle may intrust his safety absolutely to the driver of the vehicle, regardless of the imminence of the danger or the visible lack of ordinary caution on the part of the driver to avoid harm. Fechley v. Traction Co., 119 Mo. App. 366; 3 Elliott on Railroads (3 Ed.) sec. 1670; Leapard v. Ry. Co., 214 S.W. 268; Burton v. Pryor, 198 S.W. 1117: Friedman v. United Rys. Co., 293 Mo. 235. (2) The basis on which a recovery under the humanitarian rule in a crossing case is founded is that the party approaching the crossing either does not see the train coming or unwisely attempts to cross in front of it, and that those in charge of the train know or have reason to believe that the party approaching the crossing will not stop or slow down to permit the train to pass, and with that knowledge and belief, fail, after their discovery of the peril of the party approaching the crossing, to use the proper care to avoid a collision. Betts v. Ry. Co., 253 S.W. 1089; Anderson v. Davis, 215 Mo. App. 318; Reno v. Sub. Ry., 180 Mo. 469; Holteamp v. Railroad Co., 208 Mo. App. 304. (3) The verdict of the jury is excessive. Corn v. Railroad. 228 S.W. 78; Chapman v. Railroad, 289 Mo. 130; Chambers v. Hines, 208 Mo. App. 222: Morris v. Railroad, 239 Mo. 695; Henson v. Railroad, 277 Mo. 443: Wagner v. Const. Co., 203 Mo. App. 427; Riggs v. Railroad. 212 S.W. 878; Smith v. Railroad, 279 Mo. 173: Turnbow v. Railroad, 277 Mo. 644: Meeker v. Union Electric Co., 279 Mo. 574; Lesenden v. Railroad, 238 Mo. 249. (4) The remarks of counsel for the plaintiff were prejudicial and having been sanctioned by the court and a very large verdict rendered by the jury, a new trial should be granted for this reason. Jackman v. Ry. Co., 200 Mo. App. 368: Neff v. City of Cameron, 213 Mo. 350. (5) The court erred in refusing defendant's demurrers to the evidence at the close of the whole case, for the reason that the evidence fails to support a verdict for the plaintiff and the court should have held, as a matter of law, that plaintiff's own negligence was the proximate cause of her injuries. Betts v. Ry. Co., 253 S.W. 1089; Anderson v. Davis, 215 Mo. App. 318; Reyno v. St. Louis Sub., 180 Mo. 469; Alexander v. Railroad, 233 S.W. 48; Payne v. Railroad, 136 Mo. 575; Evans v. Railroad, 289 Mo. 493: Benedict v. Wells, 253 S.W. 394. Any number of cases may be cited holding that plaintiff's contributory negligence prevents a recovery as a matter of law when she fails to stop, look or listen for an approaching train.

H.C. Blanton, M.E. Montgomery and M.G. Gresham for respondent.

(1) The court did not err in submitting the case to the jury. (a) Defendant is estopped to deny that case was made for the jury: Where plaintiff pleads several acts of negligence, and the defendant interposes merely a general demurrer which the court overrules, and the defendant asks no specific withdrawal instruction, but joins in submitting any of such assignments of negligence to the jury, defendant thereby estops himself to deny that a case was made for the jury on such assignment. Torrance v. Pryor, 210 S.W. 430; State ex rel. v. Allen, 272 S.W. 925; Schroeder v. Wells, 276 S.W. 60; Crum v. Crum, 231 Mo. 626: Davidson v. Hines, 246 S.W. 295; Ray v. Cement Co., 273 S.W. 1078. (b) Plaintiff's evidence must be taken as true, and she is entitled to the benefit of all the evidence and all favorable inferences that may be drawn therefrom. Stauffer v. St. Ry., 243 Mo. 305; Lorton v. Railroad Co., 267 S.W. 385; Carl v. Ry. Co., 258 S.W. 72; Lambert v. Wells, 264 S.W. 37; Van Hemelen v. Eads, 244 S.W. 942. (c) Countervailing inferences favorable to defendant will not be drawn. Maginnis v. Railroad, 268 Mo. 667; Troll v. Drayage Co., 254 Mo. 332; Stewart v. Laclede Gas Light Co., 241 S.W. 909; Smallwood v. Railroad, 263 S.W. 550. (d) Contributory negligence is no defense under the humanitarian doctrine. Logan v. Railroad, 300 Mo. 611; Hale v. Ry. Co., 287 Mo. 499; Phillips v. Ry. Co., 226 S.W. 863; Fledderman v. Mfg. Railway Co., 254 S.W. 717; Lambert v. Wells, 264 S.W. 37. (e) Each case is dependent upon its own facts, Ellis v. Met. Co., 234 Mo. 657; Betz v. Railway, 253 S.W. 1089; Koontz v. Wabash, 253 S.W. 413. (f) Enginemen are required to keep a lookout and they will be held to have seen what they could have seen by looking. State ex rel. Wabash v. Trimble, 260 S.W. 1000; Ellis v. Met. Railway, 234 Mo. 657; Logan v. Railroad Co., 330 Mo. 611; Koontz v. Wabash, 253 S.W. 443; Moore v. Frisco Railway, 267 S.W. 945. (g) Danger zone may extend beyond the tracks and begins when it becomes apparent to a prudent operator that the injured person was intent on so acting as to place herself in a position of danger. State ex rel. v. Trimble, 260 S.W. 1002; Tavis v. Bush, 280 Mo. 383; Koontz v. Wabash, 253 S.W. 413. (h) Upon first appearance of danger, enginemen must warn persons by giving signals. Maginnis v. Railway, 268 Mo. 667; Epstein v. Mo. Pac., 197 Mo. 720; Chamberlain v. Mo. Pac. Ry., 133 Mo. 587. (i) The duty to stop or slacken the speed of the engine begins when it should have become apparent that plaintiff was unconscious of the approach of the train and intended to go upon the track. Dutcher v. Railway, 241 Mo. 137; Albert v. United Railway, 232 S.W. 793; Holden v. Mo. Railway, 177 Mo. 456. (j) Defendant is liable under the humanitarian doctrine if injury could have been averted by either stopping train, slacking the speed, or by giving warning signals. Chapman v. Mo. Pac. Railway, 269 S.W. 688; Zumwalt v. C. & A. Railway, 266 S.W. 717; Logan v. Railway, 300 Mo. 611; Moore v. Frisco Railway, 267 S.W. 945. (2) The court did not err in giving plaintiff's instruction numbered two. (a) Where answer of defendant pleads that plaintiff did not look or listen, there is no necessity for plaintiff to allege obliviousness of plaintiff, nor to prove it, nor embody it in her instructions. Fledderman v. Mfg. Railway, 254 S.W. 717; Crockett v. Railway, 243 S.W. 902; Dincler v. Railway, 265 S.W. 113; Hart v. Railway, 265 S.W. 116: Packer v. Railway, 265 S.W. 119; Bruns v. Railway, 251 S.W. 760. (b) Enginemen had no right to assume plaintiff would stop before reaching the crossing, under the facts. Enginemen know, or ought to know, that where plaintiff is oblivious of her perilous position, they have no right to assume she will stop before reaching the track. Logan v. Railway, 300 Mo. 611; Chapman v. Mo. Pac. Railway, 269 S.W. 688; McBride v. Wells, 263 S.W. 469; Ellis v. Met. Ry. Co., 234 Mo. 657; Peterie v. Met. Ry. Co., 177 Mo. App. 359; Holden v. Mo. Ry. Co., 177 Mo. 456. (c) Enginemen cannot assume person will stop where they do not see person in approaching crossing in perilous position. Logan v. Railway, 300 Mo. 611. (3) The verdict is not excessive. Each case must be decided on its own merits: consideration should also be given to the diminished value of the dollar; and due consideration given the judgment of the jury and trial court. Hurst v. Railway, 280 Mo. 566; Laughlin v. K.C. So. Ry., 275 Mo. 459; Mabe v. Mfg. Co., 271 S.W. 1023; Smith v. K.C. So. Ry., 279 Mo. 173; Skinner v. Davis, 271 S.W. 992.


This is an appeal from a judgment of $17,500 awarded as damages for personal injuries sustained by respondent when one of appellant's trains collided with an automobile in which she was riding. The train was eastbound out of Sikeston, Missouri, and the collision occurred where the public road on the north side of the railroad right of way turns south and crosses the track about a mile east of appellant's station at Sikeston. Respondent lived a short distance south of this crossing, and at her request was being driven home with her two small children by her brother-in-law, Henry Bolden, in a new Ford coupe. Two of Bolden's small children were also in the car.

Plaintiff charged negligence on account of the dangerous, defective and unlawful condition in which defendant's crossing and approaches were constructed and maintained, and also under the humanitarian or last-chance rule. Defendant's answer was a general denial coupled with a plea of contributory negligence. At the close of plaintiff's case and again at the close of the whole case defendant interposed a demurrer to the evidence which was both times overruled.

Among the instructions given at the request of plaintiff, after defendant's demurrer to the whole case was overruled, was one on the alleged negligence in constructing and maintaining dangerous and defective crossing and approaches, to the giving of which defendant duly excepted. Subsequently while the case was being argued to the jury plaintiff askes leave to withdraw this instruction. Leave was granted and the court publicly announced to the jury that this instruction was withdrawn from their further consideration. The case thus finally went to the jury solely on the humanitarian or last-chance theory of negligence.

Appellant presents four assignments of error, the first of which is that "the court erred in giving to the jury plaintiff's Instruction No. 2, for the reason that said instruction, being based on the humanitarian rule, does not properly declare the law in that it does not require the jury to find that Automobile: the agents and servants of the defendant saw, or Presumed to could by the exercise of ordinary care have seen, Stop. the plaintiff in a perilous position in time, by the exercise of ordinary care, to have prevented...

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4 cases
  • Vowels v. Missouri Pac. R. Co.
    • United States
    • Missouri Supreme Court
    • May 18, 1928
    ... 8 S.W.2d 7 320 Mo. 34 Dela Vowels v. Missouri Pacific Railroad Company, Appellant No. 25574 Supreme Court of Missouri May 18, 1928 ...           Motion ... for Rehearing Denied June 21, 1928 ...          Appeal ... from New Madrid Circuit Court; Hon. Henry C. Riley , ...           ... Affirmed ...           James ... ...
  • Meyer v. Clark Oil Co., 47111
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    ...], and the same is true when there is no request that the trial court reprimand counsel for improper argument. Vowels v. Missouri Pac. R. Co., 320 Mo. 34, 8 S.W.2d 7 [ (1928) ]." Olsten v. Susman, 391 S.W.2d 328 (Mo.1965). The record is silent as to any relief plaintiff's counsel expected t......
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    • May 25, 1928
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