Ward v. Missouri Pacific Railway Company

• Citation: 277 S.W. 908,311 Mo. 92
• Decision Date: 25 November 1925
• Docket Number: 24681
• Parties: JOSEPHINE I. WARD v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: United States State Supreme Court of Missouri

277 S.W. 908

311 Mo. 92

JOSEPHINE I. WARD v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

No. 24681

Supreme Court of Missouri

November 25, 1925

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

Affirmed.

James F. Green, H. H. Larimore, A. E. L. Gardner and M. U Hayden for appellant.

(1) The judgment in this case should be reversed for the reason that there is no evidence in the record which possesses any of the allegations of negligence in respondent's petition. The only allegations of negligence which were attempted to be proved were those with respect to the speed of the train, the failure to warn and the alleged obstructions. Evidence was introduced tending to establish that the train was running between forty and fifty miles an hour as it approached and passed over this road crossing, and there was evidence by some witnesses to the effect that those witnesses did not hear the sound of the whistle or bell as the train approached. (a) This accident did not occur within the limits of any incorporated city or village. It was, therefore, not negligence per se for appellant to operate its train over this crossing or in the vicinity of it at a rate of speed of forty to fifty miles an hour. Powell v. Railway Co., 76 Mo. 80; Wallace v. Railroad Co., 74 Mo 594; Maher v. Railroad, 64 Mo. 267; Rollison v. Railroad, 252 Mo. 537; McGee v. Railroad, 214 Mo. 541; Burge v. Railroad, 244 Mo. 103. (b) The evidence of some witnesses that they did not hear either bell or whistle sounded on the engine of this train, as it approached the crossing, is insufficient to establish the allegation of negligence for failure to warn, for the reason that there is no evidence from these witnesses as to whether or not they were in a position to hear either the bell or whistle or whether they were paying sufficient attention to have observed either, or both, or whether there was any other noise around them precluding their hearing either or both. Furthermore, some of these same witnesses testified that they heard the "roar" of the train as it approached the crossing, in which event the failure to sound the bell or whistle, if there had been such failure, was not the proximate cause of the collision between the train and the automobile, in which respondent's husband was riding. Rollison v. Railroad, 252 Mo. 525. (2) The giving of Instruction 2 at the instance of respondent was error warranting a reversal or this judgment. This instruction purported to cover the case for respondent and, upon a finding of the facts therein hypothesized, the jury were instructed to return a verdict in favor of respondent. The instruction was so long as to be useless as a guide to the jury. It assumed as true, facts which were in dispute. It was broader than the allegations of the petition and it was beyond the scope of the evidence and it did not correctly inform the jury of the law governing the conduct of one riding as a guest in an automobile nor with respect to the negligence, if any, of the driver of the automobile and the effect of such negligence. Degonia v. Railroad, 224 Mo. 564; Hall v. Coal Co., 260 Mo. 351; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; State ex rel. Long v. Ellison, 272 Mo. 571; Zini v. Term. Railroad Assn., 235 S.W. 86; Miller v. Busey, 186 S.W. 983; Crow v. Railroad, 212 Mo. 589; Orris v. Railroad, 279 Mo. 1; Gott v. Railroad, 222 S.W. 827; Glaser v. Rothschild, 221 Mo. 180; Quirk v. Railway Co., 200 Mo.App. 585; Endy v. Lead Co., 220 S.W. 504; Cowan v. Brick Co., 222 S.W. 924. (3) The giving of Instruction 7 was reversible error. This instruction was upon the measure of damages and did not correctly inform the jury of the measure of damages, and authorized the jury to consider facts and circumstances which were wholly immaterial in the consideration of the question of respondent's damage. Grier v. Ry. Co., 286 Mo. 523; Lackey v. Rys. Co., 288 Mo. 144; Treadway v. Rys. Co., 300 Mo. 156; Academy v. Bobb, 52 Mo. 357; State v. Kavanaugh, 133 Mo. 452; Eickhoff v. Ry. Co., 106 Mo.App. 541; Dix v. Martin, 171 Mo.App. 266; State v. Macom, 186 S.W. 1157.

Claude M. Crooks and Charles E. Morrow for respondent.

(1) The demurrer to the evidence was properly refused. (a) The crossing in question was a traveled public road within the meaning of Sec. 9943, R. S. 1919. The defendant and the adjoining proprietors had unequivocally dedicated it and improved it for a road; the defendant had put up the usual road crossing sign; the defendant maintained a station as well as a gravel platform at and over this crossing where passengers were received and discharged, for more than eight years; and the public had accepted the same by generally and continuously traveling over it for that length of time. On question of dedication: Board v. McPherson, 172 Mo.App. 374; Rose v. St. Charles, 49 Mo. 509; Naylor v. Harrisonville, 207 Mo. 348; Drimmel v. Kansas City, 180 Mo.App. 344. On question of amount and character of travel: Patton v. Forgey, 171 Mo.App. 1; Phelps v. Dockins, 234 S.W. 1022. (b) But even if the road in question was not a traveled public road within the meaning of the statute, the crossing was a public highway within the sense essential to impose upon the defendant the common law of obligation to exercise ordinary care for the safety of persons traveling over it by giving a signal by bell or whistle. Compton v. Railroad, 165 Mo.App. 297; Sites v. Knott, 197 Mo. 615; Owen v. Delano, 194 S.W. 756; Russell v. Railroad, 70 Mo.App. 95; Yoakum v. Ry. Co., 199 S.W. 263; 22 R. C. L. sec. 232. (c) Even if the crossing was a private one, the situation required the defendant to exercise ordinary care to give warning of the approach of the train. Wiese v. Ry. Co., 166 N.W. 66. The crossing was maintained for the mutual interest of the defendant and the adjoining proprietors. Lake Erie Railroad Co. v. Fleming, 183 Ind. 511. (2) While it may be that it is not negligence per se for a railroad to run at any rate of speed in the country, under the circumstances of this case there was evidence tending to show that the defendant violated its common-law duty in running the train at a greater rate of speed than was reasonable, having regard to the time, place and circumstances. Montague v. Railroad, 264 S.W. 813; Shaffer v. Railroad, 254 S.W. 257; Holden v. Railroad, 177 Mo. 456; 22 R. C. L. sec. 189; 33 Cyc. 921. (3) Instruction 2 is within the purview of both the pleadings and the evidence. (a) It does not assume that the defendant's employees did not exercise ordinary care to anticipate persons on the crossing. (b) It is not erroneous in stating that if the jury found the facts required then it became the duty of the engineer to exercise ordinary care to give timely warning of the approach of the train to the crossing. Shaffer v. Ry. Co., 254 S.W. 257; Yoakum v. Ry. Co., 199 S.W. 263; Louisville Ry. Co. v. Morgan, 174 Ky. 633; Kerr v. Bush, 215 S.W. 398. Even if the instruction does not correctly state defendant's duty in this respect, it required the jury to find that defendant failed to give any warning by bell or whistle, and is sufficient. Garard v. Coal Co., 207 Mo. 242; Bradley v. Ry. Co., 138 Mo. 293. (c) The instruction does not contain an unwarranted comment upon the evidence tending to establish a user of the crossing. (d) It does not assume that the engine was running at a greater rate of speed than was reasonable, but requires the jury to find that fact and also that in so doing the defendant and its engineer failed to exercise ordinary care. (4) There were two assignments of negligence submitted to the jury in Instruction 2, and the jury were required to and by its verdict did find the defendant guilty of negligence in both respects. Even if one of the assignments of negligence was not proven or incorrectly submitted in the instruction, if the other assignment was proven and is correctly susmitted in the instruction, it does not constitute reversible error. McIntire v. Ry. Co., 286 Mo. 252; McKenzie v. Randolph, 257 S.W. 126; Moyer v. Railroad, 198 S.W. 842; Gibler v. Railroad, 129 Mo.App. 101; Jackson v. Railroad, 171 Mo.App. 443; Barker v. Lumber Co., 217 S.W. 588; Chambers v. Hines, 208 Mo.App. 331. (5) Plaintiff's instruction on the measure of damages is correct. Greer v. Railroad, 286 Mo. 523; Treadway v. U. Rys. Co., 300 Mo. 156; Lackey v. U. Rys. Co., 288 Mo. 120; R. S. 1919, sec. 4217. Said instruction does not assume that an additional burden was cast upon plaintiff of supporting the minor children.

OPINION

White, J.

The plaintiff, in the Circuit Court of St. Louis County, sued for damages on account of the death of her husband, Albert Hesse, who was killed through the alleged negligence of the defendant in operating its train. She recovered judgment June 7, 1922, for $ 8,000, and the defendant appealed.

Albert Hesse was killed July 7, 1921, while riding in a Ford automobile as the guest of one Otto C. Carpenter, when the latter drove across the tracks of defendant at a place called Lake Hill in St. Louis County. Lake Hill, seventeen and one-half miles west of St. Louis, on the south side of the defendant's railway tracks, was an amusement resort, consisting of dancing and dining pavilions, swimming pool, lake for boating, stands and concessions. Defendant maintained a station there where passengers sometimes were received and discharged.

A public highway, called Daugherty Ferry Road, runs parallel with the railroad tracks a short distance north of Lake Hill. A road runs south from Daugherty Ferry Road, and crosses the defendant's tracks at Lake Hill. There is some dispute as to the character of this road, but the defendant displayed a sign over it, "Railroad Crossing," and appellant's counsel in his brief admits that...