Whiffen v. Missouri Pacific Railroad Company
| Decision Date | 09 April 1924 |
| Parties | R. E. WHIFFEN, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Butler County.--Hon. Almon Ing Judge.
AFFIRMED.
Judgment affirmed.
James F. Green and J. C. Sheppard for appellant.
(1) The court erred in refusing to give to the jury appellant's instruction in the nature of a demurrer to the evidence at the close of respondent's evidence for the reason that it clearly appears that respondent and his driver were guilty of such negligence as precludes a recovery as a matter of law. Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 362; Hayden v. Ry. Co., 124 Mo. 566; Evans v. Ry. Co., 289 Mo. 492, 233 S.W. 397; State ex rel. Hines v. Bland, 237 S.W. 1018; Landrum v. Ry. Co., 178 S.W. 273; Tannehill v. Ry., 279 Mo. 158, 213 S.W. 818. (2) The court erred in giving respondent's instruction No. 2, for the following reasons: (a) Said instruction allowed respondent to recover on the last clear chance doctrine while there is no case made by the evidence on this theory. Alexander v. Ry. Co., 233 S.W. 44, and cases cited. (b) Said instruction permits the jury to find for respondent "provided you find that the plaintiff and his driver in charge of the truck, in approaching and attempting to cross the track, was oblivious of danger" regardless of the fact that the engineer did not know of the obliviousness. Coby v. Railway, 174 Mo.App. 648. (3) Excessive speed of a train in violation of city ordinance does not absolve the traveler from the duty of exercising care before crossing the track, and where he could have seen the train in time if he had looked and listened, but failed to do so, his own negligence was the proximate cause of his injury. Holtcamp v. Railroad Co., 234 S.W. 1054, 208 Mo.App 316; Alexander v. Ry. Co., supra. (4) There is no evidence that respondent relied upon the fact that the engineer would obey speed ordinance, or that he knew of it. Mokowik v. Railroad, 196 Mo. 550. (5) If instruction No. 3-a is the law of this case, then instruction No. 2 is not, and is in conflict therewith, for the reason that No. 2 submits the last chance doctrine, and No. 3-a does not.
Welker & Mulloy for respondent.
(1) (a) Demurrer to the evidence admits the truthfulness of every fact which the evidence tends to prove, as well as every reasonable inference deducible therefrom. Davis v. Greenwell, 212 S.W. 22; Murrell v. Railway Co., 279 Mo. 92, 213 S.W. 694; Rosendale v. Ry. Co., 213 S.W. 169; Lavine v. United Rys. Co., 217 S.W. 574; Ulrich v. Ry. Co., 252 S.W. 377. (b) It has been repeatedly held that, where a demurrer to plaintiff's evidence is overruled, the defendant, by offering its own evidence, instead of standing on its demurrer, waives its right to object to the ruling of the court, supra, as it then becomes the duty of the jury to consider all the testimony in passing upon the case. Kaemerer v. Wells, 252 S.W. 730, l. c. 732, and cases cited. (c) On demurrer to evidence at close of entire case, plaintiff's evidence must not only be taken as true, but defendant's contradictory evidence must be taken as untrue. Conley v. LaFayette Motor Co., 221 S.W. 165. (d) On demurred to the evidence at the close of the entire case, the court must take the plaintiff's evidence as true, and draw every reasonable inference in his favor, and also take into account evidence of defendant favorable to plaintiff. Lynch v. Gas Light Co., 233 S.W. 111. (e) It will be presumed that he knew of the existence of an ordinance limiting the speed of trains and that he relied on defendant running its trains at a rate of speed not in excess of that limited. The same presumption applies to Revised Statutes 1919, section 9943, requiring defendant to give signal. (f) Where plaintiff shows the statutory signals as required by sec. 9943, Revised Statutes 1919, were not given, and the fact of injury, the burden then rests upon the defendant to show that plaintiff was guilty of contributory negligence or that its failure to give such signals was not the proximate cause of the injury. Schultz v. R. R. Co., 223 S.W. 757; Monroe v. R. R. Co., 219 S.W. 68; McGee v. Ry. Co., 214 Mo. 530, l. c. 544, 144 S.W. 33; McNulty v. Ry. Co., 203 Mo. 475, l. c. 544, 101 S.W. 1082; Morrow v. Hines, 233 S.W. 493. (g) A general demurrer to the evidence is properly overruled if there is sufficient evidence to go to the jury upon any assignment of negligence alleged. Conely v. Railroad Co., 253 S.W. 424; Torrance v. Pryor, 210 S.W. 430. (2) (a) Where the petition contained allegations of negligence under the humanitarian rule together with other specifications of negligence, the plaintiff was not restricted to a recovery under the humanitarian rule alone. Israel v. Wabash R. Co., 239 S.W. 80, l. c. 83. (b) Where the instruction given at the request of defendant distinctly put before the jury the issue that defendant relied upon as a defense, defendant cannot complain that the jury was not properly instructed as to the real issue in the case. King v. Metropolitan Ins. Co., 211 S.W. 721. (3) (a) Plaintiff's testimony alone that he was unaware of the approach of the train, is sufficient to take the case to the jury on the question of whether he was oblivious to peril. Koontz v. Wabash Ry. Co., 253 S.W. 413. (b) Under the humanitarian doctrine there is no requirement that the jury find that the engineer, or those in charge of the train, observed plaintiff's obliviousness to danger; it is only necessary that the jury find from the evidence that the engineer, or those running the train, saw, or by the exercise of ordinary care could have seen plaintiff in such position. Ganz v. Rys. Co., 220 S.W. 490-497; Koontz v. Wabash Ry. Co., supra; Wolf v. Wabash Ry. Co., 251 S.W. 441-446. (c) Obliviousness to peril, as contemplated within the humanitarian doctrine, is defined to be the position of one who has not knowingly placed himself in a position of danger. Karte v. Mfg. Co., 247 S.W. 417, l. c. 423; Kinlen v. Ry., 216 Mo. 145, 115 S.W. 523. (d) It is not necessary to allege that plaintiff was oblivious to the danger. The law presumes that he did not knowingly place himself in danger, and the burden of showing that he had knowingly placed himself in danger rests upon defendant. Karte v. Mfg. Co., supra; Koontz v. Wabash Ry. Co., supra.
Plaintiff recovered judgment in the trial court for personal injuries and damage to a motor truck in which he was riding. A collision between the motor truck and one of defendant's trains occurred at a street crossing in Poplar Bluff. The motor truck was traveling east on Vine street, and the intersection of Vine street and defendant's railroad tracks is at the bottom of a sharp incline or hill, but after crossing the railroad tracks, which run practically north and south, Vine street continues on across a bridge over Black River. In going east down this hill the street is in a cut which the evidence shows obstructs a view of the railroad tracks to the north until a point is reached somewhere between fifteen and twenty-five feet of defendant's west railroad track, there being more than one track at this crossing. The train that struck plaintiff's truck was coming from the north, which, under all of the evidence, could not have been seen by the plaintiff or the driver of his motor truck until the truck had reached a point twenty-five feet from the tracks, and then at that point a view of the tracks to the north was something like ninety to one hundred feet, the hill on the north side of Vine street obstructing the view.
The petition contains a number of charges of negligence but was submitted in instructions on but three. The answer was a general denial and an affirmative plea of contributory negligence.
The assignments of error can be covered by a discussion of the right of plaintiff to recover at all, appellant contending that under the evidence he was guilty of contributory negligence in law; and second, that he could not recover under the humanitarian rule.
Plaintiff's first instruction required the jury to find that the signals of warning were not given by defendant, or that the train was operated at a speed in excess of that provided for in city ordinances. The second instruction submitted the question on the humanitarian doctrine.
In order to dispose of the question of plaintiff's contributory negligence, as a matter of law, it will be necessary to state the facts of the case, and in doing this it is our duty to state only the facts which are most favorable to plaintiff's right to recover. No contention is made that there is not substantial evidence to the effect that defendant was guilty of failing to give warning signals as this train approached the crossing at Vine street, or that it was running at a speed in excess of that fixed by a city ordinance. The evidence shows that plaintiff, who did not live in Poplar Bluff but lived in Butler County, was familiar with this crossing, had purchased a second-hand motor truck and had procured a young man by the name of Robertson to drive it out of town for him. The truck was a second-hand Ford truck, and the driver, Robertson, was sitting on the left hand front seat operating the truck. The plaintiff was seated on the right, and standing in the rear was a young man who was going along with them. The evidence for plaintiff tends to show that as this truck started down the hill east on Vine street, at the bottom of which hill are defendant's tracks, they were running from six to eight miles an hour; that they listened and heard no signals given by an approaching train, and that they were on the lookout for trains...
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