Whittle v. Thompson

• Decision Date: 06 March 1944
• Docket Number: 38625
• Parties: H. C. Whittle, Appellant, v. Guy A. Thompson, Trustee, etc
• Court: Missouri Supreme Court

179 S.W.2d 22

352 Mo. 637

H. C. Whittle, Appellant, v. Guy A. Thompson, Trustee, etc

No. 38625

Supreme Court of Missouri

March 6, 1944

Rehearing Denied April 3, 1944.

Appeal from Jackson Circuit Court; Hon. Charles L. Carr Special Judge.

Affirmed.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for appellant.

(1) The court erred in giving defendant's Instruction C in that Instruction C constituted an unwarranted comment on the weight of the evidence as to plaintiff's injuries and eliminated or unduly minimized the effect of such evidence insofar as it tended to prove defendant's negligence. Fowlkes v. Stephens, 342 Mo. 247, 114 S.W.2d 997; Hartman v. Hartman, 314 Mo. 305, 284 S.W. 488; Gardner v. St. Louis Union Trust Co., 85 S.W. 86; Littig v. Urbauer-Atwood Heating Co., 292 Mo. 226 237 S.W. 779; Bohn v. City of Maplewood, 124 S.W.2d 649; Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43; Reed v. Coleman, 167 S.W.2d 125; Orris v. Chicago, R.I. & P. Ry. Co., 279 Mo. 1, 214 S.W. 124; Unterlachner v. Wells, 278 S.W. 78. (2) The court committed prejudicial and reversible error in giving defendant's Instruction F. The issue of contributory negligence submitted by defendant's Instruction F is without any substantial support in the evidence and therefore prejudicially and reversibly erroneous. Cento v. Security Bldg. Co., 99 S.W.2d 1; State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W.2d l.c. 838; Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1. (3) Defendant's Instruction F failed to submit facts constituting a contributory negligence situation and was therefore too general. Pearrow v. Thompson, 343 Mo. 490, 121 S.W.2d 811; Alexander v. Hoenshell, 66 S.W.2d 164; Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54. (4) Defendant's Instruction F erroneously failed to require a finding that plaintiff, by the exercise of ordinary care, should have known it was dangerous to walk along the path beside the railroad track. Crawford v. Kansas City Stock Yards Co., 215 Mo. 394, 114 S.W. 1057; Gleason v. Texas County, 46 S.W.2d 546. (5) Defendant's Instruction F constitutes an unwarranted comment on the evidence and an argument in favor of the defendant. Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 746; Holloway, Cotton & Grain Co. v. Missouri Pac. Co., 77 S.W.2d 189; Dohring v. Kansas City, 81 S.W.2d 943; Lammert v. Wells, 320 Mo. 952, 13 S.W.2d 547. (6) Defendant's Instruction F gives undue prominence to plaintiff's failure to step over under the ice rack and invades the province of the jury. Colwell v. St. Louis-S.F. Ry. Co., 335 Mo. 494, 73 S.W.2d 222; Lithegner v. St. Louis, 125 S.W.2d 925; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33. (7) Because of its peculiar phraseology defendant's Instruction F seems to assume and argue that plaintiff was not exercising ordinary care, otherwise he would have moved further from the track. Clark v. Atchison & Eastern Bridge Co., 24 S.W.2d 143.

Leslie A. Welch, Richard H. Beeson and David P. Dabbs for respondent.

(1) Error in instruction, if any, is harmless if a demurrer to the evidence should have been sustained. Carr v. Mo. Pac., 195 Mo. 214, 92 S.W. 874; Shelton v. Wolf Cheese Co., 93 S.W.2d 947; Chappee v. Lubrite Refg. Co., 85 S.W.2d 1034. (2) Defendant's demurrer at the close of all the evidence should have been sustained because the plaintiff was on the defendant's property for his own personal convenience and not for any benefit to the defendant and therefore the defendant owed plaintiff no duty except to refrain from wantonly injuring him or from negligently injuring him after he got in a position of peril. Carr v. Mo. Pac., 195 Mo. 214, 92 S.W. 874; Stevenson v. K.C.S. Ry. Co., 159 S.W.2d 261; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679; Angelo v. Baldwin, 121 S.W.2d 731; Evans v. Sears, Roebuck & Co., 129 S.W.2d 53; Connole v. Floyd Plant Food Co., 96 S.W.2d 655; Evans v. Mo. Pac., 116 S.W.2d 8, and Turner v. M.-K.-T., 142 S.W.2d 455, distinguished. (3) Defendant's demurrer at the close of all the evidence should have been sustained because the doctrine of res ipsa loquitur is not applicable and plaintiff adduced no evidence defendant was negligent. 45 C.J. 1209. Defendant's Instruction F was not erroneous. (4) A party may single out any fact or facts and direct a verdict upon a finding of such fact or facts. Gardner v. Metropolitan St. Ry. Co., 152 S.W. 98, 167 Mo.App. 605; Nyberg v. Wells, 14 S.W.2d 529; Fisher v. Kansas City Pub. Serv. Co., 19 S.W.2d 500; Berthold v. Danz, 27 S.W.2d 448; Sisk v. C., B. & Q.R. Co., 67 S.W.2d 830; Schnurr v. Perlmutter, 71 S.W.2d 63; Connole v. East St. L. & S.R. Co., 102 S.W.2d 581, 340 Mo. 690. (5) Instructions need not submit facts which appear from uncontradicted evidence and are in fact conceded. It is not error to assume uncontradicted facts. See innumerable cases in Missouri Digest, Trial Key No. 192; Raymond, Missouri Instructions, p. 67, note 34. (6) A defendant is entitled to have his theory of the case submitted in a direct way. King v. Wabash R. Co., 211 Mo. 1, 109 S.W. 671; Wilson v. Thompson, 133 S.W.2d 331. (7) Defendant's Instruction C was not erroneous. Moss v. Wells, 249 S.W. 411; Manthey v. Kellerman Constr. Co., 277 S.W. 927; Barraclough v. Union Pac. R. Co., 52 S.W.2d 998.

OPINION

Gantt, J.

Action to recover $ 25,000 for personal injuries. The defendant Guy A. Thompson is the trustee in bankruptcy for the Missouri Pacific Railroad Co. At the time of the injury plaintiff was walking near a track on defendant's right-of-way. He claims that he was struck by an unfastened and swinging door of a refrigerator car in a passing train. The petition alleged general negligence. The answer was a general denial with a plea of contributory negligence. The reply was a general denial. Questions under the humanitarian rule are not involved in the case. It is a question of primary negligence under res ipsa loquitur. Judgment was entered on a verdict for the defendant and plaintiff appealed. He assigns error on instructions given at the request of defendant. We first consider the contention that the court, at the close of the evidence, should have directed a verdict for the defendant. The company argues that its only duty was not to wantonly and wilfully injure the plaintiff. The evidence favoring the plaintiff follows:

In March, 1938, a W.P.A. project was located a mile and a half south of Leeds in Jackson County and near 43d Street and the Blue River. Defendant's tracks extend from Leeds southward toward the project. In going to the project many of the W.P.A. employees rode the bus from Kansas City and other places to Leeds. In great numbers they walked from Leeds toward the project over the company's right-of-way and on a path near the track. At the end of the day's work they walked on said path in returning to Leeds. In using the path, they ignored defendant's signs notifying the public that trespassing on defendant's property "is absolutely forbidden." From the beginning the company knew that the employees of the project were regularly ignoring the notice to trespassers. On the west side of the track in question there is located an icing platform of great length from which ice is loaded into cars. It is nine feet wide, fifteen feet high and supported by wooden columns resting on cement bases. The space underneath the platform is not enclosed. The distance between the east side of the loading dock and the nearest rail is four feet, eleven inches. The over-hang of the cars beyond the rail is eighteen inches. It follows that the space between the west side of a car on the track and the supporting columns on the east side of the loading dock is three feet five inches. The W.P.A. employees could walk under the loading dock. Some of them did so when it was raining. However, the ground under the loading dock was rough and usually small chunks of ice were sparsely scattered over the ground.

Plaintiff's first day as an employee of the project was June 6, 1938. He rode the bus to Leeds and followed other project employees southward on a path between the west rail of the track and the east columns supporting the loading dock to a point near the project. In returning home at the end of the day's work, he followed other employees walking northward on the path to Leeds, and other employees followed plaintiff on the path. As he walked northward he heard a noise, looked back over his right shoulder, and saw a freight train drawn by a locomotive moving northward on the above mentioned track. Thereupon he moved "a little bit further" toward the columns supporting the loading dock. He continued northward, walking close to the columns. The sixth or seventh car from the engine was a refrigerator car which had a four foot opening in the side of the car with two doors two feet in width. The doors opened toward each end of the car. As the refrigerator car approached plaintiff, its rear door was open and against the side of the car. At that time the train, moving twelve or fifteen miles per hour, slackened speed, which caused this door to swing out and forward, striking plaintiff on the back and shoulders. As a result, he fell to the ground. He had no warning of the unfastened and swinging car door. There was evidence for the defendant tending to show that plaintiff "walked into the side of a moving box car", which caused him to fall.

It is the duty of a railroad company to anticipate the presence of invitees on a station platform. It also is the duty of the company to exercise ordinary care to avoid injury to said invitees by inspecting its trains to discover and eliminate objects projecting from a moving train or objects that may be thrown from a moving train. [Turner v. Railroad, 346 Mo. 28, 142 S.W. 2d 455.]

We...