Wholf v. Kansas City, C. C. & St. J. Ry. Co.

• Decision Date: 19 June 1934
• Docket Number: 29357
• Parties: Dave Wholf v. Kansas City, Clay County & St. Joseph Railway Company, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 195

335 Mo. 520

Dave Wholf v. Kansas City, Clay County & St. Joseph Railway Company, Appellant

No. 29357

Supreme Court of Missouri

June 19, 1934

Appel from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed and remanded (with directions).

Cooper Neel, Kemp & Sutherland and Frank J. Rogers for appellant.

(1) Defendant's Instruction 6 correctly declared the law in this case. (a) Plaintiff did not submit his case solely under the humanitarian doctrine. State ex rel. Fleming v Bland, 15 S.W.2d 800; Sec. 9943, R. S. 1919; Gubernick v. United Rys. Co., 217 S.W. 35; Heigold v. United Rys. Co., 271 S.W. 775, 308 Mo. 149; Deschner v. Railroad, 200 Mo. 329, 98 S.W. 742; Beal v. St. L.-S. F. Ry. Co., 256 S.W. 735. (b) In a negligence case not submitted solely under the humanitarian doctrine, it is proper for defendant to submit plaintiff's contributory negligence as a defense to defendant's alleged primary negligence. Torrance v. Pryor, 210 S.W. 433; Rawie v. Railroad Co., 274 S.W. 1038, 310 Mo. 97; White v. Railroad, 250 Mo. 487, 157 S.W. 596; Gary v. Averill, 12 S.W.2d 751. (2) The verdict of the jury was for the right party and the court erred in granting a new trial. (a) A verdict for the right party should not be disturbed. Fritz v. Railroad, 243 Mo. 68, 148 S.W. 75; Barkley v. Cemetery Assn., 153 Mo. 317, 54 S.W. 486; King v. King, 155 Mo. 425, 56 S.W. 539; Jones v. Ry. Co., 178 Mo. 554, 77 S.W. 898; Mockowik v. Railroad Co., 196 Mo. 568, 94 S.W. 261; Farmers Loan & Trust Co. v. So. Surety Co., 285 Mo. 652, 226 S.W. 935. (b) It is error to submit negligence that is not within the pleadings and the proof. Kaite v. Brockman Mfg. Co., 247 S.W. 422; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 653, 195 S.W. 724; Degonia v. Railroad Co., 224 Mo. 589, 123 S.W. 817. (c) Plaintiff's petition does not state a cause of action under the humanitarian doctrine. Banks v. Morris & Co., 257 S.W. 484, 302 Mo. 267; Gubernick v. Rys. Co., 217 S.W. 34.

Robert M. Murray for respondent.

(1) Defendant's Instruction 6 palpably erroneous, and the court nisi properly awarded a new trial for the giving thereof. Schultz v. Smercina, 1 S.W.2d 115; Causey v. Wittig, 11 S.W.2d 14; Burke v. Pappas, 293 S.W. 145; Shumate v. Wells, 9 S.W.2d 634; Jageles v. Berberich, 20 S.W.2d 579; Spindler v. Wells, 276 S.W. 387; Bussey v. Don, 259 S.W. 791; Althoge v. Peoples Motorbus Co., 8 S.W.2d 926; Yakobaski v. Wells, 253 S.W. 72; Trussell v. Waight, 285 S.W. 118; Knickerbocker v. Athletic Tea Co., 285 S.W. 797; Nipper v. Met. St. Ry. Co., 145 Mo.App. 231; Jackson v. K. C. Rys. Co., 232 S.W. 753. (2) The case made was submissible to the jury. (a) The evidence was amply sufficient under the humanitarian doctrine. Boland v. Railroad Co., 284 S.W. 145; Maginnis v. Railroad Co., 187 S.W. 1156; Conley v. Railroad Co., 253 S.W. 426; Anderson v. Director General, 284 S.W. 439; Tavis v. Bush, 217 S.W. 274; Johnson v. Railroad Co., 268 S.W. 902; Salisbury v. Railroad Co., 268 S.W. 896; Waddell v. Railroad Co., 213 Mo. 12; Zumwalt v. Railroad Co., 266 S.W. 724; Dutton v. Railroad Co., 292 S.W. 718; Treadway v. Rys. Co., 282 S.W. 441; Messer v. Railroad Co., 274 S.W. 867; Moore v. Railroad Co., 283 S.W. 734; Dutcher v. Railroad Co., 241 Mo. 137; Logan v. Railroad Co., 254 S.W. 705. (b) Defendant, by waiver, is precluded, on appeal, from challenging the sufficiency of the evidence. Moore v. James Black Masonry & Const. Co., 27 S.W.2d 766; State ex rel. Ry. v. Allen, 308 Mo. 487; Herod v. Railroad Co., 299 S.W. 78; Seewald v. Gentry, 286 S.W. 453; Torrance v. Pryor, 210 S.W. 430. (3) The court erred in giving defendant's Instruction 11. Seithel v. St. Louis Dairy Co., 300 S.W. 282; Moran Railroad Co., 255 S.W. 335; Wilsch v. Glieforst, 259 S.W. 852; Boroski v. Loose-Wiles Biscuit Co., 229 S.W. 428.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This case comes to the writer upon a reassignment of pending appeals. The question for decision is whether the trial court erred in sustaining plaintiff's (respondent's) motion for a new trial. The action was for damages for personal injuries and property damage suffered at a road crossing in a collision of appellant's electric motor car with respondent's truck. The accident happened near Excelsior Springs in Clay County, Missouri. The action was prosecuted in the Circuit Court of Jackson County at Kansas City. Upon trial there was verdict and judgment for the defendant. The amount for which respondent sues fixes our jurisdiction.

Briefly stated the facts are these: At the point of the collision appellant's single-track railway runs east and west. The crossing road runs north and south. Close by the south line of appellant's right of way and about four hundred feet west of the crossing are the surface works of a coal mine. The road is a private one. It leads from the mine parallel to the right of way eastwardly about four hundred feet where it turns north, crosses the track, and goes on to a public highway a quarter of a mile distant. The road is twenty-five or thirty feet lower than appellant's track at the mine shaft. But it rises gradually until, at a gate in the right-of-way fence, twenty-nine feet from the track, the road is seven feet below the track. At that point the road completed its left turn and pointed north toward the nearby east and westbound track. In less than the distance of twenty-nine feet from the right-of-way fence to the track the road rose seven feet to the level of the track and had a brief horizontal space short of the actual crossing. West from the crossing, appellant's track has a straight-away stretch of twelve hundred feet. This length of straight track has a rather sharp down grade from west to east, that is toward the road crossing. Down this stretch of twelve hundred feet, one of appellant's electric motor cars, eastbound to Excelsior Springs and going at forty or fifty miles an hour, came on to a collision with respondent's truck about the noon hour on November 5, 1925. It was a clear day, but thawing, and the private dirt road was slick and poor for traction on the rise from the mine land to the railroad crossing. Respondent Wholf had loaded his truck with coal, and had headed up the road toward the track. At the right-of-way gate, the rear wheels spun on the incline but the truck stood still. For ten minutes respondent vainly tried to make his truck climb the grade. Then Claude Clevenger, driving his truck toward the mine for a load of coal, took Wholf's truck in tow. This Clevenger did by turning his truck about, backing it toward Wholf's stalled truck, and passing a chain from the rear of his truck to the front part of Wholf's. The chain was about six feet long. Clevenger drove forward, and Wholf's truck followed, Wholf himself sitting in his cab and steering. Clevenger's truck crossed the track in safety, but Wholf's truck was hit by the on-coming electric motor car. The truck was destroyed and respondent himself was gravely injured.

The trial court stated as a reason for sustaining respondent's (plaintiff's) motion for a new trial that it erred in giving appellant's (defendant's) Instruction No. 6. While the court did not point out the particular vice which it saw in the instruction, both appellant and respondent treat the instruction as involving, in the view of the trial court, the error of the inclusion of the element of contributory negligence in a defendant's instruction in a case submitted to the jury by the plaintiff upon the humanitarian doctrine alone. This seems to us to be the only question that the instruction can raise. Appellant denies that respondent submitted the case to the jury on the humanitarian doctrine alone. It also denies that respondent pleaded the humanitarian doctrine in his amended petition or included its essential elements in his main instruction, or gave evidence tending to prove the doctrine as pleaded or defined by law. And finally, defendant contends, that Instruction No. 6 is a correct statement of the applicable law. It is necessary for the determination of this appeal that we first decide whether respondent's main Instruction No. 1 submitted the case to the jury upon the humanitarian doctrine alone. Therefore we set out that instruction which is as follows:

"The court instructs the jury that if you find and believe from the evidence that on the 5th day of November, 1925, plaintiff was driving an automobile truck in a northeasterly direction on a road leading from the mine mentioned in evidence toward and across a railroad track that crosses said road at approximately right angles, if such be the fact; and if you further find that on said day and for a long time prior thereto, said crossing and road were used at all hours of the day by a number of automobile truck owners and their employees in going to and returning from said mine, and that defendant and its servants knew, or could have known by the exercise of ordinary care that said crossing was so used (if you find it was so used); and if you further find that at and for a long time prior to said 5th day of November, 1925, the defendant maintained a whistling post some distance west of said crossing and that defendant's servants in operating cars on said track customarily blew the whistle on said cars at said whistling post for said crossing (if you so find); and if you further find that defendant then and there operated an electric car eastwardly on said railroad track toward said crossing and that plaintiff and the automobile in which he was riding was then and there in danger of being struck and injured by said car (if you so find), and that plaintiff, while approaching said track, was oblivious to the approach of said car, if such be the fact,...