Willhauck v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 12 June 1933
• Docket Number: 31181
• Citation: 61 S.W.2d 336,332 Mo. 1165
• Parties: Joe Willhauck, Appellant, v. Chicago, Rock Island & Pacific Railway Company, a Corporation, and William Moore
• Court: Missouri Supreme Court

61 S.W.2d 336

332 Mo. 1165

Joe Willhauck, Appellant, v. Chicago, Rock Island & Pacific Railway Company, a Corporation, and William Moore

No. 31181

Supreme Court of Missouri

June 12, 1933

Appeal from Circuit Court of City of St. Louis; Hon. John T Fitzsimmons, Judge.

Reversed and remanded.

Everett Hullverson and Staunton E. Boudreau for appellant.

(1) The trial court erred in refusing to read and give to the jury plaintiff's Instruction P-3. This instruction submitted the case to the jury under the assignment of negligence, in plaintiff's petition, pleading failure of defendants to sound a whistle or ring a bell, as required by Section 4756, Revised Statutes 1929. A submissible case was made for plaintiff under this assignment of negligence and it was error requiring reversal on this appeal to have refused to give the instruction. Toeneboehn v. Railway, 98 S.W 795, 317 Mo. 1096; Green v. Railway, 90 S.W. 805 192 Mo. 131; Taylor v. Railway, 83 Mo. 386; Persinger v. Railway, 82 Mo. 196; Huckshold v. Railway, 2 S.W. 794, 90 Mo. 548; Gann v. Railway, 6 S.W.2d 39, 319 Mo. 214; Pryor v. Payne, 263 S.W. 982, 304 Mo. 560; Robertson v. Railway, 264 S.W. 443; State ex rel. v. Reynolds, 226 S.W. 564, 286 Mo. 213. (2) The trial court erred in giving and reading to the jury over the objection and exception of the plaintiff, defendant's offered Instruction D-2. This instruction advises and instructs the jury that defendants had a right to assume, under the circumstances set out, that plaintiff himself did through his own negligence go upon defendant's railroad tracks, and that defendants, therefore, owed no duty to plaintiff under the humanitarian rule as submitted to the jury under plaintiff's Instruction P-1, and it submits to the jury for its consideration and as a defense to plaintiff's case submitted solely on an instruction under the humanitarian doctrine the issue of contributory negligence on the part of plaintiff. Martin v. Fehse, 55 S.W.2d 440; Silliman v. Munger Laundry Co., 44 S.W.2d 159; Hornbuckle v. McCarthy, 243 S.W. 327; Ruth v. Tober, 8 S.W.2d 612. (3) The trial court erred in giving and reading to the jury, over the objection and exception of plaintiff, defendant's offered Instruction D-3. This instruction advised and instructed the jury that if they should find that plaintiff himself was negligent in driving upon defendant's tracks as premised in the instruction, and that such negligence of plaintiff directly caused or contributed to cause the accident, then plaintiff would not be entitled to recover unless defendant could, by the exercise of ordinary care, have avoided the accident, if they saw, or by the exercise of ordinary care could have seen, plaintiff in a position of imminent peril when actually on the tracks. Martin v. Fehse, 55 S.W.2d 440; Silliman v. Munger Laundry Co., 44 S.W.2d 159; Hornbuckle v. McCarthy, 243 S.W. 327; Ruth v. Tober, 8 S.W.2d 612. Taking both Instructions D-2 and D-3 together, they advise the jury that plaintiff's negligence, if any, in driving upon the tracks, without seeing defendant's approaching train, was a bar to plaintiff's recovery under the humanitarian doctrine, if, when plaintiff was twenty-five or thirty feet away from the track, he was driving very slowly and appeared to brakeman Duncan to be stopping, even though thereafter plaintiff picked up speed sufficient to get on defendant's tracks ahead of defendant's train; and advised the jury that defendants owed no duty to observe plaintiff after he appeared to brakeman Duncan to be stopping when twenty-five or thirty feet away from the crossing up to the time when he actually went upon defendant's tracks, and that it was defendant's duty under the humanitarian doctrine to exercise the highest degree of care to avoid injuring plaintiff only after plaintiff actually got upon defendant's tracks. The rule is that defendants, having actually seen plaintiff approaching the tracks, it was their duty to exercise the highest degree of care to observe him in his approach toward the tracks and to exercise the highest degree of care to avoid injuring him upon the first appearance of danger that he would drive upon the tracks in the path of the locomotive. Martin v. Fehse, 55 S.W.2d 440; Silliman v. Munger Laundry Co., 44 S.W.2d 159.

Jones, Hocker, Sullivan & Gladney, William O. Reeder and Ralph T. Finley for respondents; Luther Burns of counsel.

(1) The plaintiff was not entitled to recover on any assignment of negligence based on the failure to give signals or warning, because under all the evidence the plaintiff was guilty of contributory negligence as a matter of law. Johnson v. Railway Co., 77 Mo. 552; Jackson v. Railroad, 189 S.W. 384; Burge v. Railroad, 244 Mo. 95; Evans v. Railroad, 289 Mo. 501; Kelsay v. Ry. Co., 129 Mo. 376; State ex rel. Maclay v. Cox, 320 Mo. 1218, 10 S.W.2d 940. (2) The plaintiff made no submissible case under the humanitarian rule. Clark v. Ry. Co., 319 Mo. 865, 6 S.W.2d 954; Tannehill v. Railroad, 279 Mo. 173; Beal v. Frisco, 256 S.W. 736; Burge v. Railroad, 244 Mo. 102. (3) Plaintiff's Instruction P-3 was properly refused, because it quoted verbatim the statute as to the giving of signals, and authorized the jury to construe such statute, thereby submitting a question of law. Henry v. Railroad Co., 282 S.W. 425; Davis v. Western Union, 236 S.W. 407; Kuhlmann v. Water, Light & Transit Co., 307 Mo. 643; Lewis v. Railroad Co., 50 S.W.2d 125. Said instruction was also properly refused because it erroneously authorized the jury to find the defendants negligent if warning was not given by both whistle and bell. The statute is in the alternative, and requires only the giving of one warning or the other. Maginnis v. Railroad, 182 Mo.App. 694; Terry v. Railway Co., 89 Mo. 586; Kenney v. Railway Co., 105 Mo. 270; Toeneboehn v. Railway Co., 317 Mo. 1116. There was no error in the giving of defendants' Instruction D-3 on contributory negligence, because the plaintiff did not waive all assignments of negligence, except the assignment under the last-chance doctrine. The rule that contributory negligence passes out of the case applies only where the plaintiff elects to submit his case under the humanitarian doctrine, alone. Silliman v. Munger Laundry Co., 44 S.W.2d 163. (4) The judgment below is for the right party and should be affirmed. Secs. 821, 1062, R. S. 1929; Peterson v. Transit Co., 199 Mo. 321.

OPINION

Atwood, J.

Plaintiff has appealed from a verdict and judgment for defendants. The errors assigned relate only to the refusal of one instruction requested by plaintiff and the giving of two instructions requested by defendants.

The action was for damages laid at $ 35,000 on account of personal injuries alleged to have been sustained by plaintiff when one of defendant railway's locomotives, then being operated by defendant Moore as engineer, collided with plaintiff's automobile while the same was being driven by him over a public crossing. The petition contained several specifications of negligence but plaintiff sought instructions only on defendants' alleged failure to give statutory warning and their alleged negligence under the humanitarian rule. Defendants' answer consisted of a general denial and plea of contributory negligence. Counsel for respondents not only say that there was no reversible error in said refusal and giving of instructions but they also insist that the peremptory instructions requested by defendants at the close of all the evidence should have been given. We shall rule the latter contention first.

The collision occurred about three-thirty or four o'clock in an afternoon in the month of May at an intersection of defendant railway's east and west main track with a north and south dirt highway known as Dorset Road in St. Louis County, Missouri. It had rained that day and the night before and the road and crossing were very muddy and slick. Plaintiff was driving an old Model-T one ton Ford truck which had been exposed to the rain until the coils had become wet and for several hours the engine had been missing and performing badly, and plaintiff said "when I would shove in on my clutch too much I would kill the motor." Plaintiff testified that he drove from a side road into Dorset Road about sixty or seventy-five feet south of this railroad crossing and approached the crossing at about three miles an hour "just barely moving," stopped about five feet south of the crossing, looked each way and not seeing or hearing any approaching train he then pushed his foot in on his clutch and worked his gas "just trying to crawl along, just hitting and missing." His own recital of what then transpired is as follows:

"I reached to choke it and I got my wheels up about midway over the tracks and had hold of the choke, like this (indicating reaching over), and I was looking at my choke and pushed in on my clutch and reached down -- it seems a piece of wire that runs down to the dashboard was hanging -- and reached to get that and heard a whistle and looked to my left, then to my right and saw this approaching train. I would judge it was about 150 feet, maybe 200 feet, from me. Before that I had not heard any whistle or bell or anything else. I did not hear any bell then; never heard any bell; heard nothing but that whistle. In that situation I shoved in on my clutch, shoved it clear in and jerked my foot off and repulled down on the gas and the car looked like it rolled right on over so that all but the hind end of it was entirely clear from danger from collision with the train. From the time I heard the whistle I had traveled probably five or six feet. It was just the back end of the body of my truck which was struck. I did not hear the sound of any brakes or anything of that sort. From the time I...