Willig v. C., B. & Q. Railroad Co.

• Decision Date: 21 February 1940
• Docket Number: No. 36428.,36428.
• Citation: 137 S.W.2d 430
• Court: Missouri Supreme Court
• Parties: EDNA WILLIG v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, and E.W. FRITTS, Appellants.

137 S.W.2d 430

EDNA WILLIG v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, and E.W. FRITTS, Appellants.

No. 36428.

Supreme Court of Missouri.

Division Two, February 21, 1940.

Appeal from Audrain Circuit Court. — Hon. W.C. Hughes, Judge.

AFFIRMED.

W. Wallace Fry, Frank B. Edwards and J.A. Lydick for appellants.

(1) Plaintiff's own evidence showed that Clay Willig neither looked nor listened for an approaching train before going upon defendant's tracks. It was his duty to both look and listen before attempting to cross or walk upon said tracks, and his failure to do so was contributory negligence as a matter of law. Defendants' demurrer at the close of all the evidence should have been sustained. Dyrcz v. Mo. Pac. Ry. Co., 238 Mo. 33, 141 S.W. 861; Giardina v. Railroad Co., 185 Mo. 330; Farris v. Railroad Co., 167 Mo. App. 392; Boyd v. Wabash, 105 Mo. 371; Holand v. Mo. Pac. Ry. Co., 210 Mo. 338, 109 S.W. 19; Harlan v. St. Louis, etc. Ry. Co., 64 Mo. 480; Carton v. St. L.-S.F. Ry. Co., 102 S.W. (2d) 608; Keele v. Railroad Co., 258 Mo. 62, 167 S.W. 433; Burge v. Railroad Co., 224 Mo. 76, 148 S.W. 925; Rollinson v. Railroad Co., 238 Mo. 47, 141 S.W. 861; Vandeventer v. Railroad Co., 177 S.W. 838; Sullivan v. A., T. & S.F. Ry. Co., 297 S.W. 945, 317 Mo. 996; Knight v. Wabash Ry. Co., 85 S.W. (2d) 392; Green v. Mo. Pac. Ry. Co., 192 Mo. 131, 90 S.W. 805; Early v. Wabash Ry. Co., 55 S.W. (2d) 716; Jackson v. Southwest Mo. Ry. Co., 189 S.W. 381. (2) The evidence tends to show that the noise made by the machinery around the overpass interfered with Clay Willig's sense of hearing and that his sight was obstructed until he reached a point about six feet from the nearest rail of defendant's tracks. It therefore became his duty to exercise a greater degree of care in ascertaining whether or not a train was approaching than if his sight and hearing had not been obstructed. Early v. Wabash Ry. Co., 55 S.W. (2d) 716; Kalbfell v. Wells, 49 S.W. (2d) 247; State ex rel. Hines v. Bland, 237 S.W. 1018; Purdom v. Mo. Pac. Ry. Co., 275 S.W. 355; Hayden v. Ry. Co., 124 Mo. 566, 28 S.W. 74; Tannehill v. Railroad Co., 279 Mo. 158, 213 S.W. 818; Henderson v. Railroad Co., 314 Mo. 414, 284 S.W. 788; Underwood v. Railroad Co., 182 Mo. App. 252, 168 S.W. 803; Holtkamp v. Railroad Co., 208 Mo. App. 316, 234 S.W. 1054; Schmidt v. Railroad Co., 191 Mo. 215, 90 S.W. 136; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 362; State ex rel. K.C. So. Ry. Co. v. Shain, 105 S.W. (2d) 915. (3) Although plaintiff's evidence tended to show that Clay Willig was told by his superintendent that two special trains would come about noon, such a fact, if true, would not relieve him from the duty of looking and listening for trains when he went upon defendant's tracks. Tanner v. Mo. Pac. Ry. Co., 161 Mo. 497, 61 S.W. 826; Giardina v. Railroad Co., 185 Mo. 330; Farris v. Railroad Co., 167 Mo. App. 392; Boyd v. Wabash, 105 Mo. 371; Moeller v. Mo. Pac. Ry. Co., 272 S.W. 990; Swigart v. Lusk, 192 S.W. 138; Baker v. K.C., Ft. S. & M. Ry. Co., 122 Mo. 533; Holland v. Railroad Co., 210 Mo. 338; Wren v. C., B. & Q. Ry. Co., 44 S.W. (2d) 241; Christopher v. C., B. & Q. Ry. Co., 55 S.W. (2d) 449; Wolf v. Wabash Ry. Co., 251 S.W. 441; VanDunk v. C. & N.W. Ry. Co., 188 Wis. 476, 206 N.W. 852; Guhl v. Whitcomb, 109 Wis. 69, 85 N.W. 142; Larrabee v. Western Pac. Ry. Co., 173 Cal. App. 743, 161 Pac. 750; Chicago, Indiana & Louisville Ry. Co. v. Ellis 83 Ind. App. 701, 149 N.E. 909; Hines v. Cooper, 205 Ala. 70, 88 So. 133; Carlson v. C. & N.W., 96 Minn. 504, 105 N.W. 555, 4 L.R.A. (N.S.) 349; Judson v. Great Northern Ry. Co., 63 Minn. 248, 65 N.W. 447; Bush v. Union Pac. Ry. Co., 64 Pac. 624, 62 Kan. 709. (4) Plaintiff's given Instruction 5 instructed the jury that if they found Willig did not look out for a train, they could still find that he used ordinary care for his own safety and was not contributorily negligent. Such is not the law and this instruction is clearly erroneous. Moeller v. Mo. Pac. Ry. Co., 272 S.W. 990; Swigart v. Lusk, 192 S.W. 138; Tanner v. Mo. Pac. Ry. Co., 161 Mo. 497, 61 S.W. 826; Giardina v. Railroad Co., 185 Mo. 330; Farris v. Railroad Co., 167 Mo. App. 392; Boyd v. Wabash, 105 Mo. 371; Wren v. C., B. & Q. Ry. Co., 44 S.W. (2d) 241; Schaub v. Railroad Co., 133 Mo. App. 444.

Hollingsworth & Francis for respondent.

(1) Defendants' first three assignments of error, to the effect that the trial court erred in (a) refusing to make the Atkinson Paving Company and its workmen's compensation insurer parties to this suit, and (b) in overruling defendants' motion to discharge the jury panel, not having been referred to in the motion for new trial, are not before this court for review. Sec. 1061, R.S. 1929; Krahenmann v. Schultz, 109 S.W. (2d) 889; Hogan v. S.S. Kresge Co., 93 S.W. (2d) 118; Hogan v. K.C. Pub. Serv. Co., 62 S.W. (2d) 856; Brainard v. Ry. Co., 5 S.W. (2d) 15; Emory v. Emory, 53 S.W. (2d) 908; Brackett v. Contracting Co., 32 S.W. (2d) 288. (2) The evidence in this case clearly made out a submissible case of primary negligence against both defendants. Hubbard v. Wabash Ry. Co., 193 S.W. 579; Savage v. C., R.I. & P. Ry. Co., 40 S.W. (2d) 628; Kidd v. C., R.I. & P. Ry. Co., 274 S.W. 1079. (3) Under the evidence in this case, deceased was not guilty of contributory negligence as a matter of law. Lincoln v. San Francisco Ry. Co., 7 S.W. (2d) 460; Essenpries v. Elliott Dept. Store Co., 37 S.W. (2d) 458; 45 C.J., p. 956, sec. 513; Nave v. Flack, 90 Ind. 205; Power v. Beattie, 194 Mass. 170, 80 N.E. 606; Milsap v. Biggs, 122 Mo. App. 1; English v. Sahlender, 47 S.W. (2d) 154; Sisk v. C., B. & Q. Ry. Co., 67 S.W. (2d) 836; McQuitty v. Ry. Co., 194 S.W. 888.

COOLEY, C.

The appeal in this case was originally taken to the St. Louis Court of Appeals where it was heard twice. On the first hearing the judgment of the circuit court was affirmed in a unanimous opinion by the Court of Appeals. A rehearing was granted and the judgment was again affirmed, the opinion being written by BENNICK, Commissioner, and adopted by the court, but by a divided vote, BECKER, and McCULLEN, JJ., concurring and HOSTETTER, J., dissenting on the ground that he deemed the decision contrary to the decision of this court in Tanner v. Mo. Pac. Ry. Co., 161 Mo. 497, 61 S.W. 826, and requesting that the cause be certified to this court. Pursuant to constitutional mandate it was so certified here.

After careful examination of the record and consideration of the case we have concluded that said opinion of the learned commissioner of the Court of Appeals, approved and adopted by majority vote of that court, correctly disposes of the questions presented on the appeal and we adopt it as our opinion. It is as follows:

"This is an action by plaintiff, the widow, in which she seeks to recover damages for the alleged wrongful death of her husband, Clay Willig, who was struck and killed by a passenger train of defendant Chicago, Burlington & Quincy Railroad Company. One Fritts, the engineer in charge of the train, was joined with the railroad company as a defendant to the action. Tried to a jury in the Circuit Court of Audrain County, a verdict was returned in favor of plaintiff, and against both defendants, in the sum of $6,000. Judgment was rendered accordingly, and defendants' joint appeal to this court has followed in the usual course.

"The accident occurred at a point about four miles east of the city of Mexico, Missouri, where U.S. Highway No. 54 crosses over the track of defendant railroad company.

"The highway runs east and west, and had originally crossed the track, which runs from southeast to northwest, at the railroad grade level.

"In January, 1936, the Missouri State Highway Commission entered into a contract with the railroad company for the construction of an overpass or overhead crossing at the point where the highway crossed the track, and by the terms of the contract was granted permission to enter, or for its contractor to enter, upon the railroad company's premises and right of way for the purpose of completing the grade separation.

"Pursuant to this contract with the railroad company, the highway commission thereafter let the contract for the work to the C.H. Atkinson Paving Company, and work was begun on the job in May, 1936.

"Among the twenty or more men who were constantly employed on the project was the deceased, Clay Willig, who was hired by the Atkinson company as a laborer in August, 1936, and thereafter continued on the job until the following October 15th, when he was struck and killed by defendant railroad company's train.

"The overpass was to be constructed with a framework of steel beams or trusses supported upon concrete piers set in the slab of the original highway at intervals on either side of the track, and with earth filled in at either end of the main span of the overpass so as to permit the gradual elevation of the highway to its new level at the point of the crossing. During the progress of the work there was piling and falsework built in between the piers from the ground up to the floor of the overpass, and extending out, at least on the east side of the track, to a point within five and one-half feet of the nearest rail. This, together with the earthern fill at the end of the span, prevented one walking along the north side of the overpass from seeing the approach of a train from the east until he was within five and one-half feet of the track, although when that point was reached there was an unobstructed view down the track in either direction for a distance of a half mile or more.

"It was shown that during the entire period of the construction of the overpass no trains were regularly scheduled to run past the point during the forenoon, and, in fact, that the only train regularly scheduled to pass the point at any time during the daytime was a local freight which ran from Old Monroe to Francis in the early afternoon, and...