Willsie v. Thompson
| Decision Date | 10 October 1949 |
| Docket Number | 40949 |
| Citation | 223 S.W.2d 458,359 Mo. 775 |
| Parties | Gladys E. Willsie, Respondent, v. Guy A. Thompson, Trustee in Bankruptcy of the Missouri Pacific Railroad, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.
Reversed and remanded.
Plaintiff's husband was killed in a grade crossing collision. There was a submissible case on the issue of the automatic crossing signal failing to operate and defendant having sufficient notice thereof, but plaintiff's instruction was erroneous on the issue of notice in time to repair and because it had the effect of excluding the defense of contributory negligence of the deceased, who was the driver of the automobile.
Richard H. Beeson, David P. Dabbs and Dean F. Arnold for appellant.
(1) The mere negative testimony of witnesses whose attention was centered on a fight or commotion in the street and not on the approaching train, to the effect that they did not hear whistle and bell signals from the train, was insufficient evidence upon which to submit the case to the jury on such issues. Knorp v. Thompson, 212 S.W.2d 584; Ingram v. M. & O.R. Co., 326 Mo. 76, 30 S.W.2d 989; Crossno v. Terminal Railroad Assn. of St. Louis, 328 Mo. 826, 41 S.W.2d 796; Little v. Manufacturers Ry Co., 123 S.W.2d 220; McCreery v. United Ry. Co., 221 Mo. 18, 120 S.W. 24; Cathcart v. H. & St. J. Ry., 19 Mo.App. 113; State v. Smith, 222 S.W. 455; C. & N.W. v. Garwood, 167 F.2d 848. (2) The mere negative testimony of the same witnesses, whose attention was centered on the commotion in the street rather than on the crossing and the approaching train, that they did not hear or see the crossing signal operate, was insufficient evidence upon which to submit the case to the jury on such issue. See authorities, supra, Point (1). (3) There was not sufficient evidence to submit the case to the jury on the issue of primary negligence that the defendant knew or should have known that the electric crossing signal was not operating for a sufficient time to have made repairs before the arrival of the train. Nixon v. H. & St. J.R. Co., 141 Mo. 425, 42 S.W. 942; Liddle v. Thompson, 236 Mo.App. 1071, 162 S.W.2d 614; Williams v. K.C. Term. Ry. Co., 288 Mo. 11, 231 S.W. 954; McKeighan v. Kline's, 339 Mo. 523, 98 S.W.2d 555; Robinson v. Great A. & P. Tea Co., 347 Mo. 421, 147 S.W.2d 648; McGrew v. Thompson, 353 Mo. 856, 184 S.W.2d 994. (4) Deceased in failing to exercise the highest degree of care to look and listen for, and to see and give heed to, the approaching train after passing the obstruction to his view, and in driving at such a fast speed that he could not stop in a place of safety before driving into the danger zone was guilty of contributory negligence as a matter of law. State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W.2d 46; Hayden v. M., K. & T.R. Co., 124 Mo. 566, 28 S.W. 74; Kelsay v. Mo. Pac. R. Co., 129 Mo. 363, 30 S.W. 339; Monroe v. C. & A.R. Co., 297 Mo. 633, 249 S.W. 644; Borrson v. M., K. & T.R. Co., 351 Mo. 229, 172 S.W.2d 835; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185; Aldridge v. Mo. Pac. R. Co., 215 Mo.App. 217, 256 S.W. 93; Evans v. I.C.R. Co., 289 Mo. 493, 233 S.W. 397. (5) Instruction A erroneously failed to require the jury to find that in addition to receiving timely notice that the crossing signal was not operating, the defendant also by the exercise of ordinary care had time thereafter to have repaired or remedied the same before the collision. Nixon v. H. & St. J.R. Co., 141 Mo. 425, 42 S.W. 942; Liddle v. Thompson, 236 Mo.App. 1071, 162 S.W.2d 614; Williams v. K.C. Term. Ry. Co., 288 Mo. 11, 231 S.W. 954; McKeighan v. Kline's, 339 Mo. 523, 98 S.W.2d 555; Robinson v. Great A. & P. Tea Co., 347 Mo. 421, 147 S.W.2d 648. (6) Plaintiff's Instruction A is erroneous in that it excluded from consideration by the jury, as a defense of contributory negligence, the conceded fact that deceased approached the track at a speed greater than he would be able to stop after he had reached a point where he could, by the exercise of the highest degree of care, have seen the approaching train and in that respect said instruction erroneously conflicts with defendant's contributory negligence Instruction 4. Seithel v. St. Louis Dairy Co., 300 S.W. 280; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607, 271 S.W. 788; Landon v. United Rys. Co., 237 S.W. 496. (7) Plaintiff's Instruction A erroneously assumes as a fact that deceased saw the train as soon as it came within his view and in that respect excludes the defense of contributory negligence of failure to exercise the highest degree of care to see the train and conflicts with defendant's contributory negligence Instruction 7. Miller v. Busey, 186 S.W. 983; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 746; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559.
Paul C. Sprinkle, William F. Knowles and Sprinkle & Knowles for respondent.
(1) There was an abundance of positive testimony that neither the whistle nor the bell on the train were sounded. Stotler v. Chicago & Alton Ry. Co., 98 S.W. 509, 200 Mo. 107; Johnson v. Wabash Railroad Co., 168 S.W. 713, 259 Mo. 534; Henry v. Illinois Central Railroad, 3 S.W.2d 1004, 319 Mo. 432; Sing v. St. Louis-S.F. Ry. Co., 30 S.W.2d 37; Borrson v. M.-K.-T.R. Co., 161 S.W.2d 227; Mullis v. Thompson, 213 S.W.2d 941; Knorp v. Thompson, 175 S.W.2d 889, 352 Mo. 44; Ingram v. M. & O. Railroad Co., 30 S.W.2d 989, 326 Mo. 163; Crossno v. Terminal Railroad, 41 S.W.2d 796, 328 Mo. 826; Little v. Manufacturers Ry. Co., 123 S.W.2d 220; McCreery v. United Rys. Co., 120 S.W. 24, 221 Mo. 18; Cathcart v. H. & St. J. Ry. Co., 19 Mo.App. 113; State v. Smith, 222 S.W. 455; Knorp v. Thompson, supra. (2) There was an abundance of testimony that the crossing signal did not operate and had not been operating for sometime before the accident. (3) There was sufficient evidence to submit the negligence of the appellant with respect to the failure of the crossing bell to operate for a sufficient time for the appellant to have notice thereof. Hatten v. Chicago, B. & Q.R. Co., 233 S.W. 281, 246 S.W. 538; Kavanaugh v. Atchison, T. & S.F. Ry. Co., 63 S.W. 374, 163 Mo. 54; Bachman v. Quincy Railroad Co., 274 S.W. 764, 310 Mo. 48; Perkins v. Kansas City So. Ry. Co., 49 S.W.2d 103, 329 Mo. 1190; Murphy v. Duerbeck, 19 S.W.2d 1040; Dehn v. Thompson, 181 S.W.2d 171; Fritz v. Manufacturers Ry. Co., 124 S.W.2d 603. (4) The deceased was not guilty of contributory negligence as a matter of law. Gorman v. St. Louis Merchants Bridge Term. Ry. Co., 28 S.W.2d 1023, 325 Mo. 326; Perkins v. Kansas City So. Ry. Co., 49 S.W.2d 103, 329 Mo. 1190; Sisk v. Chicago, B. & Q. Railroad Co., 67 S.W.2d 830; Holman v. Terminal Association, 125 S.W.2d 527; Doyel v. Thompson, 211 S.W.2d 704. (5) Instruction A was proper because under the facts the defendant did have timely notice of the failure of the crossing bell to operate and furthermore because said instruction required a jury to find more than was necessary in order for the plaintiff to recover. Young v. City of Webb City, 51 S.W. 709, 150 Mo. 333; Hatten v. Chicago, B. & Q.R. Co., supra; Kavanaugh v. Atchison, T. & S.F. Ry. Co., supra; Murphy v. Duerbeck, supra; Maurizi v. Western Coal & Mining Co. 11 S.W.2d 268; Wilday v. M.-K.-T.R. Co., 147 S.W.2d 431, 347 Mo. 275. (6) Instruction A did not conflict with defendant's Instruction 4 with respect to the conduct of the deceased after the train could be sighted. The appellant contends that Instruction A is in conflict with defendant's Instruction 4. Mullis v. Thompson, supra; Rhineberger v. Thompson, 202 S.W.2d 64, 356 Mo. 520. (7) Instruction A did not assume that the deceased saw the train as soon as it came within view. Griffith v. Delico Meat Products Co., 145 S.W.2d 431, 347 Mo. 28.
Plaintiff's husband, Leo J. Willsie, lost his life on Sunday, October 20, 1946, when an eastbound train of defendant company struck a car being driven by Willsie at a crossing in Strasburg, Cass County, Missouri. Plaintiff brought this suit for damages and a trial resulted in a verdict in her favor for $ 8000. The defendant appealed from the judgment entered.
The case was submitted to a jury on the charges of negligence, of failure to sound a warning and of failure of an electric signaling device to function. The questions for decision on this appeal as briefed by appellant are: the sufficiency of the evidence to sustain any of the charges of negligence submitted to the jury; contributory negligence of the deceased; and alleged errors in instruction A.
The deceased and his family lived a short distance from Strasburg. On the day in question the deceased and his wife were in Strasburg and at about 6:00 p.m. Willsie, being alone in his car, drove north on Fifth Street intending to cross the defendant's tracks. A troop train, consisting of an engine, a tender, and nineteen cars, was traveling east toward the crossing at about 65 miles per hour. It struck Willsie's car resulting in his death. The track to the west of this crossing was in a straight line for at least a mile with a slight down grade toward the east. On the west side of Fifth Street adjoining the railroad right of way and about 30 feet south of the main line track was a small coal or wood shed which obstructed a car driver's view of trains coming from the west. The roadway of Fifth Street south of the tracks, was practically level with a slight up grade near the tracks. On the northeast side of the main line track was an electrically operated, illuminated wig-wag and bell crossing alarm signal. It was in evidence that a number of persons were engaged in an argument on Fifth Street about 75 feet south of the railroad crossing. The constable or...
To continue reading
Request your trial