Wolf v. Wabash Railway Company

• Decision Date: 03 April 1923
• Parties: JOHANNA WOLF, Respondent, v. WABASH RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

251 S.W. 441

212 Mo.App. 26

JOHANNA WOLF, Respondent, v. WABASH RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 3, 1923

Appeal from the Circuit Court of the City of St. Louis.--Hon Charles B. Davis, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

N. S Brown and Homer Hall for appellant.

(1) The court erred in overruling defendant railway company's motions to require plaintiff to elect at the beginning of the trial and after the close of all the evidence. Section 1221, Revised Statutes 1919. (2) The admission of the letter press copy book for the purpose of proving service of notice requiring the erection of crossing gates was erroneous. The laws of the State did not require or provide for the keeping of such a book, and there was no evidence that there was any ordinance of the city requiring it to be kept. Connor v Insurance Co., 78 Mo.App. 131; State v Tarwater, 239 S.W. 480; Galli v. Wells, 239 S.W. 894. (3) The city ordinances were improperly admitted in evidence for the reason that control of safety protection at crossings has been taken from the city and has been vested in the Public Service Commission. Sec. 10459, Revised Statutes 1919; In re United Rys. Co., 4 P. S.Ct. 502; City v. Public Service Commission, 276 Mo. 509. (4) The admission of evidence as to the minor child of deceased was reversible error. Williams v. Railway Co., 123 Mo. 573; Mahaney v. Railroad Co., 108 Mo. 191; Dayharsh v. Railroad Co., 103 Mo. 570; Stephens v. Railroad Co., 96 Mo. 207; Hecke v. Dunham, 192 S.W. 120. (5) Instruction 1 is erroneous because it made defendant laible for failure to blow the whistle, whereas the statutes of the State provide that the defendant was not required to blow the whistle, but that it was sufficient compliance with the law if the bell was rung. Daniel v Pryor, 227 S.W. 102, 106; Moyer v. Railroad, 198 S.W. 844; Rollison v. Railroad, 252 Mo. 525, 536; Tate v. Wabash Ry. Co., 153 Mo.App. 533; Terry v. Railway Co., 89 Mo. 586; Van Note v. Railroad Co., 70 Mo. 641. There was no substantial evidence proving that the train was moving at a high and dangerous rate of speed, and the court erred in submitting that question to the jury. The mere guess of a witness has no probative force and the submission of an issue based upon such testimony is error. McCreery v. United Rys. Co., 221 Mo. 18; Lewkowitz v. United Rys. Co., 178 Mo.App. 629; Mahaney v. K. C. Rys. Co., 286 Mo. 601, 228 S.W. 821, Underwood v. St. L. I. M. & S. Ry. Co., 182 Mo.App. 252, 168 S.W. 803; Rollinson v. Railroad, 252 Mo. 525. Instruction 1 is erroneous because there was no evidence that the death of deceased proximately resulted from the running of the engine at a high and dangerous rate of speed, as alleged in the petition and which was submitted as the second act of negligence in this instruction. Brimer v. Davis, Director General, 245 S.W. 404; Battles v. United Rys. Co., 178 Mo.App. 596; Lackey v. United Rys. Co., 231 S.W. 956. Instruction 1 is erroneous because the terms "high and dangerous rate of speed" and "timely warning" as used in it are not defined, and it is left wholly to the conception, conjecture and caprice of the individual juror to find a meaning for those terms. Slezak v. St. Louis Transit Co., 142 Mo.App. 693; Grubb v. K. C. Rys. Co., 207 Mo.App. 16, 230 S.W. 675. There is no evidence to show that the death of deceased directly resulted from a failure to have the gates lowered. It was error, therefore, to submit to the jury this assignment of negligence without including in it all the evidence relating to the lowering of the gates and the knowledge of deceased in respect thereto. Brimer v. Davis, Director General, 245 S.W. 404; Battles v. United Rys. Co., 178 Mo.App. 596. Instruction 1 is erroneous because it made defendant liable for failing to blow the whistle when the Revised Code of the city of St. Louis, which plaintiff identified in evidence, expressly provides that "the steam whistles of danger shall in no case be sounded except in giving usual signals for running trains," and violation of the ordinance is made a misdemeanor. Secs. 1047, 1048, Revised Code, city of St. Louis, 1914. (6) The court erred in giving instruction 3 for the following reasons: (1) There was no evidence that the engineer saw or could have seen deceased in a position of peril. (2) There was no evidence that the train could have been stopped in time to have prevented injury to deceased. Lackey v. United Rys. Co., 231 S.W. 956; Rollison v. Railroad, 252 Mo. 525. (3) There was no evidence that the fireman could have stopped the train or checked its speed, or that he could have given any signal of warning to the deceased. McGee v. Railroad, 214 Mo. 530. (4) Instruction 3 requested by plaintiff and submitting the humanitarian issue was erroneous in that it failed to require the jury to find that the train could have been stopped or its speed checked without injury to the persons on it. Dey v. United Rys. Co., 104 Mo.App. 461; Bell v. Railroad, 72 Mo. 50; Bell v. Railroad, 86 Mo. 599. (5) The instruction is inconsistent, misleading and incapable of intelligent application for it pretends to authorize or permit the jury to find deceased was oblivious of his peril, although he was guilty of negligence in failing to use reasonable and ordinary care to get out of the way of the train after he saw it approaching. Kinlen v. Railroad, 216 Mo. 145; Butler v. United Rys. Co., 238 S.W. 1077; State ex rel. v. Reynolds, 233 S.W. 219; Pope v. Wabash Railroad Co., 242 Mo. 232. (6) The petition does not allege that the deceased was oblivious of his peril or that the defendant's employees saw or might have seen that he was oblivious, and it was error to submit the case to the jury under the humanitarian rule. Knapp v. Dunham, 195 S.W. 1062; Rubick v. Sandler, 219 S.W. 4401. There was no substantial evidence to justify the giving of instruction 3 submitting the case to the jury on the humanitarian doctrine. Underwood v. Railway Co., 182 Mo.App. 252, 168 S.W. 803; McGee v. Railroad, 214 Mo. 530; Degonia v. Railroad, 224 Mo. 564; Burge v. Railroad, 244 Mo. 76; Rollison v. Railroad, 252 Mo. 525; Butler v. United Rys. Co., 238 S.W. 1077; Dey v. United Rys. Co., 140 Mo.App. 461. (7) The court erred in giving plaintiff's instruction 6 authorizing the jury to allow plaintiff compensation for pecuniary loss. Plaintiff, if entitled to recover at all, was only entitled to recover a penalty as a punishment and not as compensation. Sec. tion 4217, R. S. 1919; Grier v. Kansas City, C. C. & St. J. Ry. Co., 286 Mo. 523, 228 S.W. 454; Lackey v. United Rys. Co., 231 S.W. 956; Midwest Nat. Bank v. Davis, 233 S.W. 406; Bloomcamp v. Mo. Pac. Ry. Co., 236 S.W. 388; Pryor v. Payne, 244 S.W. 369. The giving of instruction 6 was erroneous for the further reason that there was no allegation in the petition of any pecuniary loss, and hence the instruction was not supported by the petition. Lackey v. United Rys. Co., 231 S.W. 956. (8) The court erred in refusing to give defendant's instruction 4 as asked. There was no evidence that engineer Bickel saw deceased, or could have seen him or known of his presence on the track or in a position of peril in time to have stopped the train or checked its speed or to have warned deceased and avoided injuring him. An allegation of negligence not supported by the evidence should be withdrawn from consideration by the jury. Lackey v. United Rys. Co., 231 S.W. 956; McGee v. Railroad, 214 Mo. 530. (9) The court erred in refusing to give defendant's in structions 7, 8, 9 and 10, and in modifying said instructions by adding to each the words "unless you find for plaintiff under instruction numbered three," and in giving them as so modified. Daniel v. Pryor, 227 S.W. 102; Underwood v. St. L., I. M. & S. Ry. Co., 182 Mo.App. 252, 168 S.W. 803. (10) The remarks of counsel in his closing argument to the jury were improper and prejudicial. The court erred in overruling defendant's objection to such argument and in refusing to admonish counsel and discharge the jury. Kinney v. Met. St. Ry. Co., 261 Mo. 97; Crockett v. K. C. Rys. Co., 243 S.W. 902; Haynes v. Trenton, 108 Mo. 123; Evans v. Trenton, 112 Mo. 390; State v. Burns, 286 Mo. 665, 228 S.W. 766; Williams v. Railroad, 123 Mo. 573; Levels v. Railroad, 196 Mo. 606; Tuck v. Traction Co., 140 Mo.App. 335; Trent v. Printing Co., 141 Mo.App. 437. (11) The plaintiff's husband was guilty of contributory negligence in going upon the track in front of the train, which he could have seen, if he had looked, and could have heard, if he had listened, and because of his negligence the plaintiff is not entitled to recover, even though the defendant failed to observe the ordinances or was otherwise negligent. The trial court erred, therefore, in refusing to sustain defendant railway company's demurrer to the evidence, and for that reason the judgment ought to be reversed. Holtcamp v. Railroad Co., 208 Mo.App. 316, 234 S.W. 1054, and cases cited; Alexander v. St. L.-S. F. Ry. Co., 233 S.W. 44; Evans v. Ill. Cent. R. Co., 233 S.W. 397; Morrow v. Hines, 233 S.W. 493; McGee v. Wabash R. Co., 214 Mo. 530; Green v. Mo. Pac. Ry. Co., 192 Mo. 141; Stotler v. C. & A. Ry. Co., 204 Mo. 619; Schmidt v. Railroad, 191 Mo. 215. Although the defendant may have been negligent in violating an ordinance in the operation of the train, or in not having the gates lowered at the time the train passed, yet plaintiff is not entitled to recover because her husband was guilty of contributory negligence in going upon the track without looking or listening for the approaching train. Holtcamp v. C. , B. & Q. R. Co., 208 Mo.App. 316, 234 S.W. 1054, and cases cited. There is no room for resorting to presumption in respect to the exercise...