Wolverton v. Kurn

• Decision Date: 30 October 1941
• Docket Number: 37732
• Citation: 156 S.W.2d 638,348 Mo. 908
• Parties: Bethel Lee Wolverton, a minor, by R. L. Wolverton, her father and natural guardian, v. J. M. Kurn and John G. Lonsdale, Trustees of the St. Louis-San Francisco Railway Company, a Railroad Corporation, Appellants
• Court: Missouri Supreme Court

156 S.W.2d 638

348 Mo. 908

Bethel Lee Wolverton, a minor, by R. L. Wolverton, her father and natural guardian, v. J. M. Kurn and John G. Lonsdale, Trustees of the St. Louis-San Francisco Railway Company, a Railroad Corporation, Appellants

No. 37732

Supreme Court of Missouri

October 30, 1941

Rehearing Denied December 12, 1941.

Appeal from Butler Circuit Court; Hon. Robert I. Cope Judge.

Reversed.

E G. Nahler and Ward & Reeves for appellants.

(1) There was no substantial testimony tending to prove that the engineer could have stopped the train or slowed the train down enough so as to have prevented striking the wagon. Stark v. Berger, 125 S.W.2d 870; Potter v. Railroad, 297 S.W. 159; Grief v. Lead Co., 274 S.W. 83; Pedigo v. Railroad, 272 S.W. 1029; Rollison v. Railroad, 252 Mo. 525; Dyrcz v. Railroad, 238 Mo. 33; Betz v. Railroad, 253 S.W. 1089; Keele v. Railroad, 258 Mo. 62; Neill v. Railroad, 113 S.W.2d 1073. (2) Therefore, there was a total failure of proof that the train could have been stopped or its speed slackened so as to predicate a recovery under the humanitarian doctrine. Messe v. Thompson, 344 Mo. l. c. 738, 129 S.W.2d 847; Burge v. Railroad, 244 Mo. l. c. 96; Alexander v. Railroad, 289 Mo. 5; Murrell v. Railroad, 279 Mo. 92; Tannehill v. Railroad, 279 Mo. 158; State ex rel. v. Reynolds, 289 Mo. 479; Henson v. Railroad, 256 S.W. l. c. 775; Whitesides v. Railroad, 186 Mo.App. 608. (3) Antecedent primary negligence is not to be confused with negligence under the humanitarian doctrine. State ex rel. v. Shain, 125 S.W.2d 41. (4) The employees of the defendants are not chargeable with negligence on account of sounding the whistle as the train approached the crossing in question. Sale v. Railroad, 341 Mo. 1157, 111 S.W.2d 98. (5) It is a matter of speculation and conjecture whether or not any possible slackening or slowing down could have given the wagon and team sufficient time to have gotten across the track beyond the overhang of the train, when it is conceded that the wagon was struck at the front end. Messe v. Thompson, 344 Mo. l. c. 783, 129 S.W.2d 847; State ex rel. v. Shain, 125 S.W.2d 44; State ex rel. v. Hostetter, 125 S.W.2d 835.

L. E. Tedrick and Phillips & Phillips for respondent.

(1) Defendants' engineer could have avoided collision by timely applying his brakes and thereby slowing down the train and permitting the wagon to escape, instead of continuing to sound the whistle. Tharp v. Thompson, 139 S.W.2d 1116; Peterie v. Met. St. Ry. Co., 164 S.W. 254, 177 Mo.App. 359; Hart v. Chicago, M. & St. P. Ry. Co., 265 S.W. 116; Roques v. Butler County Ry., 264 S.W. 474; Homan v. Mo. Pac. Ry., 64 S.W.2d l. c. 623, 334 Mo. 61; Logan v. Chicago, B. & Q. Ry. Co., 254 S.W. 705, 300 Mo. 611; Hencke v. St. Louis & H. Ry. Co., 72 S.W.2d 798, 335 Mo. 393; Rummels v. Illinois Cent. Ry., 15 S.W.2d 363; Dutton v. Kansas City Term. Ry., 292 S.W. 718; Sing v. Frisco Ry., 30 S.W.2d 37; Hoelzel v. Chicago, etc., Ry., 85 S.W.2d 126, 337 Mo. 61; Phillips v. Frisco, 87 S.W.2d 1035, 337 Mo. 1068; Robinson v. Chicago, B. & Q. Ry., 38 S.W.2d 514; Werndle v. St. Louis-San Francisco, 67 S.W.2d 810; Smith v. Thompson, 142 S.W.2d l. c. 75. (2) From the facts and circumstances in evidence, the jury was justified in finding that if the brakes on the train had been applied in time, the train would have been slowed up sufficiently for the wagon to have escaped the collision. The fact that the wagon could have so escaped can be shown by circumstantial evidence. Smith v. Thompson, 142 S.W.2d 75; Meese v. Thompson, 129 S.W.2d 847; Gann v. Chicago, etc., Ry., 319 Mo. 214, 6 S.W.2d 39; Tharp v. Thompson, 139 S.W.2d 1116. (3) The plaintiff is not bound by the statement of defendants' engineer that it took two seconds for the brakes to take hold, but, to the contrary, was entitled to the benefit of his admission that the brakes took hold instantly, because that statement would be in support of the verdict. And this is true regardless of what some other witness has sworn in some other case about how long it would take for brakes to act. Maginnis v. Mo. Pac. Ry., 187 S.W. 1167, 268 Mo. 667. It was necessary for plaintiff to use defendants' engineer to prove certain facts, but plaintiff is not bound by all of the engineer's testimony, and particularly that which he gave in favor of and on cross-examination by his employer. Maginnis v. Mo. Pac., 187 S.W. l. c. 1167, 268 Mo. 667. A jury may believe all the testimony of a witness, or may accept it in part or reject it in part. Tharp v. Thompson, 139 S.W.2d 1116. The engineer in this case testified that when the brakes were set in emergency that they took hold immediately, and then he says it takes half a second for the air to drain out of a car. If he means by a "second" the tick of a watch, he might be correct, but a watch ticks five times per second. This point is fully discussed in the following cases: Paul v. Frisco, 275 S.W. 575; Bury v. Frisco, 17 S.W.2d l. c. 551. To a veteran engineer like the one involved in this case, the comprehending of the situation and the applying of the emergency, takes but the "tenth part of a second." Zumwalt v. Railroad, 266 S.W. l. c. 725; Moore v. Frisco, 283 S.W. l. c. 734. Defendants' train was approaching one of the public highways of the State, and it was their duty to keep a sharp lookout. Herrell v. Frisco, 18 S.W.2d 481; Dyer v. Railroad, 25 S.W.2d 508, 223 Mo.App. 1001; Messer v. Ry., 274 S.W. 864; Smith v. Company, 43 S.W.2d 548. In order for defendants to be liable it is not necessary that the engineer could have foreseen the exact evil that would follow his negligent act of continuing to sound the whistle instead of applying the brakes. Fowler v. M., K. & T. Ry., 84 S.W.2d 194, 229 Mo.App. 561. (4) One is bound to see what is in his immediate line of vision, and the court will reject his testimony that he did not do so. Logan v. C., B. & Q. Ry., 254 S.W. 704, 300 Mo. 611; Brown v. Alton Ry., 132 S.W.2d 714. Where a railway and highway run parallel and near together, a traveler upon the latter and the servant in charge of a train upon the former should each regard the probability of the other using their respective places of travel near the same place and at the same time; and each should use reasonable care and caution, governed by the situation of the highways with respect to each other, in managing their respective vehicles of travel. Brown v. Mo. Pac. Ry. Co., 89 Mo.App. 192. Continuing the whistle was negligence. Fowler v. Railroad, 84 S.W.2d 194; 52 C. J., p. 767, and cases cited; Note 14 et seq.; Louisville, etc., Ry. Co. v. Stranger, 7 Ind.App. 179, 34 N.E. 688, 32 N.E. 209. The operatives of defendant's train saw, or could have seen, by the exercise of the proper degree of care, that the team and wagon and its occupants were in close proximity to defendant's track, upon which they were approaching at the time they sounded the whistle. Fowler v. M., K. & T. Ry. Co., 84 S.W.2d 194. For other cases holding to the same effect, see: Feeney v. Wabash Ry. Co., 123 Mo.App. 420; Wheeler v. Wabash Ry., 141 S.W. 472, 159 Mo.App. 579; Bush v. M., K. & T. Ry., 144 S.W. 1123, 164 Mo.App. 420; Holland v. Mo. Pac., 214 Mo.App. 490, 257 S.W. 202. (5) The wagon and team were in the danger zone when the mules became frightened, unmanageable, and started to run away 148 feet from the point of impact, down a public road that crossed defendants' track in front of its train. Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Kasperski v. Rainey, 135 S.W.2d l. c. 14; Neill v. Alton Ry. Co., 113 S.W.2d l. c. 1075. (6) In passing on the demurrer to the evidence, all of plaintiff's evidence and all reasonable deductions therefrom are taken as true, and all defendants' evidence to the contrary is disregarded. Maginnis v. Mo. Pac. Ry., 187 S.W. 1165, 286 Mo. 667; Trial Key No. 156 (3); Zimmerman v. Salter, 141 S.W.2d 137. (7) The Court of Appeals must affirm the trial court's judgment if it can do so on any theory, irrespective of whether that theory is advanced by the respondent, and may affirm a judgment on its own theory of the evidence. Brown v. Alton Ry. Co., 132 S.W.2d 713, 723; Appeal and Error, Key. No. 171 (1).

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries. Plaintiff had verdict and judgment for $ 3000. Appeal was taken to the Springfield Court of Appeals which reversed and remanded the cause, but on dissent of one of the Judges (who considered outright reversal necessary) it was certified here. [Wolverton v. Kurn, 149 S.W.2d 62.]

Plaintiff's case was submitted solely upon humanitarian negligence. Defendants contend that no case was made for the jury. The following facts appear from the evidence considered most favorably to plaintiff. Defendants' train struck the wagon, in which plaintiff was riding, at a public road crossing. The railroad ran from southwest to northeast; the train was traveling northeast about 25 miles per hour. The wagon, in which plaintiff was riding, was pulled by a team of mules. (For description of the mules and other details see opinion of Court of Appeals 149 S.W.2d l. c. 64.) Plaintiff's father (who was driving) and mother were sitting in chairs in the front of the wagon. Plaintiff and their other children sat on a board across the wagon bed behind them. As they traveled northeast along the public road parallel with the railroad, the train coming behind them whistled for the crossing (there was a section crew working near the crossing) and the mules began to run away. Plaintiff's father was able to hold them down to about 10 miles per hour. About 80 feet from the point where the mules began to run the public road turned north to cross the track. However, there was a private road,...