Wright v. St. Louis-San Francisco Ry. Co.

• Citation: 37 S.W.2d 591,327 Mo. 557
• Decision Date: 31 March 1931
• Docket Number: 29004
• Parties: Melvin Wright v. St. Louis-San Francisco Railway Company, Appellant
• Court: United States State Supreme Court of Missouri

37 S.W.2d 591

327 Mo. 557

Melvin Wright v. St. Louis-San Francisco Railway Company, Appellant

No. 29004

Supreme Court of Missouri

March 31, 1931

Rehearing Overruled March 31, 1931.

Appeal from Butler Circuit Court; Hon. Charles L. Ferguson Judge.

Reversed and remanded.

E. T Miller and Ward & Reeves for appellant.

(1) The plaintiff did not make a case for the jury and the defendant's demurrer at the close of the whole case should have been given. (a) We concede that the evidence tends to show that no alarm of the whistle or bell was given, but we insist that plaintiff's contributory negligence nevertheless defeats his recovery. Grossman v. Well, 282 S.W. (Mo. Sup.) 713; Gubernick v. Rys. Co., 217 S.W. (Mo. Sup.) 33; Nunn v. Railroad, 258 S.W. (Mo. App.) 20; Tannehill v. Railroad, 279 Mo. 158; Sullivan v. Railroad, 317 Mo. 996. (b) There was an unobstructed view for at least twenty or twenty-five feet at the north crossing, although the plaintiff did not look for a train, which could then have been seen for a distance of over a mile. After making the first crossing there were obstructions to view until the second crossing was reached and the plaintiff had exact and accurate knowledge of all these obstructions at the time and knew that he could not see the train approaching the second crossing in time to stop his automobile after passing the box cars. He did not change his speed or stop his car between the two crossings and it was making the usual noises of such a Ford car. Under these circumstances the plaintiff was guilty of such contributory negligence as prevents him from recovering. Monroe v. Railroad, 297 Mo. 633; Central Coal Co. v. Ry., 215 S.W. (Mo. App.) 914; Dickey v. Railroad, 251 S.W. (Mo. App.) 112; State v. Bland, 237 S.W. (Mo. Sup.) 1018; Henderson v. Railroad, 248 S.W. (Mo. App.) 987. (c) The evidence is uncontradicted that from the north crossing to the south crossing plaintiff traveled 600 feet, did not shift his gears and did not change his speed and was running at the rate of six miles per hour, and that the train was not running to exceed 30 or 35 miles an hour for a distance of a mile before reaching the south crossing. The distance from the south crossing to the north crossing was 447 feet. Plaintiff's own evidence shows that if he had looked where he had an unobstructed view at the north crossing he could have seen the train for more than a mile on this clear, bright, fogless and smokeless evening. According to his own testimony this unobstructed view was the last he was to have, or did have, before going on the railroad track at the south crossing immediately in front of the train. The evidence clearly shows that the plaintiff did not look at the north crossing, but if he did look he negligently looked, because the physical facts show that he would have seen the train if he had carefully looked. To say that he looked and did not see is to contradict the conceded physical facts, and such testimony should not be given credence. Payne v. Railroad, 136 Mo. 562; Hook v. Railroad, 162 Mo. 569; Sexton v. St. Ry. Co., 245 Mo. 254; Aldridge v. Railroad, 215 Mo.App. 230; Roseman v. Rys. Co., 251 S.W. (Mo. App.) 106; Sanguinette v. Railroad, 196 Mo. 494; Clark v. Railroad, 242 Mo. 605. (d) Plaintiff did not exercise ordinary care for his own safety. It was his imperative duty to stop his automobile in order to listen effectively for the approach of the train before going upon the south crossing where he was struck by the train. Monroe v. Railroad, 280 Mo. 490; Campbell v. Railroad, 175 Mo. 173; Brice v. Payne, 263 S.W. (Mo. App.) 1007; State v. Bland, 237 S.W. (Mo. Sup.) 1019; Monroe v. Railroad, 297 Mo. 653; Underwood v. Railroad, 190 Mo.App. 414; DeRousse v. West, 198 Mo.App. 293; Central Coal Co. v. Railroad, 215 S.W. (Mo. App.) 914. (e) The plaintiff cannot justify or excuse his own heedlessness and negligence by a reliance upon the presumption that the statutory warnings would be given. Underwood v. Railroad, 182 Mo.App. 252; Langley v. Hines, 207 Mo.App. 587; Lyter v. Hines, 224 S.W. (Mo. App.) 837; Nichols v. Railroad, 250 S.W. (Mo. App.) 628; Dempsey v. Traction Co., 240 S.W. (Mo. App.) 1093. (2) Plaintiff's Instruction No. 1 submitted to the jury as a ground of recovery and directed a verdict for plaintiff if the jury believed that the defendant negligently permitted obstructions consisting of box cars and cattle cars to be placed and remain upon its passing track so as to obstruct the view of plaintiff in approaching the crossing, provided the jury further found that such negligence was the proximate cause of plaintiff's injuries. This instruction directed a verdict for the plaintiff, irrespective of whether or not the statutory signals were given as the train approached the crossing. The evidence admits that the end of the box car was from eight to twelve feet from the traveled portion of the highway and it in no way actually obstructed the travel on the highway. Plaintiff knew of its location and carefully observed it as an obstruction to his view as he approached the crossing. We concede that if the plaintiff was entitled to go to the jury the fact that the box car was so near the traveled road as to prevent one from seeing the approach of the train until the automobile was on or near the track that it could not be stopped, that such fact was for the consideration of the jury in passing upon the contributory negligence of the plaintiff. The plaintiff had seen the box car before and was well aware of its location and he saw and was paying close attention to this obstruction as he approached the crossing. The mere fact that the box car was so located could not afford a basis of recovery in this case, uncoupled and disconnected with the manner of operation of the train. The trial court also erred in this connection in refusing defendant's Instruction No. C withdrawing this matter as an independent ground of recovery in this case. Spain v. Railroad, 190 S.W. (Mo. App.) 358; Fife v. Railroad, 174 Mo.App. 655; Porter v. Railroad, 199 Mo. 82. (3) Plaintiff's Instruction No. 2 was erroneous. That instruction was misleading to the jury and was calculated to lead the jury to believe that the operators of the train owed the plaintiff a greater degree of care than ordinary care. The defendant did not owe the plaintiff any more duty or care than to either sound the whistle at intervals or to continuously ring the bell from a distance of 80 rods from the crossing until the crossing was reached. But under this instruction the jury were in effect told that in addition to giving these warnings the degree of care required of the operators of the train was increased according to the liability or danger at this obstructed crossing. Central Coal Co. v. Railroad, 215 S.W. (Mo. App.) 919; Porter v. Railroad, 199 Mo. 82.

Charles T. Bloodworth and Sam M. Phillips for respondent.

(1) The following are cases similar to the instant case and in which the injured parties were held not guilty of contributory negligence as a matter of law, and the various plaintiffs entitled to recover. Weigman v. Ry. Co., 223 Mo 699; Clay v. Ry. Co., 5 S.W.2d 409; Pierson v. Railroad, 275 S.W. 561; Roques v. Railroad, 264 S.W. 474; Toeneboehn v. Frisco, 298 S.W. 802; Dobson v. Frisco, 10 S.W.2d 531; McKerall v. Frisco, 257 S.W. 166; Jackson v. Ry., 189 S.W. 381; Kenney v. Railroad, 105 Mo. 277; State ex rel. v. Trimble, 254 S.W. 846; Dutton v. K. C., etc., Assn., 292 S.W. 718; Hoff v. Wabash, 254 S.W. 874; Jones v. Frisco, 220 S.W. 484; Monroe v. Railroad Co., 219 S.W. 70; Shaffer v. Rock Island, 254 S.W. 260; Brown v. Same, 252 S.W. 55; San Antonio, etc., Co. v. Schoeffer, 194 S.W. 684. (a) Where a traveler knows that it is not the usual train time and does not hear customary signals he is not negligent, as a matter of law, in going upon the track without looking. Cahill v. Railroad, 92 Ky. 345, 18 S.W. 2. (b) The same rule applies when the train is running behind time. 33 Cyc. 1010, n. 29; Toledo, etc., Ry. v. Jones, 76 Ill. 311; Cincinnati etc. Co. v. Howard, 124 Ind. 280; Tucker v. Ry., 122 Mich. 149; Salter v. Ky., 75 N.Y. 273; Howard v. Ry., 1 N.Y.S. 528. (c) As plaintiff drove his automobile across the upper crossing his attention was attracted and engrossed by the cultivator that was tied on the back of Adam Hawk's wagon, and which plaintiff thought might strike his automobile. This fact is a proper matter to be taken into consideration on the question of plaintiff's contributory negligence and would justify the jury in finding for plaintiff on this point. 33 Cyc. 1014; n. 51-55; 33 Cyc. 1121, n. 17; Dutton v. Terminal Assn., 292 S.W. 718; Ruenzi v. Payne, 231 S.W. 294; Curlin v. Co., 232 S.W. 215; McDaniel v. Hines, 292 Mo. 401. (d) Plaintiff's failure to stop before driving over the Buncomb crossing, was not, of itself, negligence. Shaffer v. Railroad, 300 Mo. 477, 263 U.S. 687, 68 L.Ed. 507; Monroe v. Chicago & Alton, 297 Mo. 633, 249 S.W. 649; Brown v. Chicago, R. I. & Pac., 252 S.W. 56; Monroe v. Chicago & Alton, 280 Mo. 483, 219 S.W. 68; Swigart v. Lusk, 196 Mo.App. 471, 192 S.W. 138; Donohue v. Railroad, 91 Mo. 357; Killingsworth v. Railroad, 209 S.W. 304; Kenney v. Railroad, 105 Mo. 288; Pierson v. Railroad, 275 S.W. 262. Generally stopping is not essential unless both seeing and hearing are ineffectual without doing so. Berry on Automobiles, (6 Ed.) 725, n. 84; Swigart v. Lusk, 196 Mo.App. 471, 192 S.W. 138. If plaintiff had stopped to look he could have seen no more because twenty-three box cars obscured his vision in the direction from which the train was coming. The plaintiff did not have to stop his car, get out, walk up to the track and look both ways. State ex rel. v. Trimble, 254 S.W. 850; McKerall v. Frisco, 257 S.W. 169. (2) The...