Yakubinis v. Missouri-Kansas-Texas R. Co.

• Decision Date: 05 March 1940
• Docket Number: 36238
• Citation: 137 S.W.2d 504,345 Mo. 943
• Parties: Joseph Yakubinis v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

137 S.W.2d 504

345 Mo. 943

Joseph Yakubinis v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

No. 36238

Supreme Court of Missouri

March 5, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

On remittitur of $ 5000 the judgment will be reversed and the cause remanded (with directions that a new judgment be entered for $ 15,000).

Everett Paul Griffin and Carl S. Hoffman for appellant.

(1) The court erred in refusing the peremptory instruction in the nature of a demurrer to the evidence offered by the defendant at the close of plaintiff's case and at the close of all of the evidence. (a) There was no evidence that the enginemen either saw or could have seen plaintiff in time to have done anything to avoid the accident. (b) The accident did not occur at a public crossing and, at the point where plaintiff was lying or sitting, defendant had the right to expect a clear track. The evidence showed that the enginemen did not see plaintiff, and evidence did not show user by public at that place. Angelo v. Baldwin, 121 S.W.2d 731; English v. Wabash Ry. Co., 108 S.W.2d 51; Degonia v. Railroad, 224 Mo. 564; Pope v Railroad, 242 Mo. 232; Hufft v. Railroad, 222 Mo. 286; Frye v. Railroad, 200 Mo. 377; Ahnefeld v. Railroad, 212 Mo. 280; Mayfield v. K. C. Co. So Ry. Co., 85 S.W.2d 117; Ducoulombier v Thompson, 124 S.W.2d 1105. (c) The facts differ very materially on this appeal. Hence, the previous opinion is not controlling. Crossno v. Terminal Railroad Ass., 62 S.W.2d 1092; Duccoulombier v. Thompson, 124 S.W.2d 1105. Appellant is not estopped from alleging error in refusal of its demurrers to the evidence because appellant, after said demurrers were overruled, offered instructions. The case of Torrance v. Pryor, 210 S.W. 430, and cases following it have been expressly overruled. Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 955; Ambruster v. Levitt Realty Co., 341 Mo. 368. (2) The court erred in giving to the jury plaintiff's Instruction 1. (a) It instructed the jury that plaintiff could recover, even though he was a trespasser and was not actually seen in a position of peril. Angelo v. Baldwin, 121 S.W.2d 731; Ducoulombier v. Thompson, 124 S.W.2d 1105. (b) The instruction omits essential elements to plaintiff's recovery, and yet directs a verdict. It does not require the jury to find that plaintiff was oblivious to his danger, or that there was anything in his demeanor which would have indicated that he was oblivious. It assumes as a fact that he was oblivious. State ex rel. v. Ellison, 272 Mo. 571; Pentecost v. Terminal Ry. Co., 66 S.W.2d 533; Allen v. Mo. Pac. Ry. Co., 294 S.W. 80. It does not require the jury to find that plaintiff was sitting or lying on the rail and that he could be seen in that position; neither does it require the jury to find that he was located at a place where evidence showed he might have been seen. (c) The instruction assumes as facts material issues. It assumes that the injury would have been avoided if the speed had been checked or an additional warning given. It assumes that he was struck by the engine. Barr v. Nafziger Baking Co., 328 Mo. 431; Goodwin v. Eugas, 290 Mo. 673. (d) The instruction submitted the failure to warn or check the speed as primary negligence. Mayfield v. K. C. So. Ry. Co., 85 S.W.2d 116. (e) The instruction did not sufficiently set out facts which should be found by the jury to constitute such a user as would place a duty to be on a lookout. Mayfield v. K. C. So. Ry. Co., 85 S.W.2d 116; English v. Wabash Ry. Co., 108 S.W.2d 51; Karr v. Ry. Co., 108 S.W.2d 44; Voorhees v. Railroad Co., 325 Mo. 835. (f) The instruction gave the jury a roving commissions as to the nature of warning which should have been given and when it should have been given. Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; Lesser v. Ry. Co., 85 Mo.App. 326. (g) The instruction submitted the case on the question of slackening the speed of the train. Under the facts the jury could only speculate as to whether or not slackening the speed would have prevented the accident. State ex rel. Baldwin v. Shain, 125 S.W.2d 41. (3) The court erred in refusing to give Instruction B offered by the defendant. This instruction properly declared the law, and the defense submitted by this instruction was not covered by any other instruction. Clark v. A. T. & S. F. Ry. Co., 6 S.W.2d 954, 319 Mo. 865; Pope v. Railroad Co., 242 Mo. 232; Staunton v. Jones, 332 Mo. 631; Pentecost v. Terminal Ry. Co., 334 Mo. 572; Worth v. Railroad Co., 334 Mo. 1025; Smith v. C., R. I. & P. Ry. Co., 104 S.W.2d 1050. (4) The verdict and judgment are excessive. Perkins v. Terminal Ry. Co., 102 S.W.2d 915; Cole v. Railroad Co., 61 S.W.2d 344; Hiatt v. Wabash Ry. Co., 69 S.W.2d 627; Johnson v. C. & E. I. Ry. Co., 64 S.W.2d 674; Spencer v. Q., O. & K. C. Ry. Co., 317 Mo. 492; Tash v. St. L.-S. F. Ry. Co., 76 S.W.2d 690.

Mason & Flynn and William L. Mason, Jr., for respondent.

(1) The evidence in the form of oral testimony from many witnesses, both of plaintiff and defendant, and the evidence in the form of photographs introduced by both plaintiff and defendant, show conclusively that for at least a thousand feet, as the locomotive approached from the east going west, the plaintiff, as he sat on the rail on the left-hand side, or south side, at the point of the bluff described in the evidence, was plainly visible at all times either to the engineer or fireman, and much of the time to both. (2) As the defendant's engineer, Handley, testified that he was looking out of the window straight ahead of the locomotive during the entire time that he was crossing a space of two thousand feet east of the point where plaintiff was sitting and as plaintiff was plainly visible to the engineer, if he was looking from time to time as the engine covered that space, the evidence was sufficient to show that the engineer actually saw the plaintiff notwithstanding the fact that he denied seeing him. English v. Wabash Ry. Co., 108 S.W.2d 53. (3) While the accident did not occur at a public crossing, it occurred at a place where the defendant's track was so extensively used, adjacent to camps where large bodies of men were collected and using the track, that the defendant had no right to expect a clear track and was under a duty to keep a lookout. The view of the defendants enginemen from the approaching locomotive being obviously clear and unobstructed for a thousand feet or more, the defendant was liable whether its enginemen actually saw plaintiff or not. As plaintiff was leaping from the edge of the track when struck, a sound of the whistle a fraction of a second sooner would have saved him. Yakubinis v. M.-K.-T. Ry. Co., 100 S.W.2d 461; English v. Wab. Ry. Co., 108 S.W.2d 57; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720, 94 S.W. 967; Ahnefeld v. Wab. Ry. Co., 212 Mo. 280, 111 S.W. 95; Savage v. Chicago, R. I. & P. Ry. Co., 328 Mo. 44, 40 S.W.2d 628; Hufft v. Railroad Co., 222 Mo. 301.

OPINION

Douglas, J.

This is the second appeal in a suit for personal injuries suffered by the plaintiff when struck by one of the defendant's trains. On the north bank of the Missouri River, about two miles east of Portland, there was a contractor's camp in connection with some work which was being done on the channel. Between two points where the bluffs jut out almost to the river a busy community was created. The tracks run close to the river's edge between the points of the bluffs and the bank. Coming from the east there is first a quarry where rock is dug and hauled to the river. Then on the river side there is a pile yard into which a spur track has been run from the main line. Where this spur switches from the main track there is a crossing from the pile yard over the main track, through a gate and into a meadow on the opposite side of the tracks. This meadow is used for parking automobiles by residents of the surrounding community who report daily for work, for baseball during the noon hour and for a gathering place at lunch time for those men not living on the boats. A refreshment stand also attracts persons to the meadow. Then farther along and tied up to the bank are several "quarter" boats where some of the men bunk. Leading from the gang plank is a well-worn path across the tracks to a stile over the fence into the meadow. There is another path leading up to the tracks at the western point where the bluffs again approach the river closing in this community. The record is not in agreement as to the distance of this point west of the path across the tracks to the stile. Plaintiff's evidence puts it at fifty or sixty feet. There was evidence of usage along the track between the two points of the bluffs by the several hundred men who work in this space and by people constantly coming to the place for various reasons.

The plaintiff sat down on the rail where the path approached the right-of-way at this western point. He was awaiting the end of the lunch hour intending to go to the camp office on one of the boats and apply for a job. A train came along, he sprang from the rail, but not soon enough. He was hit and injured; so brings this suit. The facts are more fully set out in our previous opinion in 339 Mo. 1124, 100 S.W.2d 461.

That opinion settles the law of this case inasmuch as the issues and the evidence are substantially the same. Matters decided on one appeal will be considered settled on the second appeal in the same case. There are exceptions to this rule such as where a mistake of fact has been made or where the decision did not do justice to the parties. [Crossno v. Terminal Railroad Assn. et al., 333 Mo. 733, 62 S.W.2d 1092; Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105.]

There is some question raised about the...