Zickefoose v. Thompson

• Decision Date: 12 March 1941
• Docket Number: 36663
• Citation: 148 S.W.2d 784,347 Mo. 579
• Parties: R. W. Zickefoose and Hazel N. Zickefoose, Parents of Laverne Roy Zickefoose, a minor, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

148 S.W.2d 784

347 Mo. 579

R. W. Zickefoose and Hazel N. Zickefoose, Parents of Laverne Roy Zickefoose, a minor, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant

No. 36663

Supreme Court of Missouri

March 12, 1941

Appeal from Stoddard Circuit Court; Hon. J. V. Billings Judge.

Affirmed.

Thomas J. Cole and Spradling & Strom for appellant.

(1) The demurrer to the evidence should have been sustained for the following reasons: the deceased could have seen the freight car standing across the highway when he approached the crossing; that deceased could have seen the freight car thereafter in time to have averted the collision by the exercise of due care; and that deceased failed to exercise the highest degree of care in proceeding toward the railroad track. State ex rel. v. Shain, 105 S.W.2d 919; Dimond v. Railroad Co., 141 S.W.2d 795; State ex rel. v. Bland, 237 S.W. 1019; Evans v. Railroad Co., 249 S.W. 399; Philadelphia & Railroad Co. v Dillon, 114 A. 62; Allison v. Railroad Co., 145 P. 608; Farmer v. Railroad Co., 104 N.E. 492; Weston v. Railroad Co., 139 S.E. 237; Tidwell v Railroad Co., 157 S.E. 535; Mailhot v. Railroad Co., 173 N.E. 422; Railroad v. Hughes Co., 154 N.E. 916; Worden v. Railroad Co., 193 N.W. 356; Smith v. Railroad Co., 53 F.2d 186; Brown v. Railroad Co., 61 F.2d 339. (a) United States Highway 67 runs north and south; the railroad runs east and west; the highway is straight and level south of the intersection for more than a quarter of a mile. The deceased was traveling north and approached the intersection from the south. The train occupied the crossing at the time deceased approached it. The Chevrolet truck operated by deceased had just recently been overhauled and the lights were good and the brakes in fine condition. Under this state of facts the law is well settled in this State that the failure of the deceased, where a duty to look exists, to see what is plainly visible, when he looks, constitutes contributory negligence as a matter of law. State ex rel. v. Shain, 105 S.W.2d 918; Dempsey v. Horton, 84 S.W.2d 625; Monroe v. C. & A. Ry. Co., 249 S.W. 648; Dowler v. Kurn, 119 S.W.2d 856; Parkville Milling Co. v. Massman, 83 S.W.2d 131; Fowler v. Railroad Co., 84 S.W.2d 200; Mockowik v. Railroad Co., 196 Mo. 570; Schmidt v. Railroad Co., 191 Mo. 228. (b) Under Section 7775, Revised Statutes 1929, Mo. Stat. Ann., p. 5197, the deceased, while operating motor vehicle on the highway of this State, was required to exercise the highest degree of care for his own safety as well as the safety of others and, a failure to exercise such degree of care is negligence per se. Rohmann v. Richmond Heights, 135 S.W.2d 383; Rowe v. Railroad Co., 41 S.W.2d 634; Laun v. Railroad Co., 216 Mo. 578; Weller v. Railroad Co., 120 Mo. 653; Harlan v. Railroad Co., 64 Mo. 482; Stotler v. Railroad Co., 204 Mo. 636; Holland v. Railroad Co., 210 Mo. 351. (2) The trial court did not assign its reasons for sustaining the motion for a new trial. However, that would not preclude this court from examining the record for the purpose of ascertaining if the verdict of the jury was against the weight of the evidence. The verdict of the jury was abundantly supported by the evidence. There was no evidence in the record justifying the trial court in sustaining the motion for a new trial. Under the facts and evidence in this cause the court should have sustained the demurrers of appellant to the evidence and its action in sustaining the motion for a new trial was an abuse of its discretion, and was arbitrary and unjustified. Rose v. Thompson, 141 S.W.2d 827; McDonald v. Heinemann, 141 S.W.2d 182; Schipper v. Brashear Truck Co., 132 S.W.2d 995; Lyons v. Corder, 253 Mo. 561; Loftus v. Railroad Co., 220 Mo. 480. (a) The evidence in this cause was insufficient to take the case to the jury and, to grant a new trial on the ground that the finding of the jury is against the weight of the evidence would be arbitrary and an abuse of the discretion of the court. Rose v. Thompson, 141 S.W.2d 827; Payne v. Reed, 59 S.W.2d 44; Castorina v. Herrmann, 104 S.W.2d 151; Gottschalk v. Wells, 274 S.W. 401.

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

(1) The defendant was guilty of negligence in leaving its string of dark boxcars for a period of five or six minutes across and blocking United States Highway 67, which at said point was composed of light-absorbing blacktop, which rendered the railroad cars invisible, without stationing a man with a lighted lantern or adopting some other means to warn the traveling public of the presence of said train, Poehler v. Lonsdale, 129 S.W.2d 59; Elliott v. Mo. Pac., 52 S.W.2d 448, 227 Mo.App. 225; Carson v. Baldwin, 144 S.W.2d 136. (a) Both of the above cases are in point, that is, both defendants were held to be negligent for blocking a railroad crossing with boxcars in the nighttime without giving warning of some kind of the presence of the train. Obstructing a highway at night with a string of boxcars with any other kind of an obstruction. (b) There are cases without number holding that it is negligence to place or leave an obstruction in a highway at night, without a red light or some kind of danger signal or warning of its presence. See the following cases, the first an unlighted bus, the second, an unlighted truck. Powell v. Schofield, 15 S.W.2d 876, 223 Mo.App. 1041; Jones v. Mo. Freight Transit Co., 40 S.W.2d 465, 225 Mo.App. 1076; 3 Berry on Automobiles (7 Ed.), 76; 43 C. J., p. 1060, secs. 1836-1838. (c) The cities of this State have been held liable for maintaining or permitting to remain unguarded or unlighted obstructions in their streets. Gerber v. Kansas City, 105 Mo.App. 191; Ashbell v. Joplin, 124 S.W. 22, 104 Mo.App. 259; Burton v. Kansas City, 168 S.W. 889, 181 Mo.App. 427. (d) The courts universally hold the person causing or placing the unlighted obstructions in the highway liable. Mahar v. Donk Coal & Coke Co., 20 S.W.2d 888, 323 Mo. 799; Applebee v. Ross, 48 S.W.2d 900, 82 A. L. R. 288; Lang v. Investment Co., 59 S.W.2d 63, 227 Mo.App. 1123; Melilan v. Whitlow Const. Co., 278 S.W. 365; 43 C. J., p. 1099, sec. 1864. (2) It is the duty of one placing an obstruction in a highway to maintain sufficient lights, signals and warnings. 43. C. J. 1113, sec. 1875. It was held that a sewer contractor who opens a ditch in a public road, leaving it at night with neither barrier or warning light, is guilty of negligence. Williamson v. Mullins, 180 S.W. 395. (3) Cases in which it was held that driver of automobile running into an unlighted obstruction in street at nighttime was not guilty of contributory negligence as matter of law. Plater v. Mullins Const. Co., 17 S.W.2d 658, 223 App. 650; Love v. Kansas City, 118 S.W.2d 69; Wilmore v. Holmes, 7 S.W.2d 410; Ross v. Hoffman, 269 S.W. 679; Melican v. Whitlow Const. Co., 278 S.W. 361; Kendrick v. Kansas City, 237 S.W. 1011. In each of the cases just cited the question of the injured person's contributory negligence was held a jury question, as well as also the negligence of the defendant in leaving an unguarded, unlighted obstruction in the highway. (a) In the following cases the contributory negligence of driver hitting motor vehicle parked on highway in nighttime without tail light or other warning held for jury. Pfeiffer v. Schee, 107 S.W.2d 170; McGrory v. Thurman, 84 S.W.2d 147; Drakesmith v. Ryan, 57 S.W.2d 727. (3) The presumption is that deceased was exercising due care for his own safety at the time of his death. Whiteaker v. Mo. Pac., 15 S.W.2d 952; Pulsifer v. City, 47 S.W.2d 233, 226 Mo.App. 529; Cech v. Chemical Co., 20 S.W.2d 509, 323 Mo. 601; Jones v. Frisco, 220 S.W. 484.

Ellison, J. Leedy, J., concurs; Tipton, P. J., concurs in result.

OPINION

ELLISON

This action was brought by the plaintiffs-respondents for the $ 10,000 penalty allowed by the wrongful death statute, Section 3262, Revised Statutes 1929, Mo. Stat. Ann., p. 3353, for the alleged negligent killing of their unmarried minor son, Laverne Roy Zickefoose, when the truck he was driving on Highway 67 near Neelyville, Missouri, ran into the side of a freight train operated by the Missouri Pacific Railroad Company, then and now in charge of the defendant-appellant Guy A. Thompson as trustee. The case was tried in the Circuit Court of Stoddard County on change of venue from Butler County and ten members of the jury returned a verdict for appellant. Respondents' motion for new trial complained: that the verdict was against the weight of the evidence; of the giving of five instructions for appellant; and of the erroneous admission and exclusion of evidence. The trial court sustained the motion without assigning any reasons for its ruling.

Appellant takes the burden in his brief of establishing that the motion for new trial was not sustainable on either of the first two grounds assigned therein. As to the first, he contends that no verdict for respondents could be allowed to stand because there was no substantial evidence to support such a verdict. If that be true, of course the verdict returned for appellant was not against the weight of the evidence. He also affirms that all the specified instructions given at his request were correct. The remaining assignment in the motion, that error was committed in the admission and exclusion of evidence, is indefinite and fails to point out the evidence complained of. Both parties ignore it in their briefs, and we do likewise.

The casualty occurred at a point on Highway 67 where the Doniphan branch of the Missouri Pacific crosses east and west over the highway practically at right angles. It was between 6 and 7 o'clock on the evening of February 10, 1937, after dark. The train was engaged in switching operations...