Zickefoose v. Thompson
| Decision Date | 26 December 1941 |
| Parties | R. W. Zickefoose and Hazel N. Zickefoose, Parents of Laverne Roy Zickefoose, a Minor, Deceased, Respondents, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Rehearing Denied January 6, 1942.
Appeal from Circuit Court of Stoddard County; Hon. J. V. Billings Judge.
Affirmed.
Thomas J. Cole and A. M. Spradling for appellant.
(1) Appellant offered and the court refused his demurrer at the close of respondent's case and at the close of all the evidence in the case. The cause was submitted to the jury under the last chance, or humanitarian doctrine. Appellant submits that there was no evidence in the case under which the cause could be submitted on that theory, and that the demurrers to the evidence should have been sustained and the court committed error in overruling them. (a) When last seen by the fireman, deceased was 100 feet from crossing traveling at a rate of speed between twenty and twenty-five miles per hour. At this rate of speed, according to the evidence, he could have stopped his truck within twenty to fifty feet. Deceased was not in a position of imminent peril and the enginemen were under no duty to sound the whistle or ring the bell. Baker v. Wood 142 S.W.2d 83; Roach v. Kansas City Public Service Co., 141 S.W.2d 800; Hilton v. Terminal Railroad Association, 137 S.W.2d 520; State ex rel. Snider v. Shain, 137 S.W.2d 527; Thomasson v. Henwood, 146 S.W.2d 88; Camp v. Kurn, 142 S.W.2d 772; Swain v. Anders, 140 S.W.2d 730. (b) According to the evidence the truck was in a place of safety and not in a position of peril, and the enginemen had the right to assume that the driver of the truck would stop before he reached the crossing and collided with the box cars. Poague v. Kurn, 140 S.W.2d 13; Thomasson v. Henwood, supra; Clark v. Atchison, T. & S. F. Ry. Co., 6 S.W.2d 954; Elkin v. St. Louis Pub. Serv. Co., 74 S.W.2d 600; Stanton v. Jones, 59 S.W.2d 648; Camp v. Kurn, supra; Guyer v. Mo. Pac. Ry. Co., 174 Mo. 344; Markowitz v. Met. St. Ry. Co., 186 Mo. 350. (c) The enginemen were not required to sound the whistle or ring the bell merely because deceased was approaching the railroad crossing in his truck. When last seen, the deceased was in a place of safety and traveling at a rate of speed at which his truck could be stopped before reaching a place of danger. At this point there was nothing to indicate that deceased was unaware of the train on the crossing and, under such circumstances, no duty rested upon the enginemen to give any alarm. They had the right, under the law, to assume that deceased would not drive his truck from a place of safety into a place of danger. Thomasson v. Henwood, supra; Poague v. Kurn, supra; Hilton v. Terminal Railroad Association, supra; Buehler v. Festus Mercantile Co., 119 S.W.2d 961; Baker v. Wood, supra; State ex rel. Snider v. Shain, supra; Roach v. K. C. Pub. Serv. Co., supra. (d) Deceased was driving his truck at a rate of speed between twenty and twenty-five miles per hour. The evidence shows that the truck could have been stopped within a distance of between twenty to fifty feet. The truck was equipped with good brakes and in perfect running condition and, regardless of the evidence, the court will take judicial notice of the fact that, if it had been traveling at a speed of twenty to twenty-five miles per hour, it could have been stopped within twenty to thirty feet, and, if traveling at a speed of twenty-five to thirty miles an hour, it could have been stopped in much less than 100 feet. Crane v. Sirkin & Needless Moving Co., 85 S.W.2d 911; Chawkley v. Wabash Railroad Co., 297 S.W. 20; Johnson v. Mo. Pac. Ry. Co., 72 S.W.2d 889; Spoeneman v. Uhri, 60 S.W.2d 9; Cross v. Wears, 67 S.W.2d 517; Dowler v. Kurn, 119 S.W.2d 852. (e) The respondents offered the fireman as their witness. He is the only witness that testified as to the distance of the truck, or the lights on the truck, from the crossing when last seen. His testimony showed conclusively that the driver of the truck was, at that time, in a place of safety, being 100 feet from the crossing. No other witness was offered on this point and respondents are bound by his testimony. Wells v. Lusk, 188 Mo.App. 63; Walradt v. St. Joseph Ry., Light, Heat & Power Co., 48 S.W.2d 93; McLain v. Atlas Ins. Co., 67 S.W.2d 849; Williams v. Excavating & Foundation Co., 93 S.W.2d 123. (2) The collision and death of deceased was due to the sole negligence of the driver and the court should have directed a verdict for appellant. Shields v. Keller, 153 S.W.2d 60; Stanich v. Western Union Tel. Co., 153 S.W.2d 54; Smithers v. Barker, 111 S.W.2d 47; Doherty v. St. Louis Butter Co., 98 S.W.2d 742; Borgstede v. Waldbauer, 88 S.W.2d 373; Watts v. Mousette, 85 S.W.2d 487. (3) The court erred in giving Instruction P-1 for the following reasons: (a) The instruction contained declarations which have been condemned by the Supreme Court. Buehler v. Festus Mercantile Co., supra; State ex rel. Snider v. Shain, supra; Hilton v. Terminal Railroad Association, supra; Evans v. Farmers' Elevators Co., 147 S.W.2d 593; Roach v. K. C. Pub. Serv. Co., supra; Hanks v. Anderson-Park, Inc., 143 S.W.2d 314. (b) Instruction No. P-1 given on behalf of respondents is in conflict with Instruction No. 10-D given on behalf of appellant. Smithers v. Barker, supra.
L. E. Tedrick and Phillips & Phillips for respondent.
(1) The Supreme Court has held that the evidence in this case made a prima-facie case under the humanitarian doctrine. Zickefoose v. Thompson, 148 S.W.2d 784. (2) In so ruling this litigation the Supreme Court followed previous cases based on facts similar to those in this case. Womack v. Mo. Pac. Ry., 337 Mo. 1160, 88 S.W.2d 368; Melenson v. Howell, 344 Mo. 1137, 130 S.W.2d 560; Hinds v. C. B. & Q. Ry., 85 S.W.2d 165; Lynch v. Baldwin, 117 S.W.2d 273; Herrell v. Frisco Ry., 322 Mo. 551, 18 S.W.2d 485; Homan v. Mo. Pac. Ry., 334 Mo. 61, 64 S.W.2d 624; Hencke v. St. L. & H. Ry., 335 Mo. 393, 72 S.W.2d 798; Chawkley v. Wabash Ry., 317 Mo. 782. 297 S.W. 22; Zumwalt v. C. & A. Ry., 266 S.W. 725; Rice v. Frisco Ry., 52 S.W.2d 749; Roques v. Butler Co. Ry., 264 S.W. 474; Tavis v. Bush, 280 Mo. 383, 217 S.W. 274; Eppstein v. Mo. Pac. Ry., 197 Mo. 735; Crews v. K. C. Public Service Co., 341 Mo. 1090, 111 S.W.2d 54. (3) In this case the circumstances show that deceased was oblivious of the presence of the train, as shown by his approaching it at undiminished speed; the fact that other people could not see it, and his inquiry of the witness Githens as to what hit him. In "oblivious" cases the Supreme Court holds that the "danger zone" is not limited by the distance in which the vehicle in question could be stopped, while that might be the criterion in "inescapable" cases. Womack v. Mo. Pac. Ry. Co., supra; Hinds v. C. B. & Q. Ry., supra; Lynch v. Baldwin, supra; Homan v. Mo. Pac. Ry., supra; Melenson v. Howell, supra; State ex rel. v. Shain, 137 S.W.2d 529; Crews v. K. C., etc., Co., supra; Trusty "Constructing and Reviewing Instructions", p. 149; Mayfield v. K. C. Southern, 337 Mo. 79, 85 S.W.2d 116; Nagle v. Alberta, 53 S.W.2d 289; Gardner v. Park, 343 Mo. 899, 123 S.W.2d 158; Perkins v. Terminal, 340 Mo. 868; 102 S.W.2d 915; Buehler v. Festus, 343 Mo. 139, 119 S.W.2d 961. (4) Appellant in Point 1 (consisting of five subdivisions) of its brief has cited a great number of cases, none of which, however, have been decided since, or in any way affect or overrule the opinion of the Supreme Court, in this very case, and which opinion is the law of the case and must be followed until overruled by the court that rendered it, and this regardless of whether or not the opinion might be thought to be in conflict with some prior decision of the Supreme Court or Court of Appeals on a somewhat similar state of facts. Const. of Mo. Amend. 1884, Art. 6, Sec. 6; Calvert v. Hall, 251 S.W. 414; Gauck v. Advance Finance Co., 17 S.W.2d 576; Consolidated School Dist. v. New Madrid Co., 227 Mo.App. 221, 52 S.W.2d 425; Kick v. Franklin, 137 S.W.2d 514. (5) Defendant's contention that the court should have directed a verdict for it on sole negligence of deceased is answered completely by the opinion of the Supreme Court holding that the question of defendant's humanitarian negligence was for the jury. (6) Instruction P-1 was proper. It did not require the jury to find that deceased was in and approaching a position of peril, or that deceased was approaching a position of peril, or was about to enter a position of peril. It required the jury to find that deceased was approaching the crossing and in a position of peril of collision with said train. He was required to be in a position of peril while approaching the railroad crossing. Plaintiff's instruction followed the formula in the frequently cited case of Banks v. Morris & Co., 257 S.W. 482, 302 Mo. 254.
This is an action for damages in the death of Laverne Roy Zickefoose, a minor, which occurred at Neelyville, Missouri, on the 10th day of February, 1937. The suit was instituted by the parents of the deceased in the Circuit Court of Butler County, on the 6th day of May, 1937. On application for a change of venue by appellant, the cause was transferred from Butler County to Stoddard County. The cause was tried in the Circuit Court of Stoddard County on the 24th day of January, 1938, resulting in a verdict of the jury for defendant. On the 26th day of January, 1938, the plaintiffs filed their motion for a new trial which was sustained by the court on the 3rd day of March, 1939, and, on the same day and at the same term, the defendant filed...
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