102 S.W.2d 581 | Mo. | 1937
Lead Opinion
Martha Connole, administratrix of the estate of Louis Di Carlo, deceased, instituted suit against the East St. Louis Suburban Railway Company, a corporation, for $10,000 damages, for the benefit of the widow and two dependent minor children of said Di Carlo [Smith-Hurd R.S. Ill., 1929, Chap. 70, Secs. 1, 2], arising out of the death of said Di Carlo in a collision at a highway-interurban grade intersection in the State of Illinois between an automobile truck and trailer operated by Di Carlo and a car of said railway. The jury found for defendant. Judgment accordingly and plaintiff appeals.
Plaintiff's petition alleged several grounds of negligence; and plaintiff sought recovery under instructions based on primary negligence charging defendant with (1st) the operation of its interurban car at a dangerous rate of speed; (2nd) failure to give warning signals; and (3rd) failure to exercise ordinary care to slacken the speed or stop said car after deceased was in imminent peril.
Defendant's answer was a general denial and, pleading its theory of the Illinois law, set up the affirmative defense of contributory negligence, and submitted its defense on instructions charging decedent with negligence in failing to look; in failing to listen; in failing to observe the Illinois "stop" law and an instruction on the effect of contributory negligence under the law of Illinois.
Plaintiff's reply denied the charges of contributory negligence, defendant's interpretation of the Illinois law and pleaded plaintiff's interpretation of said law.
The accident happened about 2:40 P.M., October 13, 1931. Louis Di Carlo was operating an automobile truck-trailer, with Leonard Valle as relief operator, in a northerly direction on Cookson road out of Fairmount City, Illinois, intending to proceed to St. Louis over United States Highway 40, an approximately east and west concrete slab at the scene of the collision, when the truck-trailer was struck by an eastbound car of defendant at the grade intersection of Cookson road and defendant's interurban tracks. Di Carlo was seated on the west side of the truck. The truck-trailer was twenty-six feet long and, with the load, weighed 23,800 pounds. The interurban tracks paralleled Highway 40 for a half mile or more west of Cookson road, and the Cookson road-interurban intersection was about five feet south of Highway 40. Approaching said intersection from the south and on the east side of Cookson road, according to defendant's witnesses, there was a *697 highway "stop" sign five or six feet south of defendant's south rail and a street marker two or three feet north of said "stop" sign, but plaintiff's witness placed the "stop" sign fifteen feet and the street marker six to eight feet south of defendant's track. Defendant's track, approaching the intersection from the west, was on a curve, sweeping around to the right or south. Immediately west of Cookson road and four or five feet south of the track a fence, trees and shrubbery, paralleled the tracks. The motorman was stationed on the right or south side of the defendant's car, approximately over the south rail. He testified that, on account of the obstructions to the view, he was unable to see the interurban track on Cookson road, until within two hundred feet of the intersection and could not see traffic approaching from the south on Cookson road; that he sounded the crossing whistle — two longs and two shorts — two hundred feet from the intersection; that when he was two hundred feet from the intersection, he saw no automobile; that the first time he saw the truck was when the car was twenty to twenty-five feet from the crossing and the truck, traveling four or five miles an hour, rolled out on the rail in front of him, as if "pulling on down there to stop right in the track and it rolled up to the second rail;" that it moved from one rail to the other, about four feet, while the car moved twenty to twenty-five feet; that the car was traveling twenty-five to thirty miles an hour; that it had been raining and the rails were wet; that immediately, upon seeing the truck, he began to sound the gong, blew two short blasts of the whistle, threw off the power and put the car in emergency; that, although he slackened the speed of the car probably five miles an hour, he was unable to stop and the car struck the truck right at the cab, threw it around off the track and knocked the cab off the truck; that the driver of the truck was killed, and that, under the existing conditions, if traveling twenty miles an hour he could have stopped in seventy-five to eighty-five feet; if twenty-five miles an hour, in eighty-five to one hundred feet, although he admitted testifying in his deposition that he could stop the car in shorter distances, for instance, at twenty miles an hour in sixty to seventy feet.
Leonard Valle was the only eyewitness to the collision offered by plaintiff. He testified that Di Carlo and he expected to return and wanted to identify the "turn off" into Fairmount City; that the occupants of the truck were seated about four and one-half feet from the front of the truck; that, passing the "stop" sign, the truck stopped at the street marker, with the front wheels about four feet from the track, while the witness took the names of the streets on the marker; that there they had a view of the track to the west for about seventy-five feet; that, seeing no traffic, they started and the truck was moving about four or five miles an hour, with its front wheels over the south rail, when he saw the approaching car about two hundred *698 feet away, traveling about fifty miles an hour; that Di Carlo and witness started to stop the truck, stopping it in about three feet, with its front wheels about up to the second rail; that Di Carlo then put the truck in reverse and the car was then about ninety feet away traveling thirty-five miles an hour, with the motorman sounding the gong; that he had heard no signals prior to that time; that when the car was sixty feet away he heard the wheels squeak and slide on the rails, indicating the application of the brakes; that the car slowed down but struck the truck after Di Carlo had succeeded in moving backward about three feet; and that the right side of the car struck the left-hand front end of the truck.
[1] The accident occurred in Illinois and the law of Illinois, the lex loci, which has been pleaded, governs the substantive rights of the litigants [Newlin v. St. Louis S.F. Railroad Co.,
[3] I. Plaintiff contends the verdict is not supported by any substantial evidence. With the burden of proving defendant's alleged negligence on plaintiff, and the jury privileged to believe or reject (even though uncontradicted and unimpeached) the testimony in whole or in part, of any witness, the contention presents a vastly different issue from that arising when an appealing defendant contends a verdict in plaintiff's favor is not supported by any substantial evidence, as, ex necessitaterei, proof of facts establishing defendant's liability by substantial evidence is a condition precedent to a legal verdict in favor of plaintiff. Accordingly, we have ruled the sufficiency of parol testimony to support a verdict in defendant's favor is not an open question in this court. [Cluck v. Abe,
[4] II. Instruction No. 8 read:
"The Court instructs the jury that the interurban railroad tracks mentioned in the evidence at their intersection with Cookson Road constituted a railroad crossing. And the Court instructs the jury that on the occasion mentioned in the evidence there was in full force and effect a statute of the State of Illinois, which provided as follows:
"`At all grade crossings at which "stop" signs are placed, a person controlling the movement of any self-propelled vehicle shall bring such vehicle to a full stop at such "stop" sign before proceeding over the railroad track.'
"And the Court instructs the jury that if you believe and find from the evidence that on the occasion mentioned in the evidence there was a `stop' sign placed alongside of said Cookson Road to the south of said railroad crossing some 5-8 feet from said crossing and in plain view of Louis Di Carlo as he drove his automobile truck northwardly toward said crossing, then and in that case the Court instructs the jury that it was the duty of Louis Di Carlo in approaching said railroad crossing and before attempting to cross over same to bring his automobile truck to a full stop at said `stop' sign. And the Court instructs the jury that if you believe and find from the evidence that Louis Di Carlo on said occasion, when approaching said crossing and said `stop' sign, did not bring his automobile truck to a full stop at said `stop' sign and before attempting to cross over said railroad tracks, then and in that case said Louis Di Carlo was guilty of contributory negligence and plaintiff is not entitled to recover herein and you will find your verdict for defendant."
Defendant pleaded the statute relied on in the instruction. [Sec. 161 of Chap. 121, Smith-Hurd Ill. R.S. 1929. Repealed: Laws of Illinois 1933, p. 957.]
(a) Plaintiff's reply alleged and plaintiff contends the statute applied only to steam railroads. The trial appears to have proceeded on the theory defendant was organized under the General Railroad Act of Illinois and was engaged in the operation of an electric interurban railway. Defendant's car involved in the collision was operating over defendant's track as a common carrier between St. Louis, Missouri, and Collinsville, Illinois, from one municipality to another and not merely from one point to another on the streets of a city. Plaintiff relies on Jeneary v. Chicago Int. Tr. Co.,
[5] (b) Plaintiff states it is admitted deceased stopped after he passed the stop sign and before proceeding on to the track. Valle so testified. However, there was testimony for defendant that the truck passed the stop sign and stopped on defendant's track.
(c) Plaintiff contends a failure of deceased to stop was not negligence as a matter of law. Decisions of the Illinois courts, cited by plaintiff, passing on facts occurring prior to 1917, or collisions involving horse-drawn cars or street cars and pedestrians, horse-drawn vehicles or automobiles, or collisions involving railroads and automobiles passing off on an issue of willful or wanton negligence do not raise any issue within the statute pleaded by defendant, which was first enacted in 1917 [Ill. Laws 1917, p. 672] and applied only to self-propelled vehicles approaching a highway-railroad grade intersection at which "stop" signs had been erected. The case of Pokora v. Wabash Ry. Co.,
(d) But for such negligence to bar a recovery for actionable negligence of a defendant it must have constituted a contributing proximate cause to plaintiff's injury. The instruction requires no such finding by the jury. Instruction No. 7 informed the jury of the effect of contributory negligence under the law of Illinois, and that if they believed "the collision . . . was directly caused . . . by any negligence" of deceased "in any particular or particulars referred to in other instructions herein, then . . . you will find your verdict for the defendant." Defendant asserts (1) the violation of the statute, if found, constituted a proximate cause of the collision following immediately thereafter and the collision was the natural and probable consequence of such violation; and (2), also, the omission from Instruction No. 8 to find the causal connection was supplied by Instruction No. 7. We consider the issue as presented by the litigants, and in so doing view the statutory requirement to stop subject to a reasonable interpretation, i.e., to stop within a reasonable distance of the sign and as embracing the due exercise of the ocular and auditory faculties to accomplish the purposes of the statute.
(1) The case is close on the issue. Plaintiff presents the testimony in narrative form. The exhibits are not before us. Defendant filed no additional abstract. Valle testified one about eight and a half feet south of the track had a view of the track to the west for about seventy-five feet, and when he was over the south rail, he saw the car approaching two hundred feet away. The motorman testified he could first see the rails on Cookson road when about two hundred feet west of the crossing. The inference from the testimony is that deceased was not familiar with the crossing and that his limit of vision west along the track decreased in proportion as his distance south of the track increased. Seated four and a half feet back of the front of the truck, there is no showing of record of the ability of deceased to have seen defendant's approaching car had the front of the truck stopped six or more feet south of the track. A pedestrian testified the truck was on the track when she heard a crossing signal. From the motorman's testimony that the truck was rolling onto the track when he first saw it, the position of the truck when he previously sounded the crossing signals is left to speculation. Another motorist, about one hundred and fifty feet north of the track, testified he "heard a whistle which drew his attention," looked up, saw the truck on the track and the car about sixty feet away. Under such showing we are not prepared to say as a matter of law that the negligence of deceased *703
in failing to stop at the sign directly contributed to the collision; for to indulge in such a conclusion as a matter of law it should clearly appear from the evidence the "stop" sign was so placed that the due observance of the statute would so effectually accomplish its purpose in the given case that reasonable and candid minds would concur in such conclusion. [See, by analogy, the reasoning in Pokora v. Wabash Ry. Co., supra.] Section 161, supra, also prohibits motor vehicles exceeding a speed of ten miles an hour upon approaching a highway-railroad grade intersection. In Crawford v. Chicago A. Railroad Co.,
We think the cases cited by defendant do not rule the issue. Some, clearly, are not in point. In Ashby v. Gravel Road Co.,
(2) Here defendant relies on Deschner v. St. Louis M.R. Railroad Co.,
Upon retrial defendant should conform the wording of the instruction to the statute, if for no other reason, to preclude unnecessary issues.
We have fully considered the many objections to defendant's instructions, each of which directed a verdict, but shall dispose of them without extended discussion.
[6] III. Instructions Nos. 5 (on the duty of deceased to look) and 6 (on the duty of deceased to listen) failed to require the jury to find that the contributory negligence set forth was the proximate cause of the collision, but, unlike Instruction No. 8, hypothesized negligent acts, which if found, as a matter of necessity must have directly contributed to the collision, and are deemed sufficient in this respect. *705
[Barr. v. Mo. Pac. Rd. Co. (Mo.), 37 S.W.2d 927, 930(8); State ex rel. v. Ellison (Mo. Banc), 208 S.W. 443, 444; King v. Wabash Railroad Co.,
[7] IV. Instructions Nos. 5 and 6, each, after hypothesizing certain facts, state "then and in that case such conduct on the part of" deceased "constituted contributory negligence on his part and plaintiff is not entitled to recover and you will find your verdict for defendant." Plaintiff asserts (a) Instruction No. 5 assumed deceased was guilty of contributory negligence, and (b) Instruction No. 6 was a positive declaration to return a verdict for defendant irrespective of any contributory negligence whatsoever.
An instruction is to be considered as a whole, and individual phrases or clauses are not to be torn from their setting and isolated and considered separate and apart from their context in construing the instruction. When this is done, we think the instructions not subject to the objections urged against them.
(a) The instruction first required the jury to find enumerated facts which constitute negligence in law. Informing the jury such facts constitute negligence is not an assumption of the existence of the premises required to be found from which the conclusion is drawn, and no purpose is served by having a jury confirm such legal conclusion by a finding that such facts constitute negligence in fact. [Oglesby v. St. Louis S.F. Railroad Co.,
(b) The return of a verdict for defendant was clearly conditioned upon the existence of the facts required to be found in the preceding clauses, phrases and words of the instruction.
[8] V. Instruction No. 5 did not place, as argued by plaintiff, an absolute duty on deceased to look (or, for that matter, to see defendant's car) but only required that he exercise ordinary care to look. The gist of the instruction was that a failure to exercise ordinary care in the particulars mentioned constituted negligence. In Illinois, as elsewhere, travelers approaching a highway grade intersection with a railroad must exercise ordinary care for their own safety. Greenwald v. Baltimore O. Railroad Co.,
VI. Plaintiff makes several contentions that instructions Nos. 5 and 6 were broader than defendant's pleading. Instructions should be within the pleadings and the evidence.
Plaintiff argues the answer charged contributory negligence in that deceased "saw and heard;" whereas Instruction No. 5 was based only on a failure to look and not a failure to look and listen. It was the duty of deceased to exercise ordinary care to look and to listen; and we interpret the answer to charge deceased with negligence in failing to see the approaching car and with negligence in failing to hear the approaching car, authorizing defendant to submit either or both charges of negligence to the jury, depending, of course, on the evidence. [Meeker v. Union El. L. P. Co.,
Any occasion for such an issue arising may be readily eliminated by charging the separate acts of negligence in separate paragraphs or otherwise so as to remove any possibility of interpreting the pleading as relying upon the concurrence of the separate acts for a single ground of negligence. Other like issues presented by plaintiff may be eliminated by amending the answer or by causing the instructions to conform with the allegations thereof and the evidence. We deem it unnecessary to rule the specific assignments.
[9] VII. Plaintiff asserts there was no evidence to support the charge (a) that the car was in sight and in dangerous proximity as deceased approached the track, or (b) that any signals were sounded *707 which should have been heard by deceased in time for him to have avoided the injury. We shall not review the evidence.
(a) We think the jury might have concluded that when the occupants of the truck's cab were eight and one-half feet from the track deceased had a view of the track for seventy-five feet to the west and the truck was stopped on the highway (if they believed that portion of witness Valle's testimony); that defendant's car was traveling about thirty miles an hour; that the truck traveled approximately eight feet; that defendant's car traveled twenty to twenty-five feet while the truck traveled the last four feet, the car slackening its speed about five miles an hour in said distance; and that while the occupants of the cab were eight and one-half feet from the crossing the car was approaching from the west and within sight.
(b) There was testimony that the crossing signals of defendant's car could be heard three-quarters of a mile; and from the testimony of the motorman and conductor, viewed in the light of the testimony of other witnesses, the crossing signals were sounded while deceased and the truck were in the vicinity of the crossing and south of the track, although their position with reference to the "stop" sign remained a matter of speculation. We think it was for the jury to say whether or not deceased could have heard, in the exercise of ordinary care, the crossing signals, if sounded.
[10] VIII. After requiring the jury to find from the evidence that crossing signals were sounded on defendant's car, Instruction No. 6 states "and if you further believe and find from the evidence that at the time said signals were sounded"
etc. Plaintiff asserts the instruction assumed crossing signals were sounded. Without adverting to other possible reasons, the instruction first required the jury to find that crossing signals had been given and, reading the instruction as a whole, the subsequent assumption of the fact previously required to be found in the instruction in connection with a further finding of facts was not such an assumption of the former fact within the law as to constitute error. [Williams v. St. Louis Pub. Serv. Co.,
[11] IX. Instruction No. 7 read:
"The court instructs the jury that the testimony in this case shows that the collision mentioned in the evidence occurred in the state of Illinois. And the court instructs the jury that the law of the state of Illinois in an action for the death of a person based upon alleged negligence is and was at the time of the collision mentioned in the evidence that plaintiff in such action can never recover if such death was directly caused in whole or in part by any contributory negligence on the part of such deceased person. Therefore, the court instructs the jury that if you believe and find from the evidence that the collision *708 mentioned in the evidence was directly caused in whole or in part by any negligence on the part of Louis Di Carlo in any particular or particulars referred to in other instructions herein, then and in that case plaintiff is not entitled to recover and you will find your verdict for the defendant."
Plaintiff's case was submitted on defendant's primary negligence only.
(a) Plaintiff claims the instruction is general and abstract. That part of the instruction following the statement of the law of contributory negligence of the State of Illinois restricted the jury's consideration of said instruction to that negligence of deceased set forth in the other instructions. Plaintiff's discussion ignores this restricted application of the instruction to the case. Instruction No. 3 in Watts v. Moussette,
(b) The last sentence of the instruction refutes plaintiff's claim that no causal connection is required to be found between the negligence of deceased and the injury. [Applebee v. Ross (Mo.), 48 S.W.2d 900, 901(4).]
(c) Plaintiff states "this instruction tells the jury that no recovery may be had if the collision was caused `in whole or in part by any negligence . . . in any particular;'" and bars a recovery for slight contributory negligence. Plaintiff's argument ignores pertinent phases of the instruction. We are not unmindful of our cases ruling erroneous instructions to the effect that if plaintiff's negligence "contributed in the slightest degree" or "in any degree" to his injuries, or the observation, quoted by plaintiff, in Menard v. Goltra,
[12] X. Plaintiff asserts reversible error in that defendant's instructions unduly repeated the fact that contributory negligence would bar recovery, and refers us to cases announcing the general rule. *709
Litigants are privileged to submit instructions covering their several properly specified allegations of action or defense when supported by substantial evidence. [St. Louis, K. N.W. Ry. Co. v. St. Louis U.S.Y. Co.,
The judgment is reversed and the cause remanded. Cooley andWesthues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.