MILDRED HOMAN v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, and CAPITOL STAGE LINES COMPANY, a Corporation, Appellants.
64 S.W. (2d) 617
Court en Banc
November 7, 1933
November 10, 1933
Although we hold that there is nothing before us for review but the record proper and adjudge the case accordingly, we have, in view of the gravity of the case and the fact that death penalties were assessed, carefully examined the bill of exceptions and the matters complained of in the untimely motion for new trial and find nothing therein that in our judgment would be ground for reversal had the motion for new trial been filed in time. Appellants appear to have been given a fair trial and the evidence, even without considering their confessions, clearly justified a finding of murder committed in the perpetration of robbery which, under the statute, is murder in the first degree. Under the evidence the jury could not well have found otherwise. The judgment of the circuit court as to each appellant must be and is affirmed. Westhues and Fitzsimmons, CC., concur.
PER CURIAM:—The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur. Date of execution of each appellant set for Friday, December 8, 1933.
The collision occurred on Christmas Day, 1928. Plaintiff and her husband got on the bus at Smithton, which is east of Sedalia, and were going to Kansas City. The bus was from one-half to three-quarters of an hour behind its scheduled time when it left Sedalia. There was evidence that the driver said he was going to get to Kansas City on time. Just west of the city limits of Sedalia No. 50
The day of the collision was clear, with the sun shining, the road dry, and not very cold. There was evidence that some of the windows in the bus were open. As the bus went west down the hill toward the crossing there were two automobiles, also traveling west, between it and the crossing. One of these (a Ford) passed the other (a Chevrolet), while ahead of the bus, and then both of them slowed down and stopped. Before reaching the crossing, both drivers became aware of the approach of the switch engine and cars, from the south, on the spur track. The driver of the Ford car, which was the nearest to the crossing, put out his arm as he stopped. The bus came down the hill behind these cars at a rate of speed estimated by most of the witnesses to be at least forty miles per hour. Some witnesses put it as high as forty-five miles per hour, but the bus driver
On the switch engine there was an engineer and a fireman. On the flat car, the leading car, was the switch foreman and a switchman. The switch foreman testified that he first realized the bus was not going to stop when it came within 100 feet of the crossing without slowing down; that at that time the north end of the flat car was only about thirty or forty feet from the center of the highway; that he then gave the engineer an emergency stop signal; and that the cars were stopped within that distance after he gave the signal. The cars were moving at from eight to ten miles per hour (some testimony put it as low as six) and there was evidence, for the railroad, that it was not possible to stop in a shorter distance than this. Plaintiff had evidence that a stop could be made, at this speed, in a much shorter distance. The engineer of the switch engine testified that he saw the bus a short time before the switch foreman signaled; that after seeing it he looked to the west on the highway; and that when he looked back he saw the switch foreman‘s stop signal. The railroad showed that regulations of the Public Service Commission required busses to stop 100 feet from all railroad crossings; and that the trainmen were familiar with this rule and had seen busses frequently stop before crossing this spur track. The bus driver, however, testified that he had lived in Sedalia for several years; that he had observed no use of the spur track except at State Fair time; and that he had never stopped for this crossing.
The evidence of eyewitnesses and others near the scene was in hopeless conflict as to whether the end of the flat car was stopped before or after it reached the center of the pavement of the highway; whether the bus was on the left or right side of the pavement when the collision occurred; whether the flat car had come to a complete stop, and was struck by the bus, or whether it was still moving and was rammed into the side of the bus; and also whether the bell on the engine was ringing and whether the whistle was sounded. The pavement was sixteen feet wide with a shoulder on the side of about eight feet. There was evidence that after the collision the flat car was as much as three-fourths of the way across the pavement. There was also evidence that it was not quite halfway across. According to some witnesses, the bus never got back on the right side of the road after passing the Ford and Chevrolet,
It was shown that the railroad had extensive railroad yards in Sedalia. The west yard limits were west of the point where the spur track left the main line and went south to the State Fairgrounds. Stockyards were maintained by the railroad at the State Fairgrounds and also at three different points in the city. The engine, pushing the cars which figured in the collision, was a switch engine and the movement was in charge of a switch foreman who had with him two switchmen. It was shown that the railroad company had the following rule (103b):
Within yard and station limits, when switching or backing a train or cars over a public crossing at grade, one of the crew must protect the crossing, unless it is protected by a flagman or gates.
The interpretation of this rule as given by a former rule instructor, a witness for the plaintiff, was as follows:
It means from that movement; and the company‘s instructions through that rule are that a man must go ahead, if there is no flagman there, and flag that crossing, stop traffic if he can, and, if
not, stop his crew before they proceed across the crossing there. He must go ahead afoot and flag the crossing.
The witness testified that the spur track was a yard track and that the rule applied to it and to the movement from the fairgrounds. The switch foreman said that the operation was a yard movement and a switching movement but that the rule did not apply to this crossing because it was not in town. He testified that his orders were to load two cars of stock at the fairgrounds stockyards and bring them in to town to be put in a train; that as he went out he left one of the switchmen at the main line, a quarter of a mile from the crossing, to see what passenger trains went by; and that they were coming back from the fairgrounds with the switch engine pushing the two loaded cars with the empty flat car in front of them. It was shown that these two cars of cattle were consigned to National Stockyards, Illinois; that farmers in the southwest part of Pettis County brought stock to the fairgrounds stockyards for shipment, and that carloads of coal and building material were taken over the spur track to the fairgrounds at various times during the year. Cars of material were also delivered there for the State Highway Department and several months prior to the accident many carloads of material for sewer construction were delivered there for the city of Sedalia. Various witnesses estimated the movements, on this spur track, from two or three times a week to almost every day, except during the weeks before and after the State Fair. The evidence of plaintiff and the bus line indicated still less frequent use. During the State Fair, the use of the track and the amount of travel on the highway being increased, a flagman was stationed at the crossing by the railroad. Highway 50 was shown to have a great deal of travel, including several bus lines. At times there were as many as 500 to 600 cars an hour over it. No regular flagman, gates, or signals were maintained at the crossing. The switchman who was left at the main line said that he stayed there to see if passenger train No. 15 went by; that he could have seen it from the crossing; but that he was not instructed to go to the crossing to flag traffic; and that the only time there was ever a flagman at the crossing was during the week of the State Fair.
The yardmaster of the railroad company testified that the fairgrounds spur track was not a yard track but a branch line and that Rule 103b did not apply because the movement was not a switching or yard movement. He also testified he gave the orders for movements on this track; that the crew was a switching crew; and that when they went from the main line onto the spur track they went out of the yard limits. The rule which he said applied to the movement was Rule 103, to-wit:
When cars are pushed by an engine, except when shifting or
making up trains in yards, a trainman must take a conspicuous position on the leading car.
The word yard is defined by the railroad rules as follows:
A system of tracks within defined limits provided for the making up of trains, storing of cars and other purposes, over which movements not authorized by time table, or train order, may be made, subject to prescribed signals and rules, or special instructions.
The movement at the time of the accident was not one authorized by time table, or train order. There was no claim that any regular time table schedule or train order applied to the spur track or any of the usual movements thereon.
The case was submitted to the jury upon instructions which authorized them to find against either or both defendants. Plaintiff had judgment against both for $35,000, and only the railroad has appealed. No question is raised as to amount of the verdict.
Appellant assigns a number of errors which it neither briefs in its points and authorities nor in its argument. They will be considered abandoned. [Burch v. C. C. C. & St. Ry. Co., 328 Mo. 59, 40 S. W. (2d) 688, l. c. 693; St. Louis v. Smith, 325 Mo. 471, 30 S. W. (2d) 729, l. c. 733; see, also, Aulgur v. Strodtman, 329 Mo. 738, 46 S. W. (2d) 172, l. c. 174.]
Appellant first contends that its demurrer to the evidence should have been sustained because it conclusively appeared that the trainmen could not have, by the exercise of ordinary care, stopped the train in time to have averted the collision after the bus entered the danger zone. This contention overlooks the fact that, in addition to submitting the case upon negligence under the humanitarian doctrine, the court also submitted it on two other charges of negligence, namely: failure to give the statutory crossing signals by either bell or whistle, and failure to send a switchman ahead of the train to protect the crossing. Since we have determined that there was evidence justifying the submission of the case, on these grounds of negligence, we will consider all of appellant‘s contentions, concerning the humanitarian doctrine, under its assignment of error striking at the instruction given on that theory of the case.
Appellant‘s next contention is that the only definition of the term negligence in any of the instructions was the one, given in plaintiff‘s Instruction 1A, authorizing the jury to find against the bus line; that this was improper as applied to appellant; that it was misleading to the jury and prejudicial to appellant. This was the only instruction authorizing a verdict against the bus line. It instructed the jury that it was the duty of the bus line to exercise the highest degree of care in the operation of said bus and that if they found the bus driver failed to exercise such high degree of care in the operation of bus or motor coach and negligently and carelessly caused or permitted said bus or motor coach to collide with
You are instructed that the term high degree of care as used in these instructions means such care as a very careful and prudent person would exercise under the same or similar circumstances and that negligence as used herein is the failure to use such care.
Appellant‘s argument is that this amounted to instructing the jury that negligence, as used in all of the instructions, was the failure to use the highest degree of care; and that the jury would understand that the railroad, as well as the bus company, were under the duty to exercise the highest degree of care, when its duty only was to use ordinary care under any of the grounds of negligence charged against it. We cannot agree with this contention. It will be noted that the definition of negligence was limited to negligence as used herein, to-wit: in this instruction; rather than therein or as used in these instructions as in the case of the definition of highest degree of care just preceding it. Plaintiff‘s instructions, on the humanitarian doctrine and the failure to protect the crossing by a flagman, used the term ordinary care and plainly informed the jury that only ordinary care was required of appellant. Appellant‘s instructions also used the term ordinary care, as applied to its duty; and it used the term negligence without asking a definition of it. The jury was also instructed at appellant‘s request that if the appellant‘s agents exercised ordinary care in an attempt to avert and prevent a collision they must find for appellant; that they must consider the issues in this case as to each defendant separately. We think that the jury was clearly informed that different degrees of care were required of the two defendants, and that they could not have been misled by the quoted part of plaintiff‘s Instruction 1A, nor failed to understand that it applies only to negligence of the bus line. Certainly, appellant cannot complain of this as error, when it used the same terms and did not ask a definition or distinction of them as applied to it. [Hobart-Lee Tie Co. v. Grodsky, 329 Mo. 706, 46 S. W. (2d) 859; Nicholson v. Franciscus, 328 Mo. 96, 40 S. W. (2d) 623; State ex rel. American School of Osteopathy v. Daues, 322 Mo. 991, 18 S. W. (2d) 487; Schlueter v. East St. Louis Connecting Ry. Co., 316 Mo. 1266, 296 S. W. 105; Block v. U. S. F. & G. Co., 316 Mo. 278, 290 S. W. 425; Monroe v. C. & A. Ry. Co., 280 Mo. 483, 219 S. W. 68; Gordon v. Park, 219 Mo. 600, 117 S. W. 1163.]
In connection with this complaint, concerning the failure to define negligence, appellant says that plaintiff‘s Instruction 2A is erroneous. This instruction submits the failure to sound the whistle or bell for the crossing. Appellant objects to the following part,
The next contention made by appellant is that there was no evidence upon which to base plaintiff‘s Instruction 3A, authorizing the jury to find against appellant, on the charge of negligence that ordinary care required that switchmen be sent ahead of the train to flag the crossing. This instruction, after hypothesizing preliminary facts concerning the spur track and crossing continued as follows:
If you further find and believe from the evidence that said highway was greatly used by the public, and if you further find and believe from the evidence in this case that the surrounding circumstances and conditions of said crossing on and prior to December 25th, 1928, rendered said railroad crossing unusually dangerous and hazardous, and that under the circumstances and conditions then existing you find and believe from the evidence that railroad management, in the exercise of ordinary care, required that the train or drag of cars operated by defendant Missouri Pacific Railroad Company, if so, should be stopped before crossing said Highway No. 50, or that someone should be sent forward to flag or protect said crossing at said place from approaching trains.
It then authorized the jury to find for the plaintiff if it failed to do these things and they directly caused or contributed to the injuries of plaintiff. Appellant contends that there was no evidence that the crossing was unusually dangerous and hazardous, but that on the contrary, it was shown to be as free from danger as any railroad crossing could be. It further contends that the portion of the instruction which authorized the jury to find that railroad management in the exercise of ordinary care required appellant to either stop the train or send someone forward to flag the crossing was beyond the scope of the pleadings; that there was no evidence upon which to base such a finding; and that the instruction gave the jury a roving commission, both, as to what was a dangerous and hazardous crossing, and as to what railroad management required.
It is well settled that there is no general duty to place watchmen or flagmen at grade crossings of public roads or highways and failure
As a general rule, it may be said that whether ordinary care or reasonable prudence requires a railroad company to keep a flagman stationed at a crossing that is especially dangerous is a question of fact for a jury to determine, under all the circumstances of the case, and that the omission to station a flagman at a dangerous crossing may be taken into account as evidence of negligence, although in some cases it has been held that it is a question of law for the court. It seems, however, that before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flagman or gates at a crossing, it must be first shown that such crossing is more than ordinarily hazardous; as, for instance, that it is in a thickly populated portion of a town or city; or that the view of the track is obstructed either by the company itself or by other objects proper in themselves; or that the crossing is a much traveled one, and the noise of approaching trains is rendered indistinct and the ordinary signals difficult to be heard, by reason of bustle and confusion incident to railway or other business; or by reason of some such like cause; and that a jury would not be warranted in saying that a railroad company should maintain those extra precautions at ordinary crossings in the country.
. . . In a crossing within a city, or where the travel is great, reasonable care would require a flagman constantly at the crossing, or gates or bars, so as to prevent injury; but such care would not be required at a crossing in the country, where but few persons passed each day. The usual signal, such as ringing the bell and blowing the whistle,
would be sufficient.
[Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 36 L. Ed. 485, 12 Sup. Ct. 679, 12 Am. Neg. Cas. 659.]
So it has also been said:
Whether or not any given state of facts describing the surroundings of any particular crossing are such as to mark such crossing as one attended with unusual danger or extraordinary hazard is a question solely for the determination of the jury, unless only one conclusion could be drawn therefrom by all reasonable minds.
[Tisdale v. Sante Fe Railroad Co. (Tex.), 228 S. W. 133, 16 A. L. R. 1264.]
Likewise, Ruling Case Law says:
If a railroad crossing is especially dangerous to travelers, on account of its locality or mode of construction, or because the track is curved or the view obstructed, the railroad company must exercise such care and take such precautions as the dangerous nature of the crossing requires, and failing in this, is guilty of negligence. In other words, if a railroad company, in the management of its business, causes unusual peril to travelers, it must meet such peril with unusual precautions, and failing in this is guilty of negligence. This rule is particularly applicable where the traveler‘s view of approaching trains at a crossing is so obstructed that they cannot be seen until close to the track. In such a case it becomes the duty of the railroad company to use extra caution to avoid collision, as by a less amount of speed, or by increased warnings or otherwise; or if an unslackened speed is desirable, by keeping a watchman on duty, or some other sufficient means of warning travelers.
[22 R. C. L. 990, sec. 217.]
In light of these authorities and the evidence in this case that there was an obstruction of the view at the crossing, by the contour of the field, the embankments, the weeds and fences; that the track was a switch track not used by regular trains; and that there was a very great amount of travel on the highway, we hold it was proper to permit the jury to pass upon the question of whether the crossing was so unusually dangerous and hazardous as to require the railroad to do something more to warn travelers, of the approach of switch engines and cars, than to merely give the statutory crossing signals. Likewise, in view of the railroad company‘s rule, requiring a member of a switching crew to flag grade crossings, when yard switching movements were being made; in view of the conflicting evidence as to whether or not this was a yard movement; in view of the considerable amount of material and livestock handled by switching crews between the Sedalia station and the State Fairgrounds; and in view of the fact that one of the switchmen was left to await the return of the switch engine and cars, within a quarter of a mile of this crossing, with nothing to do except to sit around and observe whether or not a particular passenger train passed on the main line; we hold
We next come to the question of whether the case was properly submitted upon the humanitarian doctrine. We think it was. Appellant‘s contention is: First, that the court was not justified in submitting the case upon the humanitarian doctrine at all, because it conclusively appeared that the cars could not have been, by the exercise of ordinary care, stopped, in time to have averted the collision, after the bus entered the danger zone; second, that the instruction submitting it was improper, because it combined primary negligence with the humanitarian doctrine, was misleading and failed to take into account the failure of the bus driver to stop for the crossing. This court has said concerning the function of the court and jury in humanitarian cases:
If a given case in that regard is so plain that average, fair-minded men cannot reasonably differ about it, a recovery may be denied as a matter of law. . . . But if there is a ground for fair difference of opinion about it, then the question is for the jury.
[Ellis v. Met. St. Ry. Co., 234 Mo. 657, 138 S. W. 23; Logan v. C. B. & Q. Railroad Co., 300 Mo. 611, 254 S. W. 705.] We hold that there is ground for difference of opinion about it in this case.
Appellant‘s argument is upon the theory that the engineer stopped, as soon as he could have stopped, after he got the stop signal from the switch foreman. Assuming that is true (although there was evidence that the engineer said, after the accident, that when he first saw the switch foreman signaling he did not know whether he was signaling to him or waving to someone on the highway), that does not settle the matter. The evidence showed, and the engineer testified, that he could have seen the bus at any time after it came over the crest of the ridge, 500 feet from the crossing. His testimony was that he did see it; that after he saw it he turned away from it and looked in the other direction; and that when he looked back he got the signal from the switchman. The evidence showed that the bus came all the way down the hill and onto the crossing without ever slackening its speed and with its horn blowing all the time.
Appellant‘s argument, however, is based upon the time it took for the switch foreman to signal the engineer and the engineer to, thereafter, stop: It overlooks the fact that the evidence shows that the bus, with the horn blowing and with unslackened speed, was preparing to pass the other automobiles before it got 100 feet from the crossing. The duty of the trainmen did not, as a matter of law, commence only after the bus entered the 100-foot zone. It commenced at such time as they saw or could have seen, by the exercise of ordinary care, that the driver of the bus was intent on pursuing his journey across the track, oblivious to the danger. Appellant‘s argument also overlooks the fact that it was the duty of the engineer, as well as the switch foreman, to look out for the bus, or any other vehicles on the highway. He was operating the switch engine and had the means of stopping at hand. If he saw or could have seen, by the exercise of ordinary care, that the bus driver, oblivious to the danger, was intent on pursuing his journey across the track, it was his duty to act, without waiting for anyone else to tell him to act. From his own testimony, the jury were justified in believing that he was negligent in taking his eyes off of the bus when he saw it speeding toward the crossing; that he looked away too long; and that, by the exercise of ordinary care, he could have observed the bus coming into a place of danger in time to have stopped the cars and avoided the collision.
We fail to find any error in plaintiff‘s Instruction 4A submitting this issue. Antecedent negligence cannot be considered in determining liability under the humanitarian doctrine. When such peril arises the doctrine seizes upon the situation as it then exists and requires the one operating the dangerous instrumentality to exercise ordinary care in certain respects to make timely discovery of the peril, if it was his duty to be on the lookout, and thereafter to avoid the infliction of the threatened injury, if he can do so with the means at hand and without jeopardizing the safety of himself and others. [Alexander v. St. Louis-San Francisco Ry. Co., 327 Mo. 1012, 38 S. W. (2d) 1023; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S. W. (2d) 798; Vowels v. Mo. Pac. Ry. Co., 320 Mo. 34, 8 S. W. (2d) 7; Banks v. Morris & Co., 302 Mo. 254, 257 S. W. 482; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S. W. 1014; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720, 94 S. W. 967.] Plaintiff‘s Instruction 4A required the finding of these necessary elements.
Furthermore, no negligence of the bus driver could be imputed to plaintiff, a passenger, to bar her recovery under any of the charges of negligence. [Smith v. St. Louis-San Francisco Ry. Co., 321 Mo. 105, 9 S. W. (2d) 939; Montague v. M. & K. Interurban Ry. Co., 305 Mo. 269, 264 S. W. 813; Treadway v. United Rys. Co., 300 Mo. 156, 253 S. W. 1037; Becke v. Mo. Pac. Ry. Co., 102 Mo. 544, 13 S. W. 1053, 9 L. R. A. 157.]
Appellant further contends that the court erred in refusing to permit expert automobile repair men to give opinions, from an examination of the bus and flat car, as to the position of the bus and the flat car at the time of the collision. Appellant had a number of eyewitnesses who testified that the position of the bus, at the time of the collision, was exactly what appellant‘s offer of proof showed the opinion of these experts would be. Even if this was admissible, with such an abundance of direct evidence of what happened, it would not be prejudicial error to exclude these opinions. [Irwin v. St. Louis & San Francisco Ry. Co., 325 Mo. 1019, 30 S. W. (2d) 56; Gilchrist v. Kansas City Rys. Co., 254 S. W. 161.] Appellant‘s experts were permitted to tell what the injuries to the bus were and photographs of the bus and flat car were introduced. But, although other witnesses testified that the bus was not, when the collision occurred, in the position appellant‘s witnesses said it was, we do not think that the matter required expert testimony. The nature and location of damage to the bus and flat car and their relative positions at the moment of the collision were not matters of an unusual, complicated or technical nature.
One test of whether opinions of experts should be received is whether the court or jury will be aided by receiving the evidence. [22 C. J. 642, sec. 736.] The necessity for such testimony arises where the subject matter of an inquiry is so far removed from the realm of common experience that the ordinary jury, even when the facts are fully placed before them, cannot fairly be expected to draw a correct inference therefrom, and at the same time no person competent to draw such an inference has personal knowledge of the facts. [22 C. J. 639, sec. 733; see, also, 11 R. C. L. 572, sec. 7; Muff v. Wabash Ry. Co., 22 Mo. App. 584; Dammann v. St. Louis, 152 Mo. 186, 53 S. W. 932; Benjamin v. Met. Street Ry. Co., 133 Mo. 274, 32 S. W. 590; Winters v. Hannibal & St. Joseph Ry. Co., 39 Mo. 468; Gage v. St. Louis Transit Co., 211 Mo. 139, 109 S. W. 13.]
Appellant relies upon Patrick v. Steamboat J. Q. Adams, 19 Mo. 73, where there was a collision between two steamboats. A passenger who was not an eyewitness was allowed to state the shape of the fracture made in the Shelby by the defendant‘s bow, and the im-
Appellant briefs no further assignments of error in its points and authorities. In its argument, however, it complains of the action of the court in excluding the answer of the bus line, filed in proceedings before the Public Service Commission, in which it stated that it had instructed all of its drivers to stop within 100 feet of all railroad crossings and that it had discharged the driver of this bus. Appellant likewise complains, in its argument, of instructions, given at the request of the bus line, which it says in effect excused the bus driver on account of his failure to stop. These matters, if error at all, were error in favor of appellant‘s codefendant. It therefore cannot complain, especially since the jury also found a verdict against the codefendant. [Maher v. Donk Bros. Coal & Coke Co., 323 Mo. 799, 20 S. W. (2d) 888; Leighton v. Davis, 260 S. W. 986; Beal v. C. B. & Q. Ry. Co., 285 S. W. 482; Brickell v. Fleming, 281 S. W. 951; Clark v. St. Louis & Suburban Ry. Co., 234 Mo. 396, 137 S. W. 583; Beave v. St. Louis Transit Co., 212 Mo. 331, 111 S. W. 52.]
Finally, in its argument only, appellant makes complaint of the trial court refusing several instructions offered by it. Why this is error, is not pointed out, except by the general statement that they properly declare the law. We find, however, that, insofar as they did properly declare the law, such matters were fully covered by the instructions which the court gave. The case was well and fairly tried.
The judgment is affirmed.
PER CURIAM:—The foregoing opinion by HYDE, C., in Division One is adopted as the opinion of the Court en Banc. Gantt, C. J., Atwood, Ellison and Frank, JJ., concur; Leedy and Hays, JJ., concur in result; Tipton, J., not sitting.
HYDE, C.