249 S.W. 644 | Mo. | 1923
Lead Opinion
This is an action for damages for injuries sustained by plaintiff when his automobile was struck and demolished by one of defendant's passenger trains at the crossing of Pine Street in the village of Laddonia, Audrain County, Missouri, on July 17, 1913, Two juries disagreed. On the third trial the verdict was for the defendants. On appeal this was reversed and a new trial ordered. See opinion in
The railroad runs from east to west through the village. The station is on the north side of the main track, and east of Pine Street, which runs north and south through the village. There is a switch or siding on the south side of the main track, which siding is about one-half mile long. Front Street is on the south side of the right of way. There are structures, buildings and trees on the south side of the siding, which obstruct the view to the east as one approaches Pine Street crossing from the south.
Plaintiff, a physician, had lived in Laddonia some years, having a drug store and office about one block *639 east of Pine Street crossing and south of defendant's station. He was familiar with the surroundings and knew the schedules of defendant's trains. He testified "there was a regular mail train that came through every morning, one mail train, and I presume this was the same train." He did a general practice in the country and often drove his automobile over this crossing and knew of the obstructions referred to. On the morning of the accident he drove his car westward on Front Street, and turned to the north to cross the railroad on Pine Street. He testified that the derail was about twenty or thirty feet from the middle of the street, and that he drove within twenty-five feet of the box cars; that he looked attentively both east and west; could see no train coming from the west; "and my attention was all directed to the east, being obstructed by those box cars, and there was no crossing bell ringing and I suppose that everything was clear and I ventured on across the C. A. crossing."
"Q. Now, after getting far enough north so that your line of vision would clear the box cars where was the front wheels of your car? A. Well, when I got up so I could see diagonally across the end of this box car that was standing at the derail I could see down the main line something like 100 or 150 feet, and at that time my front wheels of the automobile were practically on the south rail of the main tract. . . .
"Q. And what gear were you running in? A. Intermediate speed.
"Q. About what rate of speed did you cross there? A. About four miles an hour.
"Q. Now, when you got so that your line of vision cleared the cars did you see any approaching engine or train? A. After I got in the position just stated, why, about 100 or 150 feet I saw this engine coming, yes sir.
"Q. And your car was then where with reference to the rails upon which this engine was running? A. The front wheels were on or about the south rail of this main track on which this train was coming.
"Q. Now, prior to that time had you heard anything *640 of any train coming from the east or west? A. I never heard a thing, no, sir.
"Q. Had you been able to see anything prior to that time, any train coming from the east. A. No, sir, I could not. . . .
"Q. What did you attempt to do? A. I tried to go forward. Increased the speed of my car, and tried to get off the track as quick as possible.
"Q. Could you back as quick as you could go forward, and clear the track? A. No, sir. I would have had to have reversed my gears and I figured I could come nearer getting across the track by going ahead than by backing up.
"Q. Well, did you get by? A. Except the rear of the car.
"Q. The part you were sitting in? A. Yes, sir; it missed my back about something like eighteen or twenty inches I should judge.
"Q. And struck what part of your car? A. Tore the entire rear end out. Struck about right at the hub of the right hind wheel, and just tore the entire rear end out, top and all.
"Q. Then if you had been able to move some two or four feet farther you would have cleared the track? A. Yes, I think two feet would have cleared me possibly."
On cross-examination plaintiff was asked as to his testimony on a former trial of the case at Fayette, defendant's counsel reading certain questions and answers thereto by plaintiff from plaintiff's abstract of the record on the first appeal;
"MR. MILLER: I will go back here and get the connection, at the bottom of page 247 (reading); I will ask you if over at Fayette you didn't testify — I will ask you if these questions were asked you and these answers given at that time, taking depositions: `Did you observe the approach of this train?" and the answer, `No, sir.' `Didn't see it at all?' and the answer, `No, sir.' `Never *641 did see it?' and the answer, `No, sir." Did you answer those questions that way, Doctor? A. I don't remember.
"Q. Over at Fayette.
"MR. CULLEN: We object to that. . . .
"THE COURT: As the court understands the examination now, the question is predicated upon the abstract of record that went to the Supreme Court in this case?
"MR. MILLER: Yes, sir.
"THE COURT: And appertaining to testimony given in another trial of this case? . . .
"MR. CULLEN: Now, another reason. He has never asked him about the train. He has asked him about remembering where he was going, and then he switches.
"THE COURT: It is disconnected from his last examination, that is true. Now, what statement do you contend that this witness has made that is contradictory to the statement there.
"MR. MILLER: He testified that he drove up there to the track and, as I understand, he looked down the track and he saw the train 100 or 150 feet east of the crossing. Now, I propose to show that he testified over at Fayette that he never did see the train until it struck him.
"THE COURT: Objection as to this particular question overruled.
"MR. MILLER: Q. Didn't you answer that question that way over at Fayette? A. I don't remember of answering it that way.
"Q. Is that the best answer you can make to the jury; you don't remember of answering it that way? A. I don't remember of answering that question that way. I absolutely saw the train before it struck me, 100 or 150 feet away.
"Q. Don't you know that after you dismissed the case over there and brought it back here you proceeded upon a different theory? A. I don't know that I did.
"Q. And then is when, for the first time, you said that you saw the train 100 to 150 feet before it got to the *642 crossing? A. I did see it 100 or 150 feet away before it struck me, there is no question about it. . . .
"Q. Reading further —
"MR. CULLEN: What page is that?
"MR. MILLER: 248. I will go on further: Q. `Did you testify now that you heard no bell at that time?' And the answer, `Yes, sir; no bell.' `Now, did you observe the approach of this train?' And the answer, `No, sir.' `Is that correct?' And you gave the answer, `I don't remember?' A. I don't remember how I testified at Fayette, Mr. Miller. Whatever I testified was the best of my recollection."
When defendants were offering their testimony, the following occurred.
"MR. MILLER: I want to read from Doctor Monroe's testimony over at Fayette, record —
"MR. CULLEN: Wait a minute. We object to that statement. You will not read from Doctor Monroe's testimony at Fayette.
"THE COURT: Do you mean at the trial here?
"MR. MILLER: Yes, sir, as to his interrogation as to what he testified over at Fayette.
"THE COURT: Proceed.
"MR. MILLER: I will ask you if over at Fayette you didn't testify — I will ask you if these questions were asked you and these answers given at that time. Page 247: `Did you observe the approach of this train?' and the answer, `No, sir.' `Didn't see it at all?' And the answer, `No, sir.' Did you answer those questions that way? A. I don't remember. Q. Would you say that you did not? A. I wouldn't say I did or I wouldn't say I did not. It has been so long. Q. If you did answer it that way it is correct? A. I don't think I answered it that way. Q. Well, your attorneys have a copy of the transcript there? A. I may have answered it that way and I may not. I don't remember. Q. I will go on further: `Did you testify now that you heard no bell at that time?' And the answer, `Yes, sir; no bell.' `Now, did you observe the approach of this *643 train?' And the answer, `No. sir.' Is that correct? A. I don't remember. Q. What? A. I don't remember."
I. Appellants complain of improper remarks by plaintiff's counsel in his closing argument to the jury. The record reads:
"MR. CULLEN: I am talking about a situation that results necessarily from rapid running without giving notice. You know it. You know it is true, as certain as daylight. You see that street over there. That is but a public street, men come and go. Now, you start an automobile down that street, I don'tArgument care whether it is giving signals or not, but you startto Jury. an automobile down that street going at the rate of over sixty miles an hour, and what do you expect and what would those who are on the side expect? Why you would say at once that is dangerous to life and limb, wouldn't you? Everybody would say that. We all know it. Human experience shows it. And as a result of that the law, made to protect everybody, says that those death-dealing and heavy instruments that run upon settled tracks shall move, when they move where people do congregate, at a rate of speed so that they will not leave the injured in the wake of their tracks. That is what that law means, and all it means. Now, I said in the beginning, gentlemen, that every man had a right to his form, his strength, his lungs, and his hands and his legs, unless by its own act he forfeits it. I go a step farther: No man, no corporation, no individual beneath the shining sun, it matters not what impress necessity may employ them, has any right to openly and flagrantly violate the law and when they have violated the law and as a result of that violation the mangled form of citizens is strewn upon their tracks to come before a jury of their country —
"MR. MILLER: We except to that argument as improper and not legitimate argument and ask the court to rule upon it.
"THE COURT: The objection is overruled. . . . *644
"MR. MILLER: We except.
"MR. CULLEN (continuing): come before their fellow-citizens and say, `Yes, I have violated the law, I spit upon them, I violated them not once but five times over, and what are you going to do about it?'
"MR. MILLER: We object to that argument as not proper argument.
"THE COURT: Overruled.
"Defendants except."
"Trials before juries ought to be conducted with dignity and in such a manner as to bring about a verdict based solely on law and the facts. Hence reckless assertions unwarranted by the proof and intended to arouse hatred or prejudice against a litigant or the witnesses, are condemned as tending to cause a miscarriage of justice." [Beck v. Railroad,
It is apparent the remarks complained of, which had the sanction of the court, were not calculated to throw any light on the litigated issues, nor were they of the quality or character to aid the jury in a dispassionate consideration of the case. On the contrary, they were intemperate and inflammatory and well calculated to arouse the passions and prejudices of the jury. Two juries had disagreed; one had found a verdict for the defendant. The verdict in this instance was signed by ten jurors. The learned trial court should have sustained the objections to the remarks complained of and admonished the jury to disregard them.
II. On the trial at Fayette, plaintiff testified he never saw the train until it struck his automobile; in other words, it was like a bolt from a clear sky. In the opinion of this court on the first appeal, in stating the facts, it is said: "Plaintiff did not commit himself to the crossing until theFalse Testimony. front of his car was very near the track, and then only when he saw no approaching train and saw enough of the track to make it clear beyond doubt that a train running *645
at anything like ordinance speed could not reach the crossing before he had passed safely over it." [280 Mo. l.c. 495.] On the last trial, after his attention was called to his testimony at Fayette, he repeatedly testified he saw the train at a distance of 100 to 150 feet. These statements are unexplained, bald contradictions on a vital point. It was shown beyond question by witnesses for both parties that one on the main track at the crossing had an unobstructed view to the east and could have seen a train for at least four miles. Plaintiff's testimony on one or the other occasion was obviously false and has no probative value. In Steele v. Railroad,
"Neither an attorney nor his client, the litigant, ought to be allowed to play fast-and-loose with courts. If the trial of a lawsuit is for the purpose of ascertaining the truth and applying the law to that truth, so that the judgment which the law gives upon a certain state of facts may be rendered in the cause, it would be lamentable indeed if a brazen lack of candor should in the hands of fair and just men stamp the alleged truth found as being frankly suspicious. Courts are, in theory at least, forums established for the discovery and determination of the ultimate facts; so they ought not to be used as hotbeds for the germination and promotion of perjury. No litigant in his own sole case ought to be heard by a court, without some explanation or excuse, to deny to-day what he solemnly swore was true on yesterday. This excuse (surely as to diametrically contradictory testimony given in the same trial of the same case) ought to be sufficient as a matter of logic and of law to raise a debatable question in the minds of reasonable and disinterested men. When such explanation of mistake or oversight or ignorance or misunderstanding or inadvertence or illness affecting memory, comes in, clearly the rule is, as we have seen, that the party-witness is not concluded and the jury may resolve the truth of the case. . . .
"But when no explanation or excuse for the variance *646 is given, as in the instant case, the matter of the probative effect of such bald contradictions ought to be left to the court to be passed upon as a matter of law. What in such case is there for a jury to pass on?"
Defendant's demurrer to the evidence should have been sustained.
III. We have set out plaintiff's testimony on the last trial as to how the collision occurred. He knew the train that struck his automobile was a fast-mail train that made no stop at Laddonia. He knew that neither that train nor any otherContributory fast through train observed the eight-mileNegligence: ordinance. He knew of the freight cars at theFailure to derail on the siding and other obstructions toStop and Look. his view of a train from the east. He testified that he drove across the siding and when the front wheels of his automobile were practically on the south rail of the main track, he first saw the train at a distance of 100 to 150 feet.
In Kelsay v. Mo. Pac. Ry. Co.,
"The duty of a traveler upon a highway, in approaching a railroad crossing, to use all reasonable precautions to ascertain the approach of trains and to avoid injury by them, is well settled law, not only in this court, but perhaps in all the courts of this country. This rule imperatively requires him to look carefully, in both directions, at a convenient distance from the crossing, before venturing upon it, if, by looking, a train could be seen. The duty will not be performed by attempting to look from a point at which the view is obstructed. The duty is a continuing one until the crossing is reached. If there is a point between the obstruction and the track which gives opportunity to see, it is the duty of the traveler to look. He can not close his eyes and thereby relieve himself of the consequence of his own neglect. [Hayden v. Railroad,
The Kelsay Case has been frequently cited with approval on this proposition. [Evans v. Ill. Cent. Ry. Co., 233 S.W. 397, 399 (1); Hale v. St. Joseph Ry. Co.,
IV. Plaintiff pleads that the train ran in excess of the ordinance speed of eight miles an hour and the failure to give the statutory signals, but does not plead the failure of the automatic crossing bell to function. There is no evidence that plaintiff relied upon on any signals or thatExcessive Speed: the train would be run in accordance with theNo Signals. ordinance speed. [Mockowik v. Railroad,
In Weller v. Railway Co.,
"In treating the question of the duty of a traveler to look and listen before attempting to cross the track of a railway, and the legal effect of a failure to perform *649
his duty in that respect, Beach in his work on Contributory Negligence (2 Ed.), Section 180, reaches the following conclusion: `In the progress of the law in this behalf, the question of care at railway crossings as affecting the traveler, is no longer, as a rule, a question for the jury. The quantum
of care is exactly prescribed as matter of law.' If it appear from the evidence that the traveler did look or listen, or both, then it becomes a question for the jury to determine, considering the situation, the duty of the railroad company, and all the facts and circumstances in evidence, whether the precautions taken were reasonable. There are cases, also, in which one going upon a railroad track may show himself or be shown to have been so heedless of known danger as to preclude a recovery as a matter of law for injuries received through his own recklessness. In such case he assumes the risk of injury. These principles are established by numerous decisions of this court. [Zimmerman v. Railroad,
Syllabus 2 in Henze v. Railroad,
"In an action against a railroad company for the killing of plaintiff's husband and infant son at a public crossing, the testimony of plaintiff's witnesses showed that the deceased was driving, in a two-horse wagon, at a slow walk, along a highway, which crossed the railroad, when they were run over and killed by a train; and that the train was an extra, not running on regular time. The witnesses were not agreed as to whether the husband could have seen the train as he approached the crossing, but their testimony showed that while no bell was rung or whistle sounded, the train made plenty of noise, and the deceased could have heard it, if he had stopped and listened; that he did not stop to look or listen or take any other precaution to avoid danger; that as he approached the track he was holding the lines loosely in his hands, *650 apparently taking no notice of anything; that the railway was dry and hard, and the rattling of the wagon interfered with the sound of the train. Held, that a demurrer to the evidence was well taken and should have been sustained."
In Laun v. Railroad,
"`It is a settled law of this State that a person who goes upon a railroad track or proposes to cross it, must use his eyes and ears to avoid injury. And while a neglect of the regulations in regard to the running of trains amounts to negligence in law on the part of the railway company, this does not absolve pedestrians and others who propose to cross the tracks from the exercise of ordinary care. Every intelligent person who has arrived at years of discretion is presumed to know that it is dangerous to be upon a railroad track when trains are passing to and fro, and when crossing one, he is expected to be vigilant and watchful of the approach of the locomotive. The failure to exercise such vigilance is negligence per se. [Harlan v. Railroad,
"`The law that a traveler, before entering upon a railroad track, must observe some caution for his own safety, and that a failure to do so will be such negligence as will preclude a recovery in case of injury, is as well settled in this State as is the law that a railroad company is guilty of negligence in running a train without observing the reasonable precaution required by law or ordinance. The measure of precaution to be observed by a traveler depends often upon the circumstances and surroundings. The general rule is that in knowingly approaching the track of a railroad, he must use his sense of sight or hearing to ascertain if there be danger. If the view is so obstructed that he cannot see, he should carefully listen. The circumstances may not require that he both look and listen, but common prudence requires that he do either one or the other and a failure to do so renders his act negligence in law. The rule of contributory negligence is not changed or abrogated by *651
reason of a statute or ordinance imposing the duty on account of the violation of which the injury resulted. [Weller v. Railroad,
"To the same effect are the recent cases of Holland v. Railroad,
In the Stotler Case, supra, the fatal accident occurred at Pine Street crossing in Laddonia. The train was running at a high rate of speed in violation of the ordinance and without sounding the bell or whistle. On page 637, FOX, J., said:
"In Boring v. Railroad,
"On Reno v. Railroad,
The learned judge then quoted from the Kelsay Case approvingly.
V. Many witnesses, including several of plaintiff's witnesses, testified that they heard the train signals. Plaintiff testified that he looked alternatively to the east and to the west, but it was impossible for him to have looked to the east until he could see beyond the freight cars that obstructed hisHeedless of view. The noise made by plaintiff's car wouldDanger. interfere with his hearing the train. His evidence clearly shows that he neither stopped, looked nor listened, but drove heedlessly upon the crossing, and that he did not look to the east until the front wheels of his car were on the south rail of the track. He exercised no diligence to discover the approach of the train but drove recklessly upon the crossing and assumed the risk of injury. In such circumstances, plaintiff's contributory negligence was not a question for the jury, but as a matter of law, was for the court. [Tannehill v. Railway,
In Burge v. Railroad,
"It is clear from the statement of facts that the deceased was guilty of negligence as a matter of law. A railroad crossing is within itself a signal of danger. The law imposes upon the traveler the duty of exercising caution at such places. He must make some effort to find out if there is an approaching train before he drives upon the tracks. He can close neither his eyes nor his ears. The means of self-protection given him must be used. A failure so to do constitutes negligence. In this case witnesses more unfavorably located than was deceased heard the `roar' of the approaching train. What *653
the witnesses heard the deceased could have heard had he been in the exercise of due care. What they saw he could have seen by the exercise of due care. The fact that they heard the approaching train is conclusive that he was not exercising his sense of hearing to determine whether or not there was an approaching train. The fact that the train could have been seen 900 or more feet east of the crossing shows that he was not exercising his sense of sight. There is no room for the presumption of due care in this case. Such presumption is a presumption of fact, and upon the appearance of the facts in evidence the presumption takes flight, and no longer has a place in the case. [Higgins v. Railroad,
VI. In State ex rel. Hines v. Bland, 237 S.W. 1018, 1020, GRAVES, J., said: "There may be such surrounding facts as not only to require the approaching traveler to both look and listen, but to actually stop before venturing upon a crossing." The opinion then quotes approvingly from the Kelsay and Hayden cases, cited, supra. See also Stepp v. Railway, 85 Mo.Looking and 229; Evans v. I.C. Ry. Co., 233 S.W. 397, 399;Listening not Tannehill v. Railroad, supra; Benner v. Railroad,Enough.
Looking where plaintiff could not see, listening while other noises prevented his hearing, were futile. It is no more the exercise of ordinary care to look and listen when and where looking and listening are useless, than it is to fail to look and listen where looking and listening are effective. [C.G.W. Ry. Co. v. Biwer, 266 F. 965.]
VII. But our statute (Laws 1911, p. 330, par. 9, sec. 12), enacted in the interest of human life, establishes the rule, applicable to this case, of the highest degree of care that a very careful person would use under like circumstances. "It contemplates a rule of conduct for *654
automobile drivers upon public roads,Driving Automobile. streets, avenues, alleys, highways or places much used for travel. That rule of conduct is to use the highest degree of care." [Threadgill v. United Ry. Co.,
VIII. It is insisted, however, that there being no material change in the evidence, the decision on the first appeal constitutes the law of the case and should be followed. [Baker v. Railroad,
The judgment is reversed. *655
Concurrence Opinion
I concur in the result of this opinion, but not for the reasons stated therein. I fully recall the Steele Case, but it is not authority here. In that case the two statements were made at the same trial, and that was the matter discussed by Judge FARIS. It was a much discussed opinion at the time, and certainly goes as far as we should go. It suffices to say that it does not go far enough to be effective in any case where the two statements occur at different trials.
Addendum
The foregoing opinion of HIGBEE, C., is adopted as the decision of Court in Banc. David E. Blair and Walker, JJ., concur;Woodson, C.J., and Graves, J., dissent as to Paragraph II of the opinion, but concur in the result reached in the other paragraphs James T. Blair, Ragland and White, JJ., dissent.
