*1 1922. MARCH TEEM, Respondent, B. v. JAMES C. MOORE, THADEUS RAILROADS, DAVIS, DIRECTOR GENERAL OF designated transportation Agent under the act during arising 1920 in Federal con cause action Bridge trol way, Appellant. Terminal Rail of St. Merchants Louis Opinion Appeals. May 2, Louis Court of St. Filed Crossing: Open Negligence: Injury Gates: Con- 1. RAILROADS: at Negligence: Jury. tributory for plaintiff, Question Where driv- truck, approached crossing provided ing an a railroad automobile operated by watehnian, gates being with on the raised a and crossing upon stop proceeded presence- his he did not but stop, although following held a truck under did hе attempting in failing cross to aetion to and contributory him stopped did when other truck convict law, negligence a under as matter circumstances jury. was one for the ease that -— Required: -: -: Care and Listen: -: Look Obstruc- injuries property personal tions: for Instructions. In an aetion arising damage collision between automobile out of a engine public crossing, truck a locomotive at a where open approach and were closed maintained jury recovery engines, authorizing if or instruction trains an train, apprоaching for an looked and listened found that exercising safety protection he was for his and that own ordinarily person prudent an careful and caution care circumstances, same or exorcise under similar was correct engine hear though approaching or an reason could not see of obstructions. Contributory Negligence: Require Failure
3. INSTRUCTIONS: Ringing: Finding Proper That Bell Was Not in View of Other In- damages by In structions. an for the driver action of an automobile injuries alleged have for been sustained a collision at truck cros'-ing, public ques- instruction railroad finding contributory require tion of which failed proper in- ringing bell was not where other ringing if the structions told bell could recover. APPEAL MISSOURI REPORTS, v. Davis.
Moore Crossing: Injury Open 4. RAILROADS: Gates: Invitation to Cross. An pro- automobile driver approaching a railroad gates operated vided with right a'watchman rely, *2 gates being up, the as cross, an invitation and he bo could charged with notice of the that the company fact railroad deuired to lower and could not do so because another truck was gates. under Omitting 5. DAMAGES: Instructions: “Reаsonable” Before “Com- pensation:” Not Reversible damages Error. for In an action for personal injuries, permitting an instruction a for such recovery jury may sum as the from compensate believe the evidence will bodily for pain anguish and mental also for such sum compensate as will him any permanent for injury, omitting word “reasonable” “compensation” before the word re- was not error. versible Damages: Permitting Recovery C. -: -: Measure of for Per- Injury: manent Not Broader Than Petition. In an action for dam- ages personal injuriеs, for instruction permitting an recovery a for bodily pain anguish any permanent and mental for injury was being erroneous as allegations petition broader than the of the only any permanent where evidence of injury to the deltoid plaintiff’s shoulder, muscle of permanent injury was al- leged petition damage. in the as an element of Damages: $4,625 -: Excessive Verdict for Not Excessive Under against In Evidence. an action company railroad a for dam- personal injuries for received a ages collision at where was to the evidence effect permanent received a injury left shoulder; atrophied his muscles were wasted; it was much lower than right, ex- and that he upon manipulation perienced great pain shoulder; and, as a result he his loft could not raise arm point, above certain ver- $4,625 not excessive. dict Appeal City Circuit Court of St. Louis.— Judge. Ferriss,
Hon. Franklin Affirmed. appellant. L.
J. Howell and
W. M. Hezel
(1)
failing*
give
The court
erred
defendant’s
requested instruction in
of demurrer to the
nature
1922.-
TERM,
chief,
plaintiff’s
(a)
at the
close
case in
gnilty
contributory negligence
Plaintiff was
as a
matter
tеstimony
under
law
his own
even if the cross-
gate
ing
up,
(1)
rely
because:
Plaintiff did not
safety
open gates
assurance of
from the
nor con-
strue such
condition as
invitation to cross. Voelker
Rys.
App.
Products Co. United
Co., 185
Paul
310;
Mo.
Rys.
App.
(2)
appears
v. United
Co., Mo.
It
testimony
ring-
bells were
ing,
according
own
his
to hear them
failure
was due,
to his own
statement,
noise made
his own truck
crossing planks.
(3)
over
being
Not
able to hear
warning signals,
being
plain-
and his view
obstructed,
duty
tiff
states, was
to so have
auto
stop
pre-
under control as to have enabled him tо
it and
vent a collision when he
see or
it so he
could
could
App.
hear.
Kelly
Underwood v.
182 Mo.
Railroad,
252;
*3
Campbell
v. Railroad,
534;
88 Mo.
v. Railroad, 175 Mo.
App.
161; Elliott v.
(4)
Railroád, 105 Mo.
523;
The
following
rule
law,
laid
therefore,
down
cases
plaintiff
contributory negligence
convicts
a matter
of law. Keele v.
258 Mo.
Laun
Railroad,
62;
v. Railroad,
Railway,
216
563;
Mo.
Schmidt v.
Moore plaintiff or hypothesizes conld not see it hear a condition engine approaching by obstructions, reason an plaintiff yet permits jury recovery if the found though approaching engine, an looked and listened for looking predi- unavailing listening under the point (4) The Authorities under cated situation. requested plaintiff’s giving instruction court erred gates, jury that (1) it advised the Because No.—: passed up time if them be at the found to through invitation tracks, them and onto part to cross over the the defendant particular though the time,
railroad tracks at placed tеstimony plaintiff’s that he no reliance own shows (2) it failed submit to invitation. Because such theory that the the defendant presence of another not because of the down gates, existing, if which, under the condition (3) one of be to create invitation. could not construed require or it did have looked Because or when to look listen conditions listened under point (5) been effective. Authorities under have requested giving erred instruc- court (Abs., 55), p. because is limited to tion No. 3 compensation permanent injury re- reasonable vague dirеctly sulting in- and is accident, contrary defendant’s instruction No. 6. definite (6) Because the verdict excessive. Naylor B.
Thomas Crews Walter for re- Davis spondent.
(1)
every
In
unless the fact
instance,
be admitted,
credibility
the matter of
weight
of the witnesses
and
given
testimony
value
to their
to be
con-
cerning
they speak,
the matter of
is
for the
though
is true
determine,
this
such evidence be
by
witnesses.
contradicted
other
Waek v. Railroad,
App.
Light
v.
175 Mo.
145
Gannon
Laclede Gas
Ill;
Co.,
(2)
Though
(a)
required
it be that one
Mo. 502.
185
TEEM, 1922.
upon
entering
look and
before
the tracks
listen
obligation,
being
seem
this
besides
reliеved of
open gates operating
ain
the fact
as
measure,
an invitation to enter and an
that no train
assurance
approaching,
having
regarded,
was
he should be
after
safely
way
found his
across
first track
into
having
second,
due care
in the
exercised
thereabout
first instance. Such is the rule established
the St.
Appeals
Supreme
Louis Court of
and the
Yonkers
Court.
App.
v.
182 Mo.
Eailroad,
558;
Eailroad,
v.
Wack
App.
App.
Mo.
Ill; Cuccio v. Eailroad
199 Mo.
Ass’n,
App.
365; Rollinson v.
203 Mo.
v.
Lusk,
Curlin
St.
31;
Montgomery
Ry.,
Br.
Louis Mer.
Ter.
232 S.
215;W.
v. Eailroad,
would not be
trying
escape,
though
as matter
of law
he erred
judgment
attempting
a matter of
to do so. Frankel
(3)
Appеllant’s
(a)
Hudson,
witness, G-irardi, fireman, testi- engine, fied “he was the west side of could gates, gate open. see as far as the and saw the He thirty away, first Mr. saw Moore’s automobile about feet away engineer when five feet he to the hollered stop; ringing that the bell after the accident as grabbed rope (4) it.” Plaintiff’s applicable instruction No. 1 states the and is law *5 REPORTS, APPEAL 210 186 MISSOURI going before and listened looked, facts. Plaintiff getting crossing, after look and listen and continued duty crossing, ordinary modified of care was by security its by defendant into which (5) plaintiff. 2. under cited had lulled Authorities law. stated the correct and instruction was Plaintiff’s (1) undoubtedly invitation relied on the Plaintiff expressly required to find (2) It cross over. up, necessary to submit the aiid that the gate. O’- under of another (3) App. Plaintiff Mo. 177. Railroad, Keefe v. entering upon only ordinary required care before to use (6) by to cross. invitation as modified the tracks correct. follows No. 3 was It instruction Plaintiff’s approved Montgomery 181 Mo. Railroad, v. instruction. (7) is not excessive. The verdict D. Di Hines, C. Plaintiff sues Walker BIGGS, charge operating Railroads, rector General Bridge Railway, per Terminal St. Louis Merchants sonal arising injuries damage property out a truck and between the automobile collision a public engine operated by defendant locomotive a stipulation By city crossing St. Louis. a Walker D. Hines court successor to this James Davis C. appearance herein entered his such director, defendant-appellant. substitutеd as public running east street Bremen avenue, thoroughfare public another street, crosses Hall west, running Hall street north and south. On operated railroad tracks six Bremen avenue were Beginning the east of these tracks with defendant. purposes they may the case as for the be numbered and six. Track No. three, four, five, numbers one, two, “team track” and termed a 6 or west track was crossing. sharply from the to the west curved crossing gate on both sides defendant maintained a operated watchman which tracks, tracks, to the eаst six tower stationed TERM, Moore Davis.
n tower watchman to the north view *6 along the tracks and to the south also east west and gates, along customary, Bremen avenue. These as was approach opened and closed on the were of trains or engines. guage, The tracks usual were standard having space eight of four feet, inches between the eight rails. There of seven or was a distance feet be- tween each track. charges August
Plaintiff that on 15, 1918,'he driving eastwardly his loaded automobile truck on Bre- approached men avenue; as he near the intersection of Hall where said tracks were street, and main- by approached tained and defendant, within to one gates, feet of said hundred then lowered, carelessly negligently said and raised or opened plaintiff by following defendant, and that waiting pass another automobile to which had been east- wardly along said Bremen avenue over said tracks, proceeded along Bremen avenue over the defendant’s doing engine negli- and tracks, gently while so a locomotive operated by the defendant ran into and struck resulting personal injuries in truck, to the plaintiff damages and to said truck. It is his further charged approaching engine view of objects, by plaintiff and that obstructed did see or approaching engine hear the as to so and avoid striking engineer him until too to so; late do that the charge engine by ordinary of said the exercise of could, plaintiff have seen care, automobile afore- striking plaintiff, said in time to have but avoided through agents negli- the defendant its and servants gently striking plain- failed to so look ahead and avоid through automobile; that the defendant said tiff’s employees operation engine its control said upon negligently ring engine, failed the bell or said give sound other manner to whistle, or in warn- ing plaintiff said movements of approach of same to Bremen avenue over which said driving. time was REPORTS, APPEAL 210 MISSOURI Davis.
Moore v. general con- denial, in addition answer negligence part plea tained a upon directly in driving the track his automobile dangerous proximity ap- to an or in front of close plea proaching engine, further and a looking without driving the track the automobile approach engine, listening when or for by listening looking have seen, or he could he could have engine in off of the time to have remained heard, said the collision. track and avoided judgment Upon a verdict for trial there was has which defendant $4,625, the sum claiming appealed, principally that its demurrer being sustained, it contended have been should *7 negli- contributory of that the evidence convicted assigned gence of Error law. is also as a matter giving is instructions, claim the the of a made and verdict excessive. years age, residing a Labadie,
Plaintiff man engaged general hauling business of the Missouri, trucking, passing time in and at the east- was wardly hogs. load over Bremen with truck avenue a going He testified: “I was east on Bremen avenue and came didn’t know these were Terminal to the tracks. I on they tracks what the and I came time, or were at when sight supposed they I two blocks west. When were gates sight I came in were down of the tracks the and stopped standing there was at the another truck and gate got waiting within for them to raise. When I gates gate feet of the or were still down and tracks, they up and other at about that this truck distance went standing right At that time I there started. was was up slowing up ready behind the truck and was and near stop. I hundred feet as the was within a truck gates opened up raised when started I this truck n my engine and on. The track was clear and the went just on and see this en- raised and I went didn’t gine string possibly it couldn’t a box-cars see coming engine up and the I behind these box-cars. couldn’t TERM, (These other box-cars were shown possibly it.” see track from the on second west been to have looking avenne.) “I of Bremen was north and to within four feet was before and I and south north truck stopped, this other was because there I standing, all until struck. see this at we I couldn’t on the south side of The passed other truck I it.. my coming engine from is, left, north, was engine going first south. I noticed and was anything. striking time to and didn’t have I do act of square get got a lick but I the track right got swipe to the south and side swerved anything square lick. don’t remember I instead walking up my until I around. was feet the crash after up right up right to the street, were box-cars up highway. The raised аs I was side of up approaching after collision.” and were until that he had testified On cross-examination quite crossing often this and knew over been that it presence tracks; railroad was knew frequent He train movements. fur- busy with in- whether the don’t know box-cars “I ther testified: my first two or three tracks. on the with view terfered moving engine think track. I on the fourth I ringing. My say heard bells that I cannot say engine rattling making won’t noise. I ringing ringing. bells I knew If bell was going I meant movements. bells that such *8 passed eight under the miles an hour as I or ten over I gates, that existed could the and under cоnditions The im- ten feet. of about a distance the automobile place avenue. pact middle of Bremen took south the constituting plank street the boards across There were practical- crossing, extended think the I the way north to the ly from across Bremen avenue the all me that was ahead was The automobile the south. of the street. middle line avenue north Bremen standing go on it truck was this around I started As passed it on I from the west and track the second APPEAL REPORTS, 210 MISSOURI v. Davis. Moore engine see on couldn’t the account side and its south spite gates and the box-cars. In this truck being up the north look to did did the I look got next to one I to the track the on south. When engine approaching not I could have the was engine the and the truck because box-cars ob- seen the my view.” structed approach Why, expecting you not the if were
“Q. any engine, you north and south? A. I look did up always the did that were do that. The fact not prevent exercising looking the caution of me from north you why the did look north Q. Well, and south. you it was safe to cross then, if felt the tracks and south up going ? A. thеse Because one across after life know it.” all the railroads he that when first saw the Plaintiff further said engine more than twelve or it have fifteen could not been that time front of his at auto- him, feet from eight than or feet from mobile point more seven was plaintiff’s testimony impact. appeared It high with about ten feet side that this other truck was long, feet that and was about fifteen at the curtains any ringing hear or didn’t bell whistle time engine. sounded plaintiff, driving who
Another witness for was_ happened on accident other truck testified track from the west and that box-cars fourth standing track Bremen avenue; second north of he the second track on which box- reached when standing north of Bremen avenue the cars were engine north; 100 feet at that time was about he engine approaching; that he because he saw given warning other not hear bell or did engine, the bell did not know whether ringing at that not. He testified that the time or eight running or miles an rate six hour, twenty-five twenty feet or after col- and ran about that he know fast lision; how did passed going see it until it as he didn’t him, *9 TERM, 1922. 191 collided with locomotive. This witnеss further testi- gates up fied that the were he started across kept seeing engine track; that the box-cars him from got point until he to a box-cars, east of the where approach he then observed because from and that north, he didn’t re- hearing warning. member bell or other gate A rule to seems be established in these well App. cases. In Yonkers v. 182 Railroad, Mo. gates l. c. it is 558, 568, thus: “The fact that the stated they open partic and that maintained, this at necessarily ular time, constituted an invitation to one upon pass and over the It trаcks. defendant’s essentially upon plaintiff, driving assurance danger approach that no need street, be feared from an ing may train. it be While true she so far duty go relieved to look listen that she could blindly upon heedlessly relying wholly the tracks, upon gates the fact that the were not closed, nevertheless regarded duty her to look and listen is to be modi as the great open fied, extent the fact that least, upon go constituted an invitation to the tracks safety doing. and as assurance so [See, also, Wack Railway, App. Swig v. Mo. 175 157 l. 192 111, 1072; S. c.W. App. art v. Lusk et Mo. al., 196 W. 138; S. 471, Strotjost Bridge v. St. Louis Terminal Merchants Rail way Company (St. Appeals), Louis Court 181 S. W. Montgomery 1082; 181 507, Mo. 79 Railroad, 477, S. App. W. 930; Lusk, Rollinson v. 203 Mo. S. 31, W. 328.] to controvert
Defendant’s counsel do not seem present application but rule, assert that it no has conclusively appear case because it is said to from the upon any rely that the did not assur- open safety gates, ance it from the nor construe as an invitation cross. it While true affirmatively open testify did not that he relied may as an invitation to we reason- cross, think placed ably be inferred that he statement APPEAL REPORTS, MISSOURI *10 Moore Davis. gates upon raised. the were the fact that some reliance gates of the feet he arrived one hundred When within stop preparations his they to he made were down and proceeded seeing he east- raised but them automobile, other, wardly following upon crossing the the and went gates it. The were to the south of truck in the rear and presence plaintiff, an the and this was in of the raised implied plaintiff it that to cross, invitation to the crossing. attempt plaintiff the the Because to was safe notwithstanding raised he the that were testified for train look both north south and listened did placed conclusively he no show does not movements, upon may open gates. It well be that not- the reliance withstanding presence, the raised in approach- plaintiff and listen for still bound to look was ing he but was unable which he testified did trains, engine by approaching reason of the box- observe the the other truck and also cars which obstructed his view passed stopped he track and which which had on the engine. away approaching its south side of the case do not think under circumstances We guilty plaintiff it contrib- could be said that attempting negligence utory in as matter law a. crossing it instance. Nor be make the can in first negligence by be said that should convicted such he stop fact when reason of the that he failed to crossing stopped. other truck had the fact that because of plaintiff nothing to indicate that knew
There on the track because of that this other truck stop approaching train. for various Automobiles plaintiff having committed himself reasons. The once continue natural should knowledge ap- an tracks, over the the absence of voluntarily proaching upon a railroad for to train, may negligence be said itself to constitute track well part authority traveler. Under the supra, referred to we other cases case, Yonker’s contributory plaintiff do think could be convicted a matter of law. Under circumstances MAECH TEEM, jury, case that one for the refusing
court did not err in sustain the defendant’s demurrer to the evidence. Atlantic [Sеe, also, Line Coast Co. v. Grubbs, 214.] Va.
Complaint is made of the main instruction recovery because it is said to authorize a event engine approaching by could not or hear an see permitted recovery reason of the obstructions, and if the found the and listened for looked approaching though looking listening train, un- availing under situation that The in- existed. requiring finding struction addition to *11 required plaintiff finding looked and listened, also a exercising safety protection for his own the ordinarily care’ person prudent and caution that an сareful exercise would under the same or similar cir- having cumstances. the In addition assurance of given safety by gates being to him reason the of raised presence, plaintiff in the his north looked both and south approaching for train and also listened before com- crossing. mitting himself to the At that time he neither approaching heard nor observed an and could not train, guilty negligence going upon be said to of be in the track having any in instance. Not the first seen nor heard being train movement at that time, assured the opening gates оf the that the was safe, justified proceeding on over the tracks. He was stop duty under no in the absence of machine, danger. knowledge or information of For him to have making crossing, while the the absence in- of danger, formation would have meant that he should danger. signal a railroad itself track, a We perceive no error instruction. main covering question No. 2
Plaintiff’s instruction the complained contributory of. What has disposes heretofore said of defendant’s been jections gates main ob- the instruction. heretofore As stated, the being up right rely a that as an charged he invitation to cross, and could not be with a, m. —13 REPORTS, APPEAL MISSOURI Davis. Moore v. to lower desired defendant
notice of the fact truck was other so because the do and could by’defendant’s evidence. indicated as was under re- have should think that the instruction Nor we do ringing. finding engine jury quired bell was not ring- that if the bell instructions told Other ing, plaintiff not recover. Plaintiff testified could it, he heard and unless not hear bell, did negligence in of his the case. not affect the against Complaint made instruction recovery is also permitted damages, for which the measure of may jury will from the evidence believe such sum as pain bodily compensate mental for compensate anguish, sum as him for such will and also they injury, any, may any permanent if find for he has reason from the suffered and believe of the evidence injury question. It is said that this instruction limit because it does not to find- erroneous is ing permitted compensation, and further because it of reasonable damages injuries recovery beyond for allegations petition. purview We do-not re- gard “reasonable” thе omission of the word before the “compensation” reversible' error. Nor do word regard we being form of the instruction as broader than petition, allegations thereby permitting a re- injuries alleged. only covery *12 injury permanent case was to the deltoid muscle permanent injury plaintiff’s which shoulder, of was al- damage. petition leged an element of in the as given By request instruction defendant’s they any damages that could allow told joint any injury the left to the of shoulder as the claim injury petition only was for deltoid in the muscle concerned. the shoulder is This far as instruction so quite the defendant on the favorable- to of was damages, inasmuch as the measure claimed petition his left shoulder was bruised in the jured, in- allegation to an that the deltoid- addition muscle permanently injured, over the shoulder there TERM, y. Taylor State ex rel. & Hartmann. although injury, permanent, showing evidence distinguished as shoulder, from the muscle deltoid
over the shoulder.
Lastly, it is asserted that the verdict is excessive. regard plaintiff’s We not so it in do view of the accepted must be as the effect true, which permanent injury that he received left shoulder incapacitated performing’ him from manual labor, occupation calling. physician which was his A testi- he found the muscles of left fied that shoulder atrophied and the left wasted; that shoulder was much right experienced great lower than the and that pain manipulation of that shoulder; that as result plaintiff could not raise his left arm above a certain point; plain- causing pain reason of the nerves attempts atrophied tiff move the arm the muscles have physician gave reason of disuse. Another similаr testimony, they opinion both testified their injury permanent. the juries In of other view minor in- it cannot be received, said that the require verdict is so excessive as to interference on our part.
As a result of herein said, what is follows that the judgment should be affirmed. foregoing opinion
PER CURIAM:—The of Biggs, adopted opinion judgment C., is as the court. The accordingly of the circuit court is affirmed. J., P. Allen, Daues, JJ., Becker and concur.
THE STATE OF MISSOURI EX REL. JOSEPH
JACKLY, Petitioner, v. A. WILSON TAYLOR and Judges HARTMANN, MOSES the Circuit Court City Respondents. Louis, St. Appeals. Opinion 6, St. Court Louis June Filed DETAINER: 1. UNLAWFUL Justices -of the Feace: Jurisdiction: *13 Equitable Remedy: Equity: Injunction. Defenses: Bill In ac-