THADEUS B. MOORE, Respondent, v. JAMES C. DAVIS, DIRECTOR GENERAL OF RAILROADS, Agent designated under the transportation act of 1920 in cause of action arising during Federal control of St. Louis Merchants Bridge Terminal Railway, Appellant.
St. Louis Court of Appeals
Opinion Filed May 2, 1922.
210 Mo. App. 181 | 241 S.W. 445
RAILROADS: Injury at Crossing: Open Gates: Negligence: Contributory Negligence: Question for the Jury. Where plaintiff, driving an automobile truck, approached a railroad crossing provided with gates operated by a watchman, and on the gates being raised in his presence he did not stop but proceeded upon the crossing although a truck which he was following did stop, held under the evidence his action in attempting to cross аnd in failing to stop when the other truck stopped did not convict him of contributory negligence as a matter of law, and under the circumstances of the case that question was one for the jury. - ——: ——: ——: Care Required: Look and Listen: Obstructions: Instructions. In an action for personal injuries and property damage arising out of a collision between plaintiff‘s automobile truck and a locomotive engine at a public crossing, where gates were maintained and were open and closed upon the approach of trains or engines, an instruction authorizing a recovеry if the jury found that plaintiff looked and listened for an approaching train, and that he was exercising for his own safety and protection the care and caution that an ordinarily careful and prudent person would exercise under the same or similar circumstances, was correct though he could not see or hear an engine approaching by reason of obstructions.
- INSTRUCTIONS: Contributory Negligence: Failure to Require Finding That Bell Was Not Ringing: Proper in View of Other Instructions. In an action for damages by the driver of an automobile truck for injuries alleged to have been sustained in a collision at a public railroad crossing, an instruction for plaintiff on the question of contributory negligence which failed to require a finding that the engine bell was not ringing was proper where other instructions told the jury that if the bell was ringing plaintiff could not recover.
RAILROADS: Injury at Crossing: Open Gates: Invitation to Cross. An automobile truck driver approaching a railroad crossing provided with gates operated by a watchman had a right to rely, on the gates being up, as an invitation to cross, and he could not be charged with notice of the fact that the railroad company desirеd to lower the gates and could not do so because another truck was under the gates. - DAMAGES: Instructions: Omitting “Reasonable” Before “Compensation:” Not Reversible Error. In an action for damages for personal injuries, an instruction permitting a recovery for such sum as the jury may believe from the evidence will compensate the plaintiff for bodily pain and mental anguish and also for such sum as will compensate him for any permanent injury, omitting the word “reasonable” before the word “compensation” was not reversible error.
- ——: ——: Measure of Damages: Permitting Recovery fоr Permanent Injury: Not Broader Than Petition. In an action for damages for personal injuries, an instruction permitting a recovery for bodily pain and mental anguish and for any permanent injury was not erroneous as being broader than the allegations of the petition where the only evidence of any permanent injury was to the deltoid muscle of the plaintiff‘s shoulder, which permanent injury was alleged in the petition as an element of damage.
- ——: Excessive Damages: Verdict for $4,625 Not Excessive Under the Evidence. In an action against a railroad company for damages for personal injuries received in a collision at a crossing where the evidence was to the effect that plaintiff received a permanent injury to his left shoulder; that the muscles were atrophied and wasted; that it was much lower than the right, and that he experienced great pain upon manipulation of the shoulder; and, as a result he could not raise his left arm above a certain point, a verdict of $4,625 was not excessive.
Appeal from the Circuit Court of the City of St. Louis.—Hon. Franklin Ferriss, Judge.
AFFIRMED.
J. L. Howell and W. M. Hezel for appellant.
(1) The court erred in failing to give defendant‘s requested instruction in the nature of а demurrer to the
Thomas B. Crews and Walter Naylor Davis for respondent.
(1) In every instance, unless the fact be admitted, the matter of the credibility of the witnesses and the weight and value to be given to their testimony concerning the matter of which they speak, is for the jury to determine, and this is true though such evidence be not contradicted by other witnesses. Wack v. Railroad, 175 Mo. App. 111; Gannon v. Laclede Gas Light Co., 145 Mo. 502. (2) (a) Though it be that one is required
OPINION
BIGGS, C.—Plaintiff sues Walker D. Hines, Director General of Railroads, in charge of and operating St. Louis Merchants Bridge Terminal Railway, for personal injuries and property damage arising out of a collision between the plaintiff‘s automobile truck and a locomotive engine operated by defendant at a public crossing in the city of St. Louis. By a stipulation in this court James C. Davis successor to Walker D. Hines as such director, entered his appearance herein and was substituted as defendant-appellant.
Bremen avenue, a public street running east and west, crosses Hall street, another public thoroughfare running north and south. On Hall street and crossing Bremen avenue were six railroad tracks operated by the defendant. Beginning with the east of these tracks they may be numbered for the purposes of the case as numbers one, two, three, four, five, and six. Track No. 6 or the west track was termed a “team track” and curved sharply to the west from the сrossing. The defendant maintained a crossing gate on both sides of the tracks, which gates were operated by a watchman stationed in a tower to the east of the six tracks, from
Plaintiff charges that on August 15, 1918, he was driving his loaded automobile truck eastwardly on Bremen avenue; that as he approached near the intersection of Hall street, where said tracks and gates were maintained by defendant, and had approached to within one hundred feet of said gates, which were then lowered, the said gates were negligently and carelessly raised or opened by the defendant, and that the plaintiff following another automobile which had been waiting to pass eastwardly along said Bremen avenue over said tracks, proceeded along Bremen avenue over the defendant‘s tracks, and while so doing a locomotive engine negligently operated by the defendant ran into and struck plaintiff‘s truck, resulting in personal injuries to the plaintiff and damages to his said truck. It is further charged that the view of the approaching engine was obstructed by objects, and that plaintiff did not see or hear the approaching engine so as to stop and avoid it striking him until too late to do so; that the engineer in charge of said engine could, by the exercise of ordinary care, have seen the plaintiff and his automobile as aforesaid in time to have avoided striking plaintiff, but that the defendant through its agents and servants negligently failed to so look ahead and avoid striking plaintiff‘s automobile; that the said defendant by and through its employees in the control and operation of said engine negligently failed to ring the bell upon said engine, or to sound a whistle, or in any other manner to give warning to the plaintiff of the movements of said engine and the approach of same to said Bremen avenue over which the plaintiff at that time was driving.
Upon a trial there was a verdict and judgment for plaintiff for the sum of $4,625, from which defendant has appealed, claiming principally that its demurrer to the evidence should have been sustained, it being contended that the evidence convicted plaintiff of contributory negligence as a matter of law. Error is also assigned in the giving of instructions, and a claim is made that the verdict is excessive.
Plaintiff a man 65 years of age, residing at Labadie, Missouri, engaged in the business of general hauling and trucking, was at the time in question passing eastwardly over Bremen avenue with a truck load of hogs. He testified: “I was going east on Bremen avenue and came on to the tracks. I didn‘t know these were Terminal tracks or what they were at the time, and when I came in sight I supposed they were two blocks west. When I came in sight of the tracks the gates were down and there was another truck stopped and standing at the gate waiting for them to raise. When I got within 100 feet of the gate or tracks, the gates were still down and at about that distance they went up and this other truck that was standing there started. At that time I was right up behind the truck and was slowing up and near ready to stop. I was within a hundred feet of the truck as the gates raised and when this truck started I opened up my engine and went on. The track was clear and the gates raised and I just went on and didn‘t see this engine and couldn‘t possibly see it for a string of box-cars and the engine coming up behind these box-cars. I couldn‘t
On cross-examination plaintiff testified that he had been over this crossing quite often and knew of the presence of the rаilroad tracks; that he knew that it was a busy crossing with frequent train movements. He further testified: “I don‘t know whether the box-cars interfered with my view on the first two or three tracks. I think the engine was moving on the fourth track. I cannot say that I heard any bells ringing. My truck was rattling and making a noise. I won‘t say the engine bell was not ringing. If the bells were ringing I knew that such bells meant engine movements. I was not going over eight or ten miles an hour as I passed under the gates, and under the conditions that existed I could stop the automobile in a distance of about ten feet. The impact took place south of the middle of Bremen аvenue. There were plank boards across the street constituting the crossing, and I think the crossing extended practically all the way across Bremen avenue from the north to the south. The automobile that was ahead of me was in Bremen avenue north of the middle line of the street. As I started to go around it this truck was standing on the second track from the west and I passed it on
“Q. Why, if you were not expecting the approach of any engine, did you look north and south? A. I always do that. The fact that the gates were up did not prevent me from exercising the caution of looking north and south. Q. Well, why did you look to the north and south then, if you felt it was safe to cross the tracks after these gates were up? A. Because one going across the railroads all his life would know it.”
Plaintiff further said that when he first saw the engine it could not have been mоre than twelve or fifteen feet from him, and at that time the front of his automobile was not more than seven or eight feet from the point of impact. It appeared from plaintiff‘s testimony that this other truck was about ten feet high with side curtains and was about fifteen feet long, and that at the time plaintiff didn‘t hear any bell ringing or whistle sounded on the engine.
Another witness for plaintiff, who was driving the other truck testified that the accident happened on the fourth track from the west and that the box-cars were standing on the second track north of Bremen avenue; that when he reached the second track on which the box-cars were standing to the north of Bremen avenue the engine at that time was about 100 feet north; that he stopped because he saw the engine approaching; that he did not hear any bell or other warning given by the engine, and that he did not know whether the bell was ringing or not. He testified that the engine at that time was running at the rate of six or eight miles an hour, and ran about twenty or twenty-five feet after the collision; that he did not know how fast plaintiff‘s truck was going as it passed him, as he didn‘t see it until it
A rule seems to be well established in these gate crossing cases. In Yonkers v. Railroad, 182 Mo. App. 558, l. c. 568, it is stated thus: “The fact that the gates were maintained, and that they were open at this particular time, necessarily constituted an invitation to one to pass upon and over the defendant‘s trаcks. It was essentially an assurance to plaintiff, driving upon the street, that no danger need be feared from an approaching train. While it may be true that she was not so far relieved of the duty to look and listen that she could go blindly and heedlessly upon the tracks, relying wholly upon the fact that the gates were not closed, nevertheless her duty to look and listen is to be regarded as modified, to a great extent at least, by the fact that the open gates constituted an invitation to go upon the tracks and as assurance of safety on so doing. [See, also, Wack v. Railway, 175 Mo. App. 111, 157 S. W. l. c. 1072; Swigart v. Lusk et al., 196 Mo. App. 471, 192 S. W. 138; Strotjost v. St. Louis Merchants Bridge Terminal Railway Company (St. Louis Court of Appeals), 181 S. W. 1082; Montgomery v. Railroad, 181 Mo. 477, 507, 79 S. W. 930; Rollinson v. Lusk, 203 Mo. App. 31, 217 S. W. 328.]”
Defendant‘s counsel do not seem to controvert the rule, but assert that it has no application in the present case because it is said to appear conclusively from the evidence that the plaintiff did not rely upon any assurance of safety from the open gates, nor construe it as an invitation to cross. While it is true that the plaintiff did not affirmatively testify that he relied upon the open gates as an invitation to cross, we think it may reasonably be inferred from plaintiff‘s statement that he placed
Complaint is made of the plaintiff‘s main instruction because it is said to authorize a recovery in the event plaintiff could not see or hear an engine approaching by reason of the obstructions, and permitted a recovery if the jury found the plaintiff looked and listened for an approaching train, though looking and listening were unavailing under the situation that existed. The instruction in addition to requiring a finding that plaintiff looked and listened, also required a finding that plaintiff was exercising for his own safety and protection the care and cаution that an ordinarily prudent and careful person would exercise under the same or similar circumstances. In addition to having the assurance of safety given to him by reason of the gates being raised in his presence, the plaintiff looked both north and south for an approaching train and also listened before committing himself to the crossing. At that time he neither heard nor observed an approaching train, and could not be said to be guilty of negligence in going upon the track in the first instance. Not having seen nor heard any train movement at that time, and being assured by the oрening of the gates that the crossing was safe, plaintiff was justified in proceeding on over the tracks. He was under no duty to stop his machine, in the absence of knowledge or information of danger. For him to have stopped while making the crossing, in the absence of information of danger, would have meant that he should stop upon a railroad track, itself a signal of danger. We perceive no error in plaintiff‘s main instruction.
Plaintiff‘s instruction No. 2 covering the question of contributory negligence is complained of. What has been heretofore said disposes of defendant‘s main objections to the instruction. As heretofore stated, the gates being up plaintiff had a right to rely on that as an invitation to cross, and he could not be charged with
Complaint is also made against the instruction on the measure of damages, which permitted a recovery for such sum as the jury may believe from the evidence will compensate the plaintiff for bodily pain and mental anguish, and also for such sum as will compensate him for any permanent injury, if any, which they may find and believe from the evidence he has suffered by reason of the injury in question. It is said that this instruction is erroneous because it does not limit the jury to a finding of reasonable compensation, and further because it permitted a recovеry of damages for injuries beyond the purview of the allegations of the petition. We do not regard the omission of the word “reasonable” before the word “compensation” as reversible error. Nor do we regard the form of the instruction as being broader than the allegations of the petition, thereby permitting a recovery for injuries not alleged. The only evidence of any permanent injury in the case was to the deltoid muscle of plaintiff‘s shoulder, which permanent injury was alleged in the petition as an element of damage.
By an instruction given at defendant‘s request the jury were told that they could not allow any damages for any injury to the joint of the left shoulder as the claim in the petition was for injury to the deltoid muscle only so far as the shoulder is concerned. This instruction was quite favorable to the defendant on the question of the measure of damages, inasmuch as plaintiff claimed in the petition that his left shoulder was bruised and injured, in addition to an allegation that the deltoid muscle over the shoulder was permanently injured, and there
Lastly, it is asserted that the verdict is excessive. We do not so regard it in view of the plaintiff‘s evidence which must be accepted as true, which is to the effect that he received a permanent injury to his left shoulder that incapacitated him from performing manual labor, which was his occupation and calling. A physician testified that he found the muscles of plaintiff‘s left shoulder atrophied and wasted; that the left shoulder was much lower than the right and that plaintiff experienced great pain upon manipulation of that shoulder; that as a result plaintiff could not raise his left аrm above a certain point; that by reason of the nerves causing pain as plaintiff attempts to move the arm the muscles have atrophied by reason of disuse. Another physician gave similar testimony, and they both testified that in their opinion the injury was permanent. In view of other minor injuries the plaintiff received, it cannot be said that the verdict is so excessive as to require interference on our part.
As a result of what is herein said, it follows that the judgment should be affirmed.
PER CURIAM:—The foregoing opinion of BIGGS, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly affirmed. Allen, P. J., Becker and Daues, JJ., concur.