Opinion
No. 41040.
April 11, 1949. Motion for Rehearing or to Transfer to Banc Overruled, May 9, 1949.
Plaintiff truck driver was injured in a grade crossing collision. The petition was sufficient when attacked for the first time after verdict. Plaintiff made a submissible case that defendant failed to give a substitute warning after knowledge that the flasher signal at the crossing was not working, and plaintiff was not guilty of contributory negligence as a matter of law. Plaintiff's instruction was not reversible error. While there was no evidence to support the issue of negligence in failing to repair the signal, this issue was submitted in the conjunctive. The issue of future loss of earning capacity was supported by an allegation of permanent injuries. A verdict of $20,000 was excessive by $5,000.
1. NEGLIGENCE: Railroads: Pleading: Grade Crossing Collision: Petition Sufficient After Verdict. A nebulous allegation of general negligence in failing to have a crossing flasher signal in working order was sufficient when not attacked prior to the verdict.
2. NEGLIGENCE: Railroads: Pleading: Grade Crossing Collision: Reliance on Crossing Signal. The petition does not allege that plaintiff relied solely on the crossing signal.
3. NEGLIGENCE: Railroads: Grade Crossing Collision: Unlit Crossing Signal: Knowledge of Defendant: Failure to Give Substitute Warning: Submissible Case. There was evidence for the jury that the flasher signal at the crossing was not working and that a brakeman who had been placed at the crossing failed to give a substitute warning.
4. NEGLIGENCE: Railroads: Grade Crossing Collision: Reliance on Crossing Signal: Contributory Negligence Not Established. Plaintiff's view of the crossing was blocked by an embankment and some fuel tanks, and the unlit signal device gave assurance of a safe crossing. Plaintiff was not guilty of contributory negligence as a matter of law.
5. NEGLIGENCE: Railroads: Grade Crossing Collision: Unlit Crossing Signal: Instruction Sufficient. Plaintiff's instruction No. 1 sufficiently covered the issues that plaintiff relied on the crossing signal, and that defendant knew it was not working and failed to give a substitute warning. The instruction was not repetitious, argumentative or confusing. And if the instruction is broader than the petition, the latter will be considered as amended to conform to the proof, no objection to the evidence having been made.
6. NEGLIGENCE: Railroads: Trial: Assignment Not Supported by Evidence: Conjunctive Instruction: Not Reversible Error. There was no evidence of negligence in failure to repair the crossing signal, but this charge of negligence was submitted in the conjunctive, so there was no reversible error.
7. NEGLIGENCE: Railroads: Trial: Words and Phrases: Use of "Duly" Not Erroneous. The instruction was not erroneous because it used the word "duly" in the clause "so that said signal would duly warn plaintiff of the approach of any train or trains."
8. NEGLIGENCE: Railroads: Motor Vehicles: Grade Crossing Collision: Duty of Plaintiff to Exercise Highest Degree of Care. The instruction properly required the jury to find that plaintiff truck driver was exercising the highest degree of care.
9. DAMAGES: Future Loss of Earnings: Allegation of Permanent Injuries Sufficient. A petition alleging permanent injuries was sufficient to base an instruction covering future loss of earning capacity.
10. DAMAGES: Verdict Excessive. A verdict of $20,000 was excessive by $5,000, plaintiff having been partially incapacitated for heavy work before he sustained his injuries.
Appeal from Circuit Court of City of St. Louis; Hon. Edward M. Ruddy, Judge.
AFFIRMED ( subject to remittitur).
Thomas J. Cole and Ragland, Otto, Potter Embry for appellant.
(1) The petition is bottomed solely on the alleged failure of the crossing signal to operate. Such an allegation states no cause of action, absent an allegation of knowledge on appellant's part or an allegation that the signal had been out of operating condition long enough to charge appellant with knowledge of the condition. Hatten v. C.B. Q.R. Co., 233 S.W. 281; Monsour v. Excelsior Tobacco Co., 115 S.W.2d 219; Henn v. L.I.R. Co., 65 N.Y.S. 21; Bachman v. Quincy K.C.R. Co., 310 Mo. 48, 274 S.W. 764; 45 C.J., p. 660, sec. 28; 44 Am. Jur., p. 766, sec. 522. (2) The petition, in necessary effect, pleads reliance by respondent solely on the crossing signal to warn him of approaching trains. A motorists approaching a railroad track cannot, in the exercise of the highest degree of care, rely solely on a signal device. Jurgens v. Thompson, 350 Mo. 914, 169 S.W.2d 353; Moeller v. Mo. Pac. R. Co., 272 S.W. 990; Herring v. Franklin, 339 Mo. 571, 98 S.W.2d 619; Mullis v. Thompson, 213 S.W.2d 941; Rhineberger v. Thompson, 202 S.W.2d 64; Wren v. C.B. Q.R. Co., 44 S.W.2d 241; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185; Wabash R. Co. v. Huelsmann, 290 F. 165; Schaub v. K.C. Southern R. Co., 133 Mo. App. 444; Swigert v. Lusk, 196 Mo. App. 471, 192 S.W. 138. (3) Evidence that the signal failed to function at the time of the collision, absent (as here) anything as to why it did not function, if it did not, does not constitute proof of any negligence on appellant's part and does not justify submission of an issue of negligence. Startup v. Pac. Electric Ry. Co., 171 P.2d 107; Kingsbury v. Boston M.R.R., 106 A. 642; Vaca v. Southern Pac. Co., 267 P. 346; 44 Am. Jur., p. 766, sec. 522. (4) And, there is no submissible case, on a charge of failure of a signal to function, absent (as here) evidence of knowledge on appellant's part or evidence that the same was out of repair long enough, before the collision, to impute knowledge to appellant. 45 C.J., p. 660, sec. 28; Henn v. L.I.R. Co., 65 N.Y.S. 21; Hatten v. C.B. Q.R. Co, 233 S.W. 281; Monsour v. Excelsior Tobacco Co., 115 S.W.2d 219; Robinson v. Great Atl. Pac. Tea Co., 347 Mo. 421, 147 S.W.2d 648. (5) Even if the evidence had shown a case otherwise submissible, respondent's own evidence shows that he was guilty of contributory negligence as a matter of law. Respondent's testimony was that he relied solely on the crossing signal to warn him of the approach of a train. That he had no right to do in the exercise of the highest degree of care. See cases cited under Point (2). (6) Respondent's testimony that he relied solely on the signal robs any other statement that he made, as to reliance on anything other than the signal of any probative force. Steele v. K.C. Southern R. Co., 265 Mo. 97; Stevens v. Thompson, 175 S.W.2d 166. (7) Respondent was under the duty to look for the train. Jurgens v. Thompson, 350 Mo. 914, 169 S.W.2d 353. (8) Whether he failed to look or failed to see what was plainly visible, he was guilty of negligence as a matter of law. Jurgens v. Thompson, supra; State ex rel. K.C. Southern R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621. (9) Or, he must have been negligent, as a matter of law, in approaching the track at such a speed, or with such lack of control, that he could not stop on the appearance of danger. Jurgens v. Thompson, 350 Mo. 914, 169 S.W.2d 353. (10) The trial court erred in giving Instruction 1 requested by the respondent because the evidence was not sufficient to make a submissible case and, therefore, there was not sufficient evidence on which to base, or to justify, the giving of the instruction. (11) Said instruction is repetitious, argumentative and confusing. Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593; McGrory v. Thurnan, 84 S.W.2d 147. (12) Said instruction is broader than the petition and also unsupported by the evidence in that, in the second paragraph, it submits the question of the crossing signal being out of order, prior to the collision, long enough for appellant to know of it and to provide another warning in lieu thereof. That constitutes submission of an issue of negligence different from, and independent of, a charge of negligent failure to maintain the signal and keep it in repair. Dehn v. Thompson, 181 S.W.2d 171. (13) There is no such charge of negligence in the petition, and there is no evidence in the record on which to base submission of that issue. The instruction, in that particular is, therefore, broader than the petition, outside of the pleaded issues, and not supported by the evidence. An instruction must be supported by both the pleadings and the evidence. State ex rel. Anderson v. Hostetter, 346 Mo. 249, 140 S.W.2d 21; Rishel v. Kansas City Pub. Serv. Co., 129 S.W.2d 851; Grosvenor v. New York Cent. R. Co., 343 Mo. 611, 123 S.W.2d 173; State ex rel. Spears v. McCullen, 210 S.W.2d 68. (14) Said instruction, in the concluding part of the second paragraph thereof, clearly authorized a recovery simply on a finding of failure of the crossing signal to operate, even though the respondent relied solely on that signal. The respondent, in the exercise of the highest degree of care, could not rely solely on the signal. Mullis v. Thompson, 213 S.W.2d 941; Rhineberger v. Thompson, 202 S.W.2d 64; Jurgens v. Thompson, 350 Mo. 914, 169 S.W.2d 353; Swigart v. Lusk, 196 Mo. App. 471, 192 S.W. 138; Wabash Ry. Co. v. Huelsmann, 290 F. 165; Wren v. C.B. Q. Ry., 44 S.W.2d 241; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185. (15) There could be no recovery simply on the charge of failure of the signal light to function, absent (as here) evidence of knowledge on appellant's part, or evidence that the same had been out of repair long enough, before the collision, to impute knowledge to the appellant. 45 C.J., p. 660, sec. 28; Henn v. L.I.R. Co., 65 N.Y.S. 21; Hatten v. C.B. Q., 233 S.W. 281; Monsour v. Excelsior Tobacco Co., 115 S.W.2d 219; Robinson v. Great Atlantic Pac. Tea Co., 347 Mo. 421, 147 S.W.2d 648. (16) There was no evidence that the alleged failure of the crossing signal to function was due to any negligence on appellant's part. Startup v. Pac. Electric Ry. Co., 171 P.2d 107; Kingsbury v. Boston M.R.R., 106 A. 642; Vaca v. Southern Pac. Co., 267 P. 346; 44 Am. Jur., p. 776, sec. 522. (17) Said instruction, in the first paragraph, by stating that it was appellant's duty to use reasonable care to properly maintain said signal so that it would "duly" warn plaintiff, made appellant a guarantor that the signal would warn the respondent. No issue of negligent failure to warn plaintiff other than by the crossing signal was tendered in this case. The appellant was under no duty to install the crossing signal. Homan v. Mo. Pac. R. Co., 334 Mo. 61, 64 S.W.2d 617. (18) And, having done so, its duty was not to guarantee that it would "duly" or absolutely warn respondent, but simply to use ordinary care to keep it in repair. Bachman v. Quincy, O. K.C.R. Co., 274 S.W. 764. (19) The trial court erred in giving Instruction 10 requested by respondent, because said instruction submitted, as an element of damage, the question of future losses by reason of loss of earning capacity, although no such element of damage was pleaded. Nothing complained of by respondent would necessarily result in future loss of earnings capacity. Any damages which, although a natural, are not the necessary result of an injury complained of, are special damages and must be pleaded. State ex rel. Grisham v. Allen, 344 Mo. 66, 124 S.W.2d 1080; Weller v. Hayes Truck Lines, 197 S.W.2d 657; Civil Code of Missouri, sec. 52. (20) There was no evidence on which to base a submission of future losses because of impaired earning capacity. The instruction was erroneous, in said particular, as not being supported by both the pleadings and the evidence. See Authorities cited under Point (13). (21) The verdict was excessive. Scheidegger v. Thompson, 174 S.W.2d 216.
Vincent M. Flynn, Charles E. Gray and Chelsea O. Inman for respondent.
(1) The petition states a claim upon which relief can be granted. Berberet v. Electric Park Amusement Co., 319 Mo. 275, 3 S.W.2d 1025, 61 A.L.R. 1269; Crane v. Mo. Pac. R. Co., 87 Mo. 588; Fassbinder v. Mo. Pac. R. Co., 126 Mo. App. 563, 104 S.W. 1154; Messing v. Judge Dolph Drug Co., 322 Mo. 901, 18 S.W.2d 408; Johnson v. Mo. Pac. R. Co., 96 Mo. 340, 9 S.W. 790. (2) Conceding arguendo that the petition is defective as alleged, since the appellant did not take advantage of the same by motion to dismiss for failure to state a cause of action, and permitted evidence to go in, without objection, showing that appellant knew or in the exercise of ordinary care, should have known that the crossing signal mentioned would not operate at the time in question, the defect was cured by the verdict and judgment, and the petition is taken as amended to conform to the proof, and the appellant cannot now be heard to complain. R.S. 1939, sec. 1265; Winn v. Kansas City Belt R. Co., 245 Mo. 406, 151 S.W. 98; Weber v. Terminal R. Assn. of St. Louis, 20 S.W.2d 601; Shimmin v. C. S. Mining Co., 187 S.W. 76; Simpson v. Wells, 292 Mo. 301, 237 S.W. 520; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671. (3) The petition pleads that the respondent was accustomed to relying on appellant's said custom of so operating the said device and signal that the same would flash a red warning light when locomotives were approaching the East Big Bend Road over the said tracks, but does not plead that he relied solely thereon. Under the circumstances in this case, the respondent had a right to rely on the fact that the signals would flash a warning upon the approach of a locomotive. Bachman v. Quincy, O. K.C.R. Co., 310 Mo. 48, 274 S.W. 764; Mullis v. Thompson, 213 S.W.2d 941; Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64. (4) The question raised here by the appellant, being contributory negligence, is in this State a matter of affirmative defense. Dehn v. Thompson, 181 S.W.2d 171. (5) The trial court properly submitted the case to the jury and committed no error in overruling appellant's motion for a directed verdict at the close of all the evidence. Homan v. Mo. Pac. R. Co., 334 Mo. 61, 64 S.W.2d 617; Dehn v. Thompson, 181 S.W.2d 171; Toeneboehn v. St. Louis-S.F. Ry. Co., 317 Mo. 1096, 298 S.W. 795. (6) There was insufficient evidence for the jury to find that the respondent was guilty of contributory negligence, much less, is there sufficient evidence for the respondent to be found guilty of negligence as a matter of law. Under the circumstances of this case, the respondent had a right to rely on the fact that the signals would flash a warning upon the approach of a locomotive. Bachman v. Quiney, O. K.C.R. Co., 310 Mo. 48, 274 S.W. 764; Mullis v. Thompson, 213 S.W.2d 941; Sisk v. Chicago, B. Q.R. Co., 67 S.W.2d 830; Herrell v. St. Louis-S.F. Ry. Co., 322 Mo. 551, 18 S.W.2d 481. (7) The evidence showed that the view of the appellant's track to the south, from which direction the locomotive came, was obstructed and the respondent, approaching the crossing from the east could not see over or around these obstructions; that the signals at the crossing were not flashing; that no warning of the approach of the locomotive, either by bell, whistle, or hand, was given; that this was not a regularly scheduled train. Under these facts and circumstances any evidence tending to show that respondent was guilty of contributory negligence merely made a question of fact for the jury, and it cannot be said that the plaintiff was guilty of negligence as a matter of law. Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64; Mullis v. Thompson, 213 S.W.2d 941; Gorman v. St. Louis Merchants' Bridge Term. Ry. Co., 325 Mo. 326, 28 S.W.2d 1023; Sisk v. Chicago, B. Q.R. Co., 67 S.W.2d 830; Kennayde v. Pacific Railroad Co., 45 Mo. 255; Monroe v. Chicago A.R. Co., 280 Mo. 483, 219 S.W. 68; Perkins v. Kansas City So. Ry. Co., 329 Mo. 1190, 49 S.W.2d 103; Scott v. Mo. Pac. R. Co., 333 Mo. 374, 62 S.W.2d 834. (8) The failure to look and see that which can be seen is not negligence as a matter of law under all circumstances; especially is this true where there is no positive showing that looking would have resulted in seeing. Perkins v. Kansas City So. Ry. Co., 329 Mo. 1190, 49 S.W.2d 103; Herrell v. St. Louis-S.F. Ry. Co., 322 Mo. 551, 18 S.W.2d 481; Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64. (9) There was no error in Instruction 1. The instruction in submitting the issue as to whether the signal had been out of order long enough for the appellant to know of it, and provide another warning in lieu thereof, was covered by the pleading of negligence contained in plaintiff's petition. If it should be held that said issue of negligence was not pleaded, and is thus broader than the petition, it must be conceded that the issue submitted was the issue tried through the course of the trial, the evidence having been introduced without objection. Therefore, the petition is taken as amended to conform to the proof. Mo. R.S.A., sec. 847.82; Page v. Wabash R. Co., 206 S.W.2d 691; Parker v. St. Louis-S.F.R. Co., 41 S.W.2d 386; Bragg v. Met. St. Ry. Co., 192 Mo. 331, 91 S.W. 527; Ford v. Louisville N.R. Co., 196 S.W. 163; Stark v. St. Louis Pub. Serv. Co., 211 S.W.2d 500. (10) Said instruction sufficiently covered the issue of contributory negligence, and the jury were not authorized to return a verdict if they found respondent relied solely on the signal. Bachman v. Quincy, O. K.C.R. Co., 310 Mo. 48, 274 S.W. 764; Herrell v. St. Louis-S.F.R. Co., 322 Mo. 551, 18 S.W.2d 481; Scott v. Mo. Pac. R. Co., 333 Mo. 374, 62 S.W.2d 834. (11) Said instruction requires the jury to find that appellant knew, or in the exercise of ordinary care should have known, prior to the collision, that said crossing signal was out of order, and in the exercise of ordinary care, prior to the collision, could have warned respondent, and that the appellant failed to warn respondent, in the exercise of ordinary care. (12) We agree that there was no evidence that the crossing signal failed to function due to any negligent act or acts of the appellant. Such issue is completely foreign to this case. (13) Said instruction correctly instructed the jury that the appellant, under the circumstances, was charged with the duty to use reasonable care to properly maintain the signal, but did not instruct them that the appellant was a guarantor. The instruction properly set forth the law of Missouri. Bachman v. Quincy, O. K.C.R. Co., 310 Mo. 48, 274 S.W. 764. (14) Conceding that the appellant was under no duty to install a crossing signal at all crossings, yet he might have been negligent in failing to have installed one at the crossing in question. Dehn v. Thompson, 181 S.W.2d 171. (15) Having recognized the need for a warning light at this crossing, and having maintained one for several years, the appellant was under a duty to use ordinary care to keep it in repair, and to warn the appellant if the same should not be working. Dehn v. Thompson, 181 S.W.2d 171; Bachman v. Quincy, O. K.C.R. Co., 310 Mo. 48, 274 S.W. 764. (16) There was no error in Instruction 10. The petition in this case was sufficient for the submission of damages for the future loss of earnings, and the same was not required to be specifically pleaded. Such damages, under the pleadings in this case, are general damages. Shimmin v. C. S. Mining Co., 187 S.W. 72; Scholl v. Grayson, 147 Mo. App. 652, 125 S.W. 871; Pendegrass v. St. Louis-S.F.R. Co., 179 Mo. App. 517, 162 S.W. 712; Ingles v. Met. Ry. Co., 145 Mo. App. 241, 129 S.W. 493; Bartley v. Trorlicht, 49 Mo. App. 214. (17) Neither respondent's objections to Instruction 10, nor the motion for a new trial; were sufficient to permit the review of the objections now raised. Mo. R.S.A., sec. 847.122; Sup. Ct. Rule 3.23. (18) There was sufficient evidence for the submission of future loss of earnings because of the impaired earning capacity. The appellant's failure to object to the introduction of evidence as to future loss of earnings and his own interrogation on this issue, constitutes a waiver, and the appellant cannot now complain of this alleged error. Mo. R.S.A., sec. 847.82; Stark v. St. Louis Pub. Serv. Co., 211 S.W.2d 500; Harrison v. Coleman, 171 Mo. App. 633, 154 S.W. 456; Mellor v. Mo. Pac. R. Co., 105 Mo. 455, 16 S.W. 849; Flintjer v. Kansas City, 204 S.W. 951. (19) The verdict is not excessive under the facts in this case. The appellate court considers only the evidence favorable to the plaintiff on the extent of damages, and takes into consideration the decreased purchasing power of money. Under all the facts in this case the verdict is not excessive. Hampton v. Wabash R. Co., 204 S.W.2d 708; Hoelzel v. Chicago, R.I. P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Brady v. Terminal R. Assn. of St. Louis, 344 Mo. 502, 127 S.W.2d 1.
In the circuit court of the city of St. Louis the respondent recovered a judgment in the sum of $20,000 against the appellant for personal injuries that the respondent received in a collision between a milk truck he was driving and an engine operated by the appellant. This collision occurred at the intersection of Big Bend Road and the Missouri Pacific Railroad tracks in St. Louis County.
The appellant's first assignment of error is that the respondent's "petition fails to state a claim upon which relief can be granted, because: (A) It does not allege that the appellant knew or, in the exercise of ordinary care, should have known that the crossing signal mentioned therein would not operate at the time therein referred to."
Briefly, respondent's petition alleged that the appellant had installed an electric device at the northeast corner of the intersection of Big Bend Road and the tracks of the Missouri Pacific Railroad Company and that this signal was so designed as to flash a red warning light when locomotives were approaching this intersection. The petition further states that as respondent was driving and operating his truck on Big Bend Road onto the railroad tracks on June 29, 1945, the signal device did not flash or display a red light at any time prior to the time the truck driven by respondent was struck by appellant's locomotive. The negligence charged was that appellant knew, or in the exercise of ordinary care could have known, that persons operating motor vehicles on Big Bend Road would rely on the appellant's custom of so operating the signal device, that "nonetheless the defendant (appellant), through his agents and servants, negligently failed to exercise ordinary care in the premises, and to have the said device and signal in such condition that it would flash a red warning light when the locomotive which struck the truck which plaintiff (respondent) was so operating and driving approached and came on the said East Big Bend Road, as aforesaid."
The above quoted part of respondent's petition was a charge of general negligence which is good after verdict, in the absence of attack, even though it is indeed nebulous in its allegation of negligence. Holtz v. Daniel Hamm Drayage Co., 357 Mo. 538, 209 S.W.2d 883. The appellant did not attack the petition by motion or ask that it be made more definite and certain. In fact, the appellant did not object to the evidence that tended to prove that appellant knew that the signal device was not working. Under these facts there is no merit in appellant's contention. Mo. R.S.A., Section 847.82.
The appellant's next attack upon respondent's petition is that "the petition, in necessary effect, pleads reliance by respondent solely on the crossing signal to warn him of approaching trains." It is the appellant's theory that if respondent solely relied upon the crossing signal to warn him of the approach of the train then he would be guilty of contributory negligence as a matter of law. As above stated, the respondent in his petition charged that the appellant "negligently failed to exercise ordinary care in the premises." This is a very general charge of negligence. We are unable to agree with appellant that respondent's petition is susceptible of such construction.
The appellant's second assignment of error is that "the trial court erred in submitting the case to the jury and in not sustaining appellant's motion for a directed verdict at the close of all of the evidence."
The verbatim details of this evidence would serve no useful purpose. The evidence shows maintenance of the signaling device at the northeast part of the intersection of Big Bend Road and the Missouri Pacific tracks. The respondent [72] testified that this crossing signal did not function as he approached the crossing. However, the mere fact that there is evidence that the signal device did not function is not enough to show negligence on the part of the appellant. There must be a showing either that the appellant knew the signal did not function or that it had been out of repair long enough before the collision to impute knowledge to the appellant. 45 C.J., p. 660, section 28. Both appellant and respondent concede this to be the law.
As to whether the appellant had knowledge that the signal device was out of order prior to the collision, we must review the evidence most favorable to respondent. The engineer of the locomotive that struck respondent's truck testified that he was going to take the freight train from St. Louis to Jefferson City; that from St. Louis to near the intersection of Big Bend Road and the railroad tracks there was a helper engine attached to his train; that when his train reached a point near the intersection the helper engine was disconnected from this train and helped move a work train; that his locomotive did not move for about 45 minutes; that he decided to cut his engine loose from the cars and go get some water as his water was too low to run to Washington, Missouri; that during this interval he observed the flasher light device working through a peek hole; that he directed the brakeman to direct traffic over the crossing; that he informed this brakeman that the locomotive was going to proceed across the intersection and he instructed the brakeman to watch the traffic as an "extra precaution" so as to prevent traffic from crossing the tracks as he was moving the engine; and that he saw this brakeman signal the respondent not to cross the railroad tracks.
The brakeman testified that the locomotive was standing about 15 feet south of the intersection and when the engineer told him "he was going to pull the engine up" that he then started to flag the traffic so that it would not cross the tracks; that he first observed the respondent approaching the intersection when he was approximately 200 to 250 feet east of the crossing, at which time the respondent was traveling about 20 miles an hour; that he tried to prevent the respondent from crossing the tracks by signaling to him but was unable to do so; and that the flasher light signals were working.
The respondent testified that as he approached the intersection he saw a man sitting on a box on the northeast corner of the intersection near the signal device who later turned out to be the brakeman, and at no time did this brakeman give any signal or warning of the approach of the locomotive and that the bell or whistle on the locomotive did not sound.
We think it is a fair inference the jury could draw that the signal device was not working and that this fact was known to the train crew. If the signal was working at the time the locomotive started to cross Big Bend Road, why was it necessary to have the brakeman warn the traffic by hand? At least, the jury could draw that inference. Since the train crew was at the crossing the jury could draw the inference that the appellant's servants were negligent in not providing a substitute warning for the defective warning device. Therefore, the court properly submitted the case to the jury. Dehn v. Thompson, 181 S.W.2d 171; Homan v. Mo. Pac. R. Co., 334 Mo. 61, 64 S.W.2d 617; Toeneboehn v. St. Louis-San Francisco R. Co., 317 Mo. 1096, 298 S.W. 795.
Also, appellant contends that respondent's own evidence shows that he was guilty of contributory negligence as a matter of law and, therefore, the case should not have gone to the jury.
The appellant contends that respondent's own evidence was to the effect that he relied solely on the crossing signal to warn him. A reading of the respondent's entire testimony refutes this statement. It is true respondent testified that he relied upon the signal device, but not entirely, as he tried to observe the traffic and he was watching the crossing. There was a very large embankment on the south side of the highway close to the tracks, and two large fuel tanks, and he was unable to see to the south until he passed these tanks. The first time he saw the locomotive, which was just south of the concrete pavement [73] of the highway, was when he was about 25 feet from the track and was traveling about 20 miles an hour. He tried to stop but was unable to do so. He saw no flashing of lights from the signal device at any time as he approached the tracks. The brakeman did not flag him down and he did not hear the engine bell or whistle of the locomotive.
We think these facts come squarely within the ruling of our recent banc case of Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64, l.c. 68, wherein we said:
"It was plaintiff's duty, in approaching the crossing, to lend an attentive eye and ear to the signaling device defendant had installed to warn highway travelers of passing trains. Perkins v. Kansas City Southern R. Co., supra. The unlit, silent, inactive signaling device impliedly assured the highway traveler, plaintiff, the crossing could be made in safety. While one in the exercise of due care would not rely solely upon the performance of defendant of the duty assumed in erecting the signaling device and would use his own senses, yet, a person, although exercising due care, doubtless would feel more secure and would be less vigilant than if defendant's implied assurance that the crossing could be made in safety had not existed. Perkins v. Kansas City Southern R. Co., supra; Gorman v. St. Louis Merchants' Bridge Terminal R. Co., 325 Mo. 326, 28 S.W.2d 1023; Bachman v. Quincy, O. K.C.R. Co., 310 Mo. 48, 274 S.W. 764; Sisk v. Chicago, B. Q.R. Co., Mo. App., 67 S.W.2d 830."
The appellant makes several assignments of error in regard to the giving of instruction No. 1, given at the request of the respondent. That instruction reads as follows:
"The Court instructs the jury that defendant installed and maintained an electric crossing signal at the intersection mentioned in the evidence of its track and Big Bend Road, an open public highway in the County of St. Louis, to warn of the approach of trains on its said track; and if you find and believe from the evidence that the plaintiff knew of and relied upon said signal to warn him of the approach of any train or trains on defendant's said track at said crossing, you are then instructed that it became and was the duty of the defendant to use reasonable care to properly maintain said signal so that said signal would duly warn plaintiff of the approach of any train or trains on defendant's said track at said crossing, and that plaintiff had a right to rely upon no train being in close proximity to said crossing unless plaintiff knew that said train was approaching or by the exercise of the highest degree of care could so have known.
"You are further instructed that on the 29th day of June, 1945, plaintiff was driving a motor truck in a westerly direction on Big Bend Road in said County and across said track and was struck by a locomotive operated by defendant through his agents and servants; and you are further instructed that if you find and believe from the evidence that plaintiff was in the exercise of the highest degree of care and if you further find that plaintiff was injured as a direct result of said locomotive striking said motor truck, and if you further find and believe from the evidence that the defendant negligently and carelessly permitted said crossing signal to be and remain out of order and repair and that the same would not operate; and if you find that defendant knew, or in the exercise of ordinary care should have known, prior to collision, that said crossing signal was out of order, if you so find, and in the exercise of ordinary care, prior to the collision, could have warned plaintiff, and if you further find that defendant failed to warn plaintiff in the exercise of ordinary care; and if you further find that plaintiff knew that defendant had installed and had been maintaining said signal and relied thereon, and that plaintiff had no knowledge that said crossing signal was out of order and would not operate, if you so find, and if you further find that said crossing signal was not operating or giving warning to the plaintiff of the approach of defendant's said locomotive; and if you further find that, as a direct result of said crossing signal not operating, if you so find, the collision in question took place and that plaintiff was injured, then [74] you should find in favor of the plaintiff, John Rinderknecht and against the defendant, Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation."
The respondent made a submissible case for the jury when he showed that he was in the exercise of the highest degree of care; that he was injured as a direct result of the locomotive striking the truck; that he knew appellant had installed and maintained the signal device and he was accustomed to rely thereon; that he had no knowledge that the crossing signal was out of order and would not operate; that the crossing signal was not operating or giving warning to him of the approach of the appellant's locomotive at the time and place in question; that appellant knew or in the exercise of ordinary care should have known, prior to the collision, that the crossing signal was out of order, and that in the exercise of ordinary care prior to the collision could have warned respondent; that appellant failed to exercise ordinary care to warn the respondent; and that as a direct result of such negligence the collision took place and respondent was injured. Bachman v. Quincy, O. K.C.R. Co., supra; Dehn v. Thompson, supra; Rhineberger v. Thompson, supra.
We think that instruction No. 1 set out these requirements and we have already held there was sufficient evidence to support these above requirements with one additional fact and that is that the respondent had crossed this crossing twice a day, six days a week, for years and had and did rely on the crossing signal. Moreover, we think a mere reading of this instruction does not show it to be repetitious, argumentative or confusing. Such assignment is without merit.
The appellant contends that the instruction is broader than the petition. We have already discussed the fact that the petition charged general negligence, but since no objection to the evidence was made the petition will be considered as amended to conform to the proof.
There are two grounds of negligence in this instruction. One is that appellant knew or by the exercise of ordinary care could have known that the signal flasher was not operating and could have warned respondent but failed to do so. We have already held that there was sufficient evidence to submit this question to the jury.
But we agree with the appellant that there was no evidence to support the charge of negligence in this instruction, which says, "and if you further find and believe from the evidence that the defendant negligently and carelessly permitted said crossing signal to be and remain out of order and repair and that the same would not operate." There is no evidence showing how long the signal was out of order and would not operate, let alone that it was out of order long enough for the appellant to have repaired the same. But since these two grounds of negligence were submitted in the conjunctive, this is not reversible error. Monsour v. Excelsior Tobacco Co., 115 34 S.W.2d 219; Tash v. St. Louis-San Francisco Ry. Co., 335 Mo. 1148, 76 S.W.2d 690; Berry v. Baltimore and Ohio R. Co., 43 S.W.2d 782.
The appellant says that the use of the word "duly" in the clause, "so that said signal would duly warn plaintiff of the approach of any train or trains," made appellant a guarantor that the signal would warn the respondent. The word "duly" means "in a due manner, time or degree; as it (anything) ought to be; properly; . . . sufficiently." Webster's International Dictionary (Unabridged). We think the appellant's contention is without merit.
A mere reading of this instruction shows that it properly requires the jury to find that the respondent was in the exercise of the highest degree of care. We therefore find no reversible error in this instruction.
The appellant next contends that instruction No. 10 is erroneous because it "submitted as an element of damage the question of future losses by reason of loss of earning capacity, although no such element of damage was pleaded." The petition stated that all of respondent's bodily injuries, nervous impairments and derangements are permanent, and that as a direct [75] result of these injuries he has lost time from his work as a truck driver. An allegation that the injuries are permanent is sufficient allegation upon which to base a finding of future loss of earning capacity. Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330; Shimmin v. C. S. Mining Co., 187 S.W. 76.
The appellant's last assignment is that the verdict is excessive. The test is whether or not the size of the verdict is such as to shock the conscience of the court. We must accept the evidence on this question that is most favorable to the respondent.
The last day that respondent worked for his employer, the Pevely Dairy Company, was the date of the accident, June 29, 1945. The record of that company shows he was off 69 days between January 1, 1945 and June 29, 1945; that his gross weekly earning when he worked was $53.50; that he was a naval veteran and drew veterans' compensation from 1922 to 1933; that he had continuously tried to be reinstated until some time in 1942; and that after the accident he walked a half mile and then drove his car to his home. A physician examined him that day and found a slight contusion on his knee and several small scratches and abrasions on his wrist. The x-ray did not disclose any fracture or dislocation of any vertebrae, but the medical evidence was that he had "a tenderness over both of the sacro-iliacs and particularly the right." Also, the medical testimony shows that he was unable to do any strenuous manual labor, such as lifting milk cases; that this was partly due to a "lesion, which we call — it is congenital, that is, he was born with the lesion itself —" and partly due to injuries he received. The evidence showed that respondent had done no work from the date of the injury until February 9, 1948, the date this trial started, which was approximately 131 weeks, even though he was advised by his physician to do some light work.
We think that under the evidence in this record this verdict was excessive by at least $5,000.00. If the respondent will enter a remittitur of $5,000.00 within ten days from the date of the adoption of this opinion, then the judgment will be affirmed as of the date of the verdict; otherwise, the judgment of the trial court will be reversed and remanded. All concur.