Opinion
October 5, 1932.
1. DAMAGES: Primary Negligence: Humanitarian Rule. In an action for damages caused to plaintiff when the automobile in which he was riding was struck at a crossing by the railroad train of defendant, where contributory negligence was pleaded by the defendant, an instruction which authorized a verdict for plaintiff on a finding that the injury was caused by the primary negligence of the defendant and a finding also of facts which would authorize a verdict under the humanitarian rule and closing with the words "and this is the law under this instruction even though you should further find and believe that the plaintiff was negligent in getting into the position he was in at said time," was confusing and erroneous.
2. DAMAGES: Humanitarian Rule: Instruction. In such case under the humanitarian rule, on the theory that the plaintiff was in imminent peril from the approach of the train and that those in charge of the train knew or by the exercise of ordinary care could have known of such peril and by the exercise of ordinary care could have slackened the speed of the train and failed to do so as constituting negligence which caused the collision, where the evidence showed that the train ran a distance of 1,400 feet before it was stopped and the engine crew had a clear view of the crossing for 1,000 feet and there was no expert evidence as to the distance in which the train could be stopped with a speed of forty miles an hour at which it was going, the jury might conclude without entering into the field of speculation that any slackening of the train would have delayed its arrival at the crossing for an appreciable length of time.
3. DAMAGES: Humanitarian Rule: Instruction: Absence of Testimony. But where the evidence further showed that the front wheels of the automobile ran off the end of the crossing boards and it was put in reverse with the intention to back off the crossing, while the occupants of the car knew nothing of the approaching train and there was no evidence as to the speed of the automobile at the time or of the length of time which it would have required to clear the crossing, the jury could only speculate whether or not the slackening of the speed of the train would have prevented the collision, an instruction submitting the issue under the humanitarian rule was erroneous.
4. DAMAGES: Railroad Crossing: Signal Bell: Withdrawal Instruction. In such case an instruction which said it was a question for the jury to decide whether or not the bell at the crossing was ringing at the time and place referred to in the evidence, notwithstanding the alleged negligence of the defendant in failing to maintain such bell was withdrawn by instruction to the jury, was not reversible error since the withdrawal instruction referred to a defective bell.
5. HUSBAND AND WIFE: Wife as a Witness. In an action by the husband under the Act of 1921 (Laws of 1921, p. 392), Section 1728, Revised Statutes 1929, the disqualifying of a husband or wife to testify for his or her spouse, was removed and she could testify after the passage of such act, although the cause of action arose before the passage of such act.
Appeal from Jackson Circuit Court. — Hon. S. Stanford Lyon, Judge.
REVERSED AND REMANDED.
Charles M. Miller for appellants.
(1) The trial court erred in not granting a new trial on account of the false testimony knowingly given by plaintiff's witness, J.F. King. Sec. 1453, R.S. 1919; Dean v. Wabash Railroad Co., 229 Mo. 452; Ridge v. Johnson, 129 Mo. App. 545. (2) The trial court erred in giving plaintiff's Instruction 3, and further erred in refusing to give defendants' instruction, withdrawing from the jury, as an element of negligence against the defendant, the "reasonable control" and speed of train No. 9, for the reasons (a) the submission to the jury of the speed of the train and not being under "reasonable control," as an element of negligence against defendants, was improper and erroneous, under the facts and circumstances pertaining to the crossing. McGee v. Wabash Railroad Co., 214 Mo. 541; Zumwalt v. Railroad, 71 Mo. App. 670; Grambo v. Railroad, 134 N.E. 648. (b) Plaintiff's Instruction 3, erroneously permitted the jury to find against defendants, even though plaintiff was negligent. (e) Plaintiff's Instruction 3 is improper and erroneous in not defining "danger alarm" and being a roving commission to the jury, and for the further reason there was no evidence to support the alleged issue that a "danger alarm" would have averted the collision, sufficient to make a question for a jury, and would simply leave it to the jury to speculate and conjecture as to the "danger alarm" and effect. (d) Plaintiff's Instruction 3 was improper and erroneous in that the alleged failure to give warning as asserted in the petition, was limited to when plaintiff "was approaching and going upon the track," and the instruction did not follow the petition and made no reference, limiting the alleged failure to give warning to the time when plaintiff "was approaching and going upon the track," and sought to predicate the alleged failure to the time when plaintiff had stopped upon the track and was backing up, preparatory to starting ahead, which made the instruction much broader than the allegations of the petition in this respect, and changed and extended the alleged claim of negligence in this respect. The question of "reasonable control" was also outside the petition. Kirkpatrick v. Met. Ry. Co., 211 Mo. 83; Smith v. Railroad, 126 Mo. App. 123; Quinley v. Traction Co., 180 Mo. App. 302, 165 S.W. 346; Heingle v. Railway, 182 Mo. 529. (3) The trial court erred in giving plaintiff's given Instruction 4, and further erred in refusing to give defendants' instruction, withdrawing from the jury, as an element of alleged negligence against defendants, the alleged failure to slacken and stop the train for the following reasons: (a) There was no evidence upon which to predicate the alleged "slackening and stopping of the train" and further, such an alleged issue left it to mere surmise and conjecture of the jury. Hamilton v. Railroad, 318 Mo. 123, 300 S.W. 792; Clay v. Wheelock, 20 S.W.2d 556; McGee v. Wabash, 214 Mo. 543; Gourley v. Railroad, 35 Mo. App. 92; Quinley v. Traction Co., 180 Mo. App. 307, 165 S.W. 346. (b) Plaintiff's Instruction 4, was broader than the petition in that the instruction did not follow the petition and nowhere limited the alleged slackening and stopping of the speed of the train on the last clear chance theory, to the time when plaintiff was "approaching and going upon the track aforesaid," it being well settled that the charge of negligence cannot be broader than the petition. Kirkpatrick v. Met. St. Ry. Co., 211 Mo. 83: Smith v. Railroad, 126 Mo. App. 123; Quinley v. Traction Co., 180 Mo. App. 302, 165 S.W. 346; Heingle v. Railway, 182 Mo. 529. (4) The trial court erred in giving plaintiff's Instruction 8 pertaining to the automatic electric crossing bell, for the reason that it was bound to lead the jury to believe the automatic electric crossing bell was defective, which was prejudicial to the defendants, as to the bearing it had on whether or not the crossing bell was ringing at the time plaintiff approached the railroad track as a warning of the approach of the train. Strother v. Railway Co., 183 S.W. 658; Gillette v. Laederich, 242 S.W. 114.
Atwood, Wickersham, Hill Chilcott for respondent.
(1) The trial court did not err in refusing to grant a new trial on account of the alleged false testimony of plaintiff's witness King. Contradiction of King's testimony by defendants' witnesses, mostly on immaterial matters, affords no ground for a claim of false swearing. Defendants' Instruction 28 directed the jury to disregard the testimony of any witness whom the jury might believe had given false testimony. The trial court was invested with a sound discretion in matters of this kind and the record shows no abuse thereof. Neal v. Railways Co., 229 S.W. 218; Dean v. Railroad Co., 229 Mo. 453; Sly v. Railway Co., 134 Mo. 690; Kuint v. Loth-Hoffman Clothing Co., 247 S.W. 237; Powers v. Mut. Life Ins. Co., 91 Mo. App. 69; Steele v. K.C.S. Ry. Co., 257 S.W. 756; Bragg v. Moberly, 17 Mo. App. 226; Byrd v. Vanderburgh, 168 Mo. App. 120; Scott v. Ry. Co., 168 Mo. App. 532; Lafferty v. K.C. Gas Co., 229 S.W. 753; Harris v. Railroad Co., 200 S.W. 112; Callison v. Eads, 211 S.W. 715; 46 C.J. p. 230, sec. 186; Scott v. Railroad Co., 168 Mo. App. 527; Ridge v. Johnson, 129 Mo. App. 541. (2) The court did not err in giving plaintiff's Instruction 3 nor in refusing defendants' Instruction 45. Toeneboehn v. Railroad, 298 S.W. 796; Ward v. Railroad, 277 S.W. 910. (3) The court did not err in giving plaintiff's Instruction 4 nor in refusing defendants' Instruction 44. Zumwalt v. Railroad Co., 266 S.W. 725; Dutcher v. Railroad, 241 Mo. 162; Chawkley v. Railroad, 317 Mo. 797; Chapman v. Railroad, 269 S.W. 688. (4) Plaintiff's Instruction 8 was proper because, there was abundance of evidence that the electric crossing bell did not ring before the collision. Many conditions might have caused the bell not to ring, such as electrolysis, worn contact points, or a "speck of dirt" between contact points, although there might not be anything about the bell itself otherwise defective. Clearly such instruction was proper under the evidence. Bachman v. Railroad, 274 S.W. 764. (5) The trial court properly permitted Mrs. Sevedge, the wife of plaintiff, to testify. Revised Statutes 1921, approved March 29, 1921, being a procedural and remedial act and authorized the reception of this testimony. Hughes v. Renshaw, 282 S.W. 1020; Howard v. Strode, 242 Mo. 227; O'Bryan v. Allen, 108 Mo. 231. (6) The verdict was not excessive. Dell v. J.A. Schaefer Const. Co., 29 S.W.2d 76; Porter v. Railroad Co., 28 S.W.2d 1035; Emerson v. Mound City, 26 S.W.2d 766; Messing v. Judge Dolph Drug Co., 18 S.W.2d 408; Wheeler v. Railroad Co., 18 S.W.2d 494; Maher v. Donk Bros. Coal Coke Co., 20 S.W.2d 888; Northern v. Chesapeake Gulf Fisheries Co., 8 S.W.2d 982; Gould v. Railroad Co., 290 S.W. 135, 315 Mo. 713; Skinner v. Davis, 280 S.W. 37, 312 Mo. 581; Hoffman v. Peerless White Lime Co., 296 S.W. 764, 317 Mo. 86; Timmermann v. St. L. Arch. I Co., 1 S.W.2d 791, 318 Mo. 421.
This case fell to the writer on reassignment after having been argued and submitted once in division and twice in banc. It is an action for personal injuries alleged to have been sustained by respondent, George L. Sevedge, in a collision with a passenger train operated by the Chicago Alton Railroad Company, as lessee, over the tracks of the Kansas City, St. Louis Chicago Railroad Company. The trial resulted in a judgment in favor of plaintiff for $12,500, from which defendants have appealed.
It appears from the evidence that plaintiff and one John Lewis were driving north in an automobile on Arlington Avenue which crossed defendants' railroad track in a rather thickly populated community about half way between Independence, Missouri, and Kansas City, Missouri. The highway ran north and south and the railroad extended in a southeasterly and northwesterly direction. East of this crossing and at a distance variously estimated from 200 to 1000 feet the railroad track curved to the south. West of the crossing it curved to the north. A street car track crossed under the railroad track about seventy-five feet southeast of the Arlington Avenue railroad crossing, and then crossed Arlington Avenue about 100 feet south of the Arlington Avenue railroad crossing. Plaintiff and his companion drove from the northwest into Arlington Avenue about seventy-five feet south of the railroad crossing and started north toward the crossing. The railroad track was on a high grade at that point and the highway approach from the south was steep. Plaintiff and his companion testified that the morning was foggy and they could see only a short distance on the railroad track. They said they stopped when they got about fifteen feet from the track and looked both ways but could see no train; that they then started over the railroad crossing and were struck by a train coming from the southeast. Plaintiff's companion who was driving the car thus described what happened:
"Q. Tell what happened on the crossing there where you were hit? A. As I drove up on the crossing I noticed the plank was loose. I drove very slow, had my car in low, and I got my right front wheel over the north rail, and something grabbed my steering wheel, and took me down the track there, and when I got my car stopped, I was about two feet or three feet off the plank, at the side of the crossing.
"Q. You started down the track which direction? A. To the west. And then I threw my car in neutral and looked, and I saw there was a board right out on the south side of the north rail and my wheel was right in between there. I reversed my car, backed up, and started to go ahead and had my car, the front wheel, just across the north track when the train came along and took me down, and that is the last, gentlemen, I can tell you until they had me in the hospital."
This witness further testified that his automobile was moving about three or four miles an hour as he approached the crossing and he could have stopped within two or three feet; that it was fifteen or twenty seconds from the time they got on the track until the train struck them. Plaintiff testified to substantially the same facts. He said that he observed the obstruction in the crossing; that the boards made a rattling sound; and the front wheels of the automobile commenced shaking and turned to the left on the track. Another witness testified that the boards at the crossing were loose and shaky and one board was missing. An automatic signal bell at the crossing was designed to start ringing when a westbound train was within 2100 feet and continue ringing until the train had passed over the crossing. The testimony was conflicting as to whether this bell was ringing prior to the collision and whether any signal was sounded by the approaching train.
Plaintiff's specifications of defendants' negligence were failure to give statutory signals; failure to construct and maintain crossing as required by law; permitting automatic bell to become and remain out of order so that it would not ring or warn; running said train at a high, unlawful, careless, negligent and dangerous rate of speed; and failure to slacken, stop or warn plaintiff under the humanitarian rule.
Defendants went to trial on separate answers each consisting of a general denial, plea of contributory negligence and plea to the jurisdiction.
Appellants assign error in the giving of instruction number 3, requested by plaintiff. This instruction is as follows:
"The court instructs the jury that if the jury find and believe from the evidence that on or about the 2nd day of June, 1921, plaintiff was riding in the automobile referred to in evidence upon Arlington Avenue in Jackson County, Missouri, where said Arlington Avenue intersects and crosses over the right of way, roadbed and railroad tracks of defendants at what is known as the Arlington Avenue crossing in Jackson County, Missouri, and that the same was a public and much used highway and that at said time and place defendant Chicago Alton Railroad Company was operating a locomotive and train of cars upon said right of way, roadbed and railroad tracks, if you so find, and that as the same approached and struck plaintiff and said automobile it was not under reasonable control but was running at a high, excessive and dangerous rate of speed, if so, and that plaintiff was in imminent danger and peril from the approach of said locomotive and train of cars and the proximity of danger arising from the speed and approach thereof, if so, and that the plaintiff did not realize said facts in time to escape therefrom by his own efforts and prevent being struck, if so, and that the defendant Chicago Alton Railroad Company by and through its agents, servants and employees in charge of said locomotive and train of cars could by using ordinary care have known all of the aforesaid facts, if you find such to be the facts, in time thereafter by the use of ordinary care and the means at hand to have sounded an alarm of danger and warned plaintiff of the foresaid imminent peril, if any, and the proximity of danger from such locomotive and train of cars so approaching him, if so, and thereby have brought to plaintiff a realization of the imminence of such peril, if any, and that by such warning plaintiff could have escaped and averted his said injuries, if so, and that defendant Chicago Alton Railroad Company failed to cause any danger alarm to be sounded and failed to warn plaintiff of the proximity of danger, if any, and thereby and by such failure, if any, defendant Chicago Alton Railroad Company was guilty of negligence, if any, and as a direct result of such negligence, if any, plaintiff was struck and thereby injured, if so, then your verdict must be for plaintiff and against both defendant Chicago Alton Railroad Company and defendant Kansas City, St. Louis Chicago Railroad Company, and this is the law under this instruction even though you should further find and believe from the evidence that plaintiff was negligent in getting into the position he was in at said time."
Counsel for appellants criticises this instruction chiefly because, as contended in his first petition for a rehearing, it "submitted to the jury an issue of primary negligence with a proviso at the end of the instruction that the negligence of plaintiff could not be offset against this primary negligence." The instruction did plainly require a finding that as defendant's train "approached and struck plaintiff and said automobile it was not under reasonable control but was running at a high, excessive and dangerous rate of speed," and this is substantially in the language plaintiff used in pleading primary negligence, but a verdict for plaintiff was not authorized on this finding alone. The jury was required to find further that "plaintiff was in imminent danger and peril from the approach of said locomotive and train of cars and the proximity of danger arising from the speed and approach thereof," as well as other circumstances constituting negligence under the humanitarian rule because of failure to warn.
Counsel for respondent endeavor to meet this criticism by citing Richardson v. Kansas City Railways Co., 231 S.W. 938, 941, and Foster v. Kansas City Railways Co., 235 S.W. 1070, 1073. In the Richardson opinion an instruction was not condemned which submitted the case on common-law negligence and conjunctively required a finding pertinent to the humanitarian doctrine, the latter being "merely one requirement more than was necessary." The instruction in that case, however, did not contain any statement covering the whole instruction that would result in an ambiguous or erroneous declaration of law when applied to the required findings. Also, in the Foster opinion an instruction was not disapproved which required a finding that a street car's "rate of speed was dangerous and not reasonably safe at said time and place, and that in operating said car at said speed, if it was so operated, the defendant was guilty of negligence, as `negligence' is elsewhere defined by these instructions," and also required a finding of other facts and circumstances constituting negligence under the humanitarian rule, but it is significant that even this instruction did not authorize a verdict for plaintiff if the jury found that plaintiff "failed to exercise ordinary care for her own safety as `ordinary care' is defined in these instructions." This closing admonition is in striking contrast to the last clause of Instruction 3 in the instant case, which in effect authorized a verdict of plaintiff on the required findings, one of which constituted primary negligence, even though plaintiff was guilty of contributory negligence. Whatever may be said as to the propriety of including acts of other negligence and acts of negligence bringing the case within the humanitarian rule in the same instruction, if they are so conjoined and qualified by other parts of the instruction as to tender a confusing or erroneous statement of the law, as in this instance, the instruction should be held prejudicial. In such case the error is not merely that of placing an additional burden upon plaintiff of which the defendant cannot complain. Where as here, contributory negligence was pleaded and presented in other instructions, it presents an apparent contradiction if not a positive misdirection. We hold that the giving of this instruction was reversible error.
In this connection counsel for appellants also assigns error in the trial court's refusal of defendant's withdrawal instruction to the effect that there was "no evidence that the train was negligent operated at an excessive rate of speed." This and other objections to instruction number 3 are not ruled as it is improbable that they will again arise in another trial of the case.
[2, 3] Counsel for appellants also insists that the trial court erred in giving instruction number 4, requested by plaintiff. This instruction submitted an issue under the humanitarian rule on the theory that plaintiff was in imminent peril from the approach of the train; that those in charge of the train knew, or by the exercise of ordinary care could have known that plaintiff was in peril, and by the exercise of ordinary care they "could have slackened the speed of said locomotive" and failed to do so; and that such constituted negligence which caused the collision and injury complained of.
We find no basis for counsel's suggestion that this instruction submitted the question of whether or not the engineer could have stopped the train and so avoided the accident. The word used was slackened, meaning slowed down in the sense that more time would have been required for the locomotive to reach the point of collision than if its speed had not been slackened.
The main objection urged against this instruction is that there was no evidence that the collision could have been thus delayed for a sufficient length of time to have permitted the automobile to clear the crossing. The fireman on this engine testified that the train was 75 or 100 feet east of the Arlington Avenue crossing when he first saw the automobile approaching the track; that he yelled and signaled the engineer to stop. The conductor testified that he felt the application of the brakes and then it "just seemed but a short time until we was grinding over that crossing." It further appears from the evidence that the front end of the engine when it stopped was about 1360 feet west of the crossing, and that the train approached the crossing at about forty miles an hour. There was also testimony that the engine crew coming from the east had a clear view of this crossing for a distance of about 1000 feet. There was no expert testimony or evidence other than the foregoing as to speed or distance within which the train could have been stopped. However, even if the train had never slackened its speed of forty miles and hour it would have required about twenty-three seconds to cover the approximate distance of 1400 feet within which it was actually stopped. According to the testimony of the fireman and conductor the engineer had succeeded in applying the brakes and they had taken hold before the train reached the crossing although none of the crew saw the automobile until the train was within 75 or 100 feet of the crossing. If the engine crew had observed the automobile in difficulty on the crossing when the train was 1000 feet cast of the crossing, as in the exercise of ordinary care they could have done under the evidence, the same handling of the engine would have permitted a slackening of speed for nearly two-thirds of the distance required to bring the train to a standstill. From such evidence alone, without the aid of expert testimony, the jury might well conclude without entering the field of speculation that any slackening of the speed of the train would have delayed its arrival at the crossing for an appreciable length of time. Where, as in Gann v. Ry., 6 S.W.2d 39, 41, 319 Mo. 214, it appears from the whole record that the driver of an automobile is conscious of the approaching train and is striving with engine going to clear the track and can do so if given approximately an instant more, the situation speaks plainly for itself to the lay mind without the aid of expert testimony. But in this case the occupants of the car said they knew nothing of the approach of the train until it was upon them. The automobile had run west with the right front wheel just north of the north rail until the front wheels were off the west end of the board crossing. The automobile was then put in reverse gear and backed up again on the crossing and started north with one or both of the front wheels just across the north rail when the train struck it about the middle or just behind the front wheels. We find no evidence whatever as to the speed of the automobile at the moment or what length of time it would have required to clear the crossing. In this state of the record the jury could only speculate as to whether or not slackening the speed of the train would have prevented the collision. Appellants' criticism of the instruction in this respect is well founded. It follows that appellants' withdrawal instruction as to this issue should have been given. Also, on a retrial the petition and instructions should be harmonized as to the position of the automobile when signals should have been given or the speed slackened.
Appellants next insist that the court erred in giving Instruction 8, at the request of plaintiff, which instruction is as follows:
"The court instructs the jury that while the issue of negligence of the defendants in maintaining a defective bell at the Arlington Avenue crossing at the time and place referred to in evidence is withdrawn from your consideration, nevertheless it is a question for the jury to decide as to whether or not the bell in question was ringing at the time and place referred to in evidence."
We find no reversible error in the giving of this instruction. Defendants' withdrawal instruction necessarily referred to "a defective bell." Defendants also offered and the court gave Instruction No. 19 putting before the jury the issue of whether or not the bell was ringing.
Mrs. Sevedge, wife of the plaintiff, was permitted to testify in his behalf, and appellants claim that was error. The disqualification of a husband or a wife to testify for his or her spouse was removed by the Act of 1921. [Laws 1921, p. 392.] The point made is that this injury occurred before this enactment although the trial was had long thereafter. However, this legislation goes to the remedy and is not a retrospective law within the meaning of that term as used in the Constitution. [Coe v. Ritter, 86 Mo. 277, 282; Clark v. Railroad, 219 Mo. 524, 532, 118 S.W. 40.]
Other assignments of error are presented by appellants but we deem it unnecessary to pass upon them for the reason that the circumstances upon which they arise will probably not be presented on a retrial of the cause.
For the reasons above stated the judgment is reversed and the cause remanded. All concur, except White, J., who dissents.