Opinion
No. 42129.
November 12, 1951. Motion for Rehearing or to Transfer to Court en banc Denied December 10, 1951.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, AT INDEPENDENCE, JOHN R. JAMES, J.
Richard H. Beeson, David P. Dabbs and Dean F. Arnold, all of Kansas City, for appellant.
J. J. Board, E. E. Thompson, and Sam Mandell, all of Kansas City, Popham, Thompson, Popham, Mandell Trusty, Kansas City, of counsel, for respondent.
In this reassigned railroad crossing case Iva May Dwinell was awarded $10,000 for her personal injuries. Mrs. Dwinell was riding south on U.S. Highway 41 in the front seat of a 1940 Hudson automobile with her husband when the automobile was struck by a west-bound freight train three miles north of Marshall. The railroad's liability was submitted upon ability to have "stopped said train and thereby have avoided said collision, * * * or to have slackened the speed of said train sufficiently to have avoided the * * * collision," under the humanitarian doctrine. Upon this appeal the railroad claims that the plaintiff was not entitled to rely upon a train speed of forty miles an hour but was required to prove that the collision could have been avoided at a speed of forty-five miles an hour. It is urged, under the evidence, that there was a period of time during which Mrs. Dwinell could have gotten out of the car and that the zone of peril as to her was limited to the period of time after which she could not have avoided injury by leaving the automobile. In this connection and in these circumstances it is urged that the trial court should have directed a verdict for the railroad because "there was no evidence of the location of the train when plaintiff's peril became imminent because of her inability to leave the automobile to a place of safety" and there was no evidence, after discovery of her peril, that the train could have been stopped or its speed so retarded that Mr. Dwinell would have been able to move the automobile to a place of safety across the tracks and clear of the train. This being true it is also urged that the court erred in giving plaintiff's instruction one hypothesizing liability upon this theory under the humanitarian doctrine.
The train crew said that the speed of the train was forty to forty-five miles an hour and one of the crew insisted that the speed of the Dwinell automobile as it approached the crossing was about the same as the speed of the train. And, one of the defendant's witnesses who had followed the Dwinell automobile for some distance said that the speed of the automobile was thirty-five to forty miles an hour. On cross-examination of the plaintiff counsel read from her deposition the statement that when she first saw the train it was "Probably going around 40 miles an hour, something like that." The various estimates of the speed of the train did not come from the testimony of a single witness, Krause v. Pitcairn, 350 Mo. 339, 352-353, 167 S.W.2d 74, and the plaintiff was not bound by the most unfavorable view of the evidence but was entitled to the more favorable hypothesization of forty miles an hour. McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161, 164; Trower v. Missouri-Kansas-Texas R. Co., 347 Mo. 900, 149 S.W.2d 792, 798.
From an east curve in the track it was 1000 feet, slightly downgrade, to the crossing. One of the plaintiff's witnesses said that at 1000 feet a portion of an automobile on the crossing was visible and that at 900 feet all of the automobile was plainly visible and there was nothing to obstruct the train crew's view. One of the plaintiff's expert witnesses said that at forty miles an hour, including reaction time, the train could have been stopped in 850 to 900 feet and at forty-five miles an hour in 900 feet with reasonable safety to the train and crew. The engineer began an emergency stop when the train was 100 feet from the crossing and it was his opinion that he could and did stop in 1000 to 1100 feet. He said, "Had I applied my brakes back there (1000 feet), possibly I would have got stopped or possibly have slowed up enough that I wouldn't have done a lot of damage." The train crew claimed that when they first saw the Dwinell automobile it was about 400 feet north of the crossing and the train was about the same distance east and that the automobile traveled at an undiminished speed, swerved from the west side of the blacktop highway to the east shoulder and back southwest diagonally across the pavement and directly in front of the train. But the plaintiff testified that her husband had been driving thirty-five to forty miles an hour and when they came to a highway crossing sign, 413 feet north of the track, he began to slow down. She looked in both directions and neither saw nor heard a train. Her husband slackened the speed of the automobile to two or three miles an hour, could have stopped it in a foot or two, as he neared the tracks. She continued to look and there was no train in sight. Mr. Dwinell started across the tracks and just as the front wheels of the automobile crossed the north rail he "killed the motor in some way," and the automobile stopped. He pushed on the starter but the motor did not start. Just about then he put the automobile in gear and she saw the west-bound train rounding the curve. She said, "Oh, Guy, there is the train at the curve" and started to get out. He said, "No, don't try to get out; I will make it." She said she thought she might be better off in the automobile, was "excited or something," and did not get out. He pushed on the starter with the car in gear and the car jerked along about one and a half or two feet south across the tracks. He kept pushing on the starter and the automobile kept jerking, moving to the south, one and a half or two feet at a time. She thought they were doing very well. The automobile was moving south at a speed of one to one and one half miles an hour when the train, at an undiminished speed, struck the automobile just over the left rear fender.
In these circumstances there can be no question but that the plaintiff made a submissible humanitarian case. In effect the railroad tacitly concedes, if there was no duty on Mrs. Dwinell to leave the automobile, that the plaintiff's evidence demonstrated, prima facie, a cause of action and liability under the humanitarian doctrine. It is a permissible inference that the speed of the train could have been slackened more readily than stopped. There was evidence that at a speed of forty or forty-five miles an hour a proper slackening of speed beginning 900 feet from the point of impact would have afforded an additional thirteen to fifteen seconds for the automobile to clear the crossing. The jury could reasonably draw the inference that an effective slackening of the speed of the train would have afforded the automobile the additional time needed to clear the path of the train. Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961. This is not an "oblivious" humanitarian case. Flint v. Chicago, B. Q. R. Co., 357 Mo. 215 207 S.W.2d 474, and is in nowise comparable to the pedestrian cases. Clerk v. Atchison, T. S. F. R. Co., 319 Mo. 865, 6 S.W.2d 954. It has been carefully pointed out that the principal opinion in Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482, overruled prior cases which had restricted the recognized causes of peril to obliviousness and inability to escape "and laid down the broad rule that it is of no consequence what brings about or continues the peril, even though it be sheer hardihood or recklessness. This covers the whole range of self-exposure to peril from mere negligent inattention to utter, audacious and continuing disregard of known and avoidable danger." State ex rel. Kansas City Pub. Serv. Co. v. Bland, 35 Mo. 868, 875, 191 S.W.2d 660, 662; Grubbs v. Kansas City Pub. Serv. Co., 329 Mo. 390 45 S.W.2d 71. In Bresler v. Kansas City Pub. Serv. Co., 239 Mo.App. 228, 186 S.W.2d 524, 528, which is State ex rel. Kansas City Pub. Serv. Co. v. Bland, supra, the court was discussing an instruction but said, "It would appear that the only thing plaintiff could have done to avoid her injury was to alight from the automobile; but to tell, or to intimate, to the jury that plaintiff could not recover if she had an opportunity to alight from the automobile was clearly improper." In Grotjan v. Thompson, Mo.App., 140 S.W.2d 706, 708 it was claimed that there was a duty on the deceased to get out of an automobile but the court said that the decreased's remaining in the automobile might constitute contributory negligence but was not a defense under the humanitarian doctrine. In that case it was claimed as to an automobile stalled on the tracks that the engineer owed no duty to stop under the humanitarian doctrine until he saw or should have seen the motorist, "not the automobile." in a position of peril but the court said, "It will not do to say an engineer who sees an automobile standing in the path presently to be occupied by his engine may proceed as though the way were clear until he is able to ascertain whether or not there is a human being in the automobile." In Hunter v. Fleming, Mo.App., 7 S.W.2d 749, 751, the court said as to a refused defendant's instruction, "We think that plaintiff was not as a matter of law under the duty to have alighted from the automobile. This instruction entirely ignored the evidence which tended to show that plaintiff screamed and waved her arms to signal the motorman, and had reason to believe that the street car would stop before striking the automobile. It could not be said as a matter of law that plaintiff should have anticipated that her husband would not have been successful in getting his automobile off the track before the street car, if it failed to stop, reach the point of collision." There was evidence to support the hypothesis that the train could have stopped or its speed have been sufficiently reduced and it was not error for the court to submit the hypothesis in instruction one.
Before hypothesizing ability to stop or slacken speed the instruction hypothesized "imminent peril." The appellant does not indicate just what facts are omitted or what facts could have been added to the instruction in this respect but insists nevertheless that it is prejudicially erroneous "because it does not hypothesize facts constituting imminent peril, but submits a bare legal proposition." It is not necessary to quote this portion of the instruction because counsel candidly admit that previous decisions, Bryant v. Kansas City Rys. Co., 286 Mo. 342, 228 S.W. 472; Perkins v. Terminal R. Ass'n, 340 Mo. 868, 102 S.W.2d 915, have approved similar submissions without further factual hypothesis of imminent peril. Counsel's insistence is that the question should be re-examined and that plaintiff's instructions be required to contain a more complete and detailed factual hypothesis of imminent peril. But humanitarian instructions are too complicated as it is and more refinements should not be imposed unless absolutely necessary and the necessity for the requirement in the circumstances of this case is not made to appear upon this record. We are not confronted here with an automobile's stopping or almost stopping as it approaches a crossing and suddenly accelerating its speed and the consequent problem of correctly and precisely limiting the zone of peril and the difficulties involved in the use of "approaching" or "entering into" a position of imminent peril, words and phrases not employed in this instruction. Cable v. Chicago, B. Q.R. Co., Mo.Sup., 236 S.W.2d 328, 334; Smithers v. Braker, 341 Mo. 1017, 1025, 111 S.W.2d 47.
As indicated, instruction one is an approved, conventional humanitarian instruction applicable to the facts and circumstances of this case. After hypothesizing the plaintiff's right to recover and the defendant's liability under the humanitarian doctrine and after excluding the contributory negligence of either Mr. or Mrs. Dwinell as a factor in her getting into a position of imminent peril the instruction concludes that the plaintiff may recover "even though you find from the evidence that a warning of the approach of the train was given by sounding a horn upon defendant's engine and by the electric signal located at the crossing in question." It is insisted that this second "even though" clause makes the instruction prejudicially erroneous. It is first argued that it injects antecedent negligence into the case by directly referring to the primary charges of primary negligence of failure to warn by whistle or automatic crossing signal. In the second place it is said that the instruction tells the jury that the plaintiff may recover even though the plaintiff and her husband were negligent "and even though defendant was not guilty of any primary negligence, but it does not tell the jury that they cannot find against defendant on primary negligence. It leaves primary negligence in the case as an additional ground for recovery."
Unquestionably a plaintiff's humanitarian instruction is prejudicially erroneous if it injects or permits as a basis of recovery in addition to the hypothesized humanitarian negligence some ground of primary negligence. Reiling v. Russell, 348 Mo. 279, 153 S.W.2d 6; Wholf v. Kansas City, C.C. St. J.R. Co., 335 Mo. 520, 73 S.W.2d 195. This clause of the instruction does not in anywise refer to contributory negligence; that subject was plainly and properly covered in the first "even though" clause. Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384. But, the precise objections to this clause of the instruction may not be considered abstractly and apart from the actualities of the record. In addition to humanitarian negligence the plaintiff pleaded and testified to primary negligence of failure to warm by whistle or automatic signal. But on these issues the railroad's evidence was literally overwhelming. The railroad proved by its train crew and by disinterested witnesses that the diesel horn whistled again and again and that the automatic crossing signal was working before, during and after the collision. Possibly for this reason the plaintiff abandoned her claims of primary negligence and submitted her cause solely upon humanitarian negligence of failure to stop or slacken the speed of the train. So there was some reason for the plaintiff's telling the jury that she was entitled to recover under the humanitarian hypothesis of her instruction even though signals were given. From a mere reading of the clause it is obvious that it does not inject or permit as a basis of recovery under the humanitarian doctrine the assignments of primary negligence. On the contrary, it attempts to exclude from the jury's determination of humanitarian negligence any consideration of acts of primary negligence. White v. Kansas City Pub. Serv. Co., 347 Mo. 895, 898, 149 S.W.2d 375, 377. The instruction as a whole is not only an abstractly correct hypothesization of liability under the humanitarian doctrine but it is also a proper hypothesization of the facts and circumstances of this case. The plaintiff was entitled to have the jury find the hypothesis of her humanitarian instruction and she was entitled to recover on that hypothesis despite the overwhelming evidence as to the signals. It has been suggested that the practice of employing this or similar clauses in humanitarian instructions may be abused but the problem of unfair abuse or of improper use of this or similar clauses will, of course, depend upon the particular case and its circumstances when presented. The instruction, in the circumstances of this record, is a precisely correct statement of law and of fact and it was not prejudicially erroneous in this case.
Prior to the trial of the cause the plaintiff submitted interrogatories to the defendant. Interrogatory Nine read: "Did any member of your train crew or anyone acting for you, obtain the names and addresses of any persons known to have been present thereat by being found there by any member of your crew at the time and place of the collision in question?" The answer was "No." Upon the trial of the cause the railroad produced a witness, Mr. Vaughan, who had followed the Dwinell automobile for some distance and was but fifty yards behind it when the collision occurred. He testified that the automatic signals, was working and that the engine's signals, bells and whistles were given. He described the speed and course of the Dwinell automobile and, in general, was an excellent and apparently disinterested witness for the railroad. It does not appear from the record whether plaintiff or his counsel knew of this witness. In part plaintiff's counsel cross-examined Mr. Vaughan along this line:
"Q. I say, you told the trainman that you witnessed the collision, I presume? A. I did.
"Q. You told them at the scene that you witnessed it? A. I saw it.
"Q. Did you say anything at all to the highway patrolman about having witnessed this? A. No, sir. * * *
"Q. You had already told the representative of the railroad that you had witnessed that collision by that time, hadn't you? A. Yes, that — I don't know whether he is the fireman or brakeman.
"Q. But one of the crew, you had already told him that you had witnessed the collision, is that right? A. That's right."
It was also developed that he had not given his name to a deputy sheriff accompanying the highway patrolman and that subsequently he had been interviewed by a representative of the railroad. On re-direct examination he said that he merely told the train crew that he had seen the collision but had not given them his name. He said that he did not know how they got his name. In rebuttal the court permitted plaintiff's counsel to read to the jury interrogatory nine and the negative answer and it is now urged that the reading of the interrogatory and the answer constitute such prejudicial error that the railroad is entitled to a new trial. It is urged that the interrogatory and answer did not tend to rebut any material testimony of any witness and was prejudicial in that is unfairly and unjustly discredited the witness. Both parties argue this question without the citation of authority to support their respective positions. It is questionable that the interrogatory and the answer tended to rebut any material testimony given by Mr. Vaughan. 31 C.J. S., Evidence, § 2, p. 506. The question and answer were merely read to the jury and in the circumstances the bare episode is not sufficiently impressive or significant one way or another to compel the decision that it was prejudicially erroneous. R.S.Mo. 1949, Sec. 512.160 (2). In the absence of a more compelling demonstration of prejudicial effect it may not be said that the trial court abused its discretion in permitting the reading of the interrogatory and the answer. Wild v. Pitcairn, 347 Mo. 915, 149 S.W.2d 800, 804.
Finally it is urged that the court erred in not discharging the jury because of "(1) unfair and unfounded insinuations of plaintiff's counsel to the effect that the citizens of the community had circulated petitions complaining about the crossing and (2) unfair appeal to the jury for sympathy because plaintiff's husband was killed in the same collision." As to the first matter, in cross-examining one of the witnesses called by the railroad the following is the entire occurrence as it transpired:
"Q. You had been having some trouble out there at that crossing, hadn't you? A. No, sir.
"Q. Don't you remember about the farmers out there getting up a petition complaining about that dangerous crossing — Mr. Dabbs: (interrupting) That will be objected to. I think it is misconduct on the part of counsel, and I move that the jury be discharged.
"The Court: The motion to discharge is overruled."
As to another witness there were no objections to this cross-examination:
"Q. Have you been called or interviewed by the Missouri Pacific about that crossing before this collision? A. No, sir.
"Q. Nothing like that happened there at all? A. No, sir.
"Q. Nothing in the neighborhood that you know anything about? A. Nothing.
"Q. You hadn't heard anything there in the community about this crossing? A. No."
As to the second matter, counsel's improper argument, it should be noted that Mr. Dwinell was killed in the collision and the fact was testified to by several witnesses. The following is the entire episode complained of:
"Back there on January 6, 1949, when she was struck and horribly injured — and there is no doubt about it — and was sent hurtling through the air, her husband's life was snuffed out —
"Mr. Dabbs: (interrupting) We will object to that, because there is a separate lawsuit pending for the death of her husband, so this is highly prejudicial, injecting that into this case; and I move that the Court declare a mistrial.
"The Court: The Court will not declare a mistrial, but you gentlemen should disregard the statement that the husband's life was snuffed out.
"Mr. Dabbs: You are overruling the motion, I understand?
"The Court: Yes."
We assume that neither the cross-examination nor the argument complained of had any place in the case; they certainly had no bearing on any essential, meritorious issue the jury was to determine. We may not, however, review the matter as though the trial court had granted a new trial because of improper conduct or argument. Jones v. Kansas City, Mo.Sup., 76 S.W.2d 340. On the face of it the matters complained of were not so manifestly inflammatory or prejudicial that a general objection or a motion to discharge the jury was sufficient to compel such action on the part of the trial court as to assure the removal of any prejudicial effect of either the examination or the argument. Dodd v. Missouri-Kansas-Texas R. Co., 353 Mo. 799, 184 S.W.2d 454. The only action requested in either case was a discharge of the jury. There was no objection to the cross-examination of the second witness and the usual preliminary or foundation-laying objections to the argument were not made. Even so the trial court admonished the jury to disregard the improper argument and thereby indicated that the court did not put its stamp of approval upon the argument. Paul v. Dunham, Mo.App., 214 S.W. 263. Weighing the occurrences in view of the nature of the objections or lack of objections and considering the court's action, it may not be said that the conduct complained of was so prejudicial that the court abused its discretion in not discharging the jury. Holtz v. Daniel Hamm Drayage Co., 357 Mo. 538, 545, 548, 209 S.W.2d 883; Schwinegruber v. St. Louis Pub. Serv. Co., Mo.App., 241 S.W.2d 782, 787.
Accordingly the judgment is affirmed.
WESTHUES, C., concurs.
BOHLING, C., dissents.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.