Opinion
December 26, 1941. Rehearing denied January 6, 1942.
1. — Courts. The decisions of the Supreme Court are binding on the Court of Appeals.
2. — Appeal and Error. Where the Supreme Court, on appeal from judgment in the first trial of case, held that there was involved an issue as to the applicability of the humanitarian doctrine, and evidence on second trial of case was not materially different, the Court of Appeals, on appeal from judgment in second trial of case, was required to rule that issue as to applicability of the humanitarian doctrine was for the jury.
3. — Railroads. Instruction in death action against railroad, that though deceased negligently drove truck against side of train, yet if employee in charge of train saw, or could have seen by ordinary care that truck was in a position of peril and could thereafter have warned deceased so as to prevent the collision, but negligently failed to do so, recovery could be had for death, was not erroneous on ground that it authorized jury to find that deceased was in a position of peril and approaching a position of peril at the same time.
4. — Appeal and Error. Where alleged fact that certain instruction was in conflict with another instruction was not called to the trial court's attention in motion for new trial, the point was not properly preserved for the Court of Appeals on appeal.
Appeal from Circuit Court of Stoddard County. — Hon. J.V. Billings, Judge.
AFFIRMED.
Thomas J. Cole and A.M. Spradling for appellant.
(1) Appellant offered and the court refused his demurrer at the close of respondent's case and at the close of all the evidence in the case. The cause was submitted to the jury under the last chance, or humanitarian doctrine. Appellant submits that there was no evidence in the case under which the cause could be submitted on that theory, and that the demurrers to the evidence should have been sustained and the court committed error in overruling them. (a) When last seen by the fireman, deceased was 100 feet from crossing, traveling at a rate of speed between twenty and twenty-five miles per hour. At this rate of speed, according to the evidence, he could have stopped his truck within twenty to fifty feet. Deceased was not in a position of imminent peril and the enginemen were under no duty to sound the whistle or ring the bell. Baker v. Wood 142 S.W.2d 83; Roach v. Kansas City Public Service Co., 141 S.W.2d 800; Hilton v. Terminal Railroad Association, 137 S.W.2d 520; State ex rel. Snider v. Shain, 137 S.W.2d 527; Thomasson v. Henwood, 146 S.W.2d 88; Camp v. Kurn, 142 S.W.2d 772; Swain v. Anders, 140 S.W.2d 730. (b) According to the evidence the truck was in a place of safety and not in a position of peril, and the enginemen had the right to assume that the driver of the truck would stop before he reached the crossing and collided with the box cars. Poague v. Kurn, 140 S.W.2d 13; Thomasson v. Henwood, supra; Clark v. Atchison, T. S.F. Ry. Co., 6 S.W.2d 954; Elkin v. St. Louis Pub. Serv. Co., 74 S.W.2d 600; Stanton v. Jones, 59 S.W.2d 648; Camp v. Kurn, supra; Guyer v. Mo. Pac. Ry. Co., 174 Mo. 344; Markowitz v. Met. St. Ry. Co., 186 Mo. 350. (c) The enginemen were not required to sound the whistle or ring the bell merely because deceased was approaching the railroad crossing in his truck. When last seen, the deceased was in a place of safety and traveling at a rate of speed at which his truck could be stopped before reaching a place of danger. At this point there was nothing to indicate that deceased was unaware of the train on the crossing and, under such circumstances, no duty rested upon the enginemen to give any alarm. They had the right, under the law, to assume that deceased would not drive his truck from a place of safety into a place of danger. Thomasson v. Henwood, supra; Poague v. Kurn, supra; Hilton v. Terminal Railroad Association, supra; Buehler v. Festus Mercantile Co., 119 S.W.2d 961; Baker v. Wood, supra; State ex rel. Snider v. Shain, supra; Roach v. K.C. Pub. Serv. Co., supra. (d) Deceased was driving his truck at a rate of speed between twenty and twenty-five miles per hour. The evidence shows that the truck could have been stopped within a distance of between twenty to fifty feet. The truck was equipped with good brakes and in perfect running condition and, regardless of the evidence, the court will take judicial notice of the fact that, if it had been traveling at a speed of twenty to twenty-five miles per hour, it could have been stopped within twenty to thirty feet, and, if traveling at a speed of twenty-five to thirty miles an hour, it could have been stopped in much less than 100 feet. Crane v. Sirkin Needless Moving Co., 85 S.W.2d 911; Chawkley v. Wabash Railroad Co., 297 S.W. 20; Johnson v. Mo. Pac. Ry. Co., 72 S.W.2d 889; Spoeneman v. Uhri, 60 S.W.2d 9; Cross v. Wears, 67 S.W.2d 517; Dowler v. Kurn, 119 S.W.2d 852. (e) The respondents offered the fireman as their witness. He is the only witness that testified as to the distance of the truck, or the lights on the truck, from the crossing when last seen. His testimony showed conclusively that the driver of the truck was, at that time, in a place of safety, being 100 feet from the crossing. No other witness was offered on this point and respondents are bound by his testimony. Wells v. Lusk, 188 Mo. App. 63; Walradt v. St. Joseph Ry., Light, Heat Power Co., 48 S.W.2d 93; McLain v. Atlas Ins. Co., 67 S.W.2d 849; Williams v. Excavating Foundation Co., 93 S.W.2d 123. (2) The collision and death of deceased was due to the sole negligence of the driver and the court should have directed a verdict for appellant. Shields v. Keller, 153 S.W.2d 60; Stanich v. Western Union Tel. Co., 153 S.W.2d 54; Smithers v. Barker, 111 S.W.2d 47; Doherty v. St. Louis Butter Co., 98 S.W.2d 742; Borgstede v. Waldbauer, 88 S.W.2d 373; Watts v. Mousette, 85 S.W.2d 487. (3) The court erred in giving Instruction P-1 for the following reasons: (a) The instruction contained declarations which have been condemned by the Supreme Court. Buehler v. Festus Mercantile Co., supra; State ex rel. Snider v. Shain, supra; Hilton v. Terminal Railroad Association, supra; Evans v. Farmers' Elevators Co., 147 S.W.2d 593; Roach v. K.C. Pub. Serv. Co., supra; Hanks v. Anderson-Park, Inc., 143 S.W.2d 314. (b) Instruction No. P-1 given on behalf of respondents is in conflict with Instruction No. 10-D given on behalf of appellant. Smithers v. Barker, supra.
L.E. Tedrick and Phillips Phillips for respondent.
(1) The Supreme Court has held that the evidence in this case made a prima-facie case under the humanitarian doctrine. Zickefoose v. Thompson, 148 S.W.2d 784. (2) In so ruling this litigation the Supreme Court followed previous cases based on facts similar to those in this case. Womack v. Mo. Pac. Ry., 337 Mo. 1160, 88 S.W.2d 368; Melenson v. Howell, 344 Mo. 1137, 130 S.W.2d 560; Hinds v. C.B. Q. Ry., 85 S.W.2d 165; Lynch v. Baldwin, 117 S.W.2d 273; Herrell v. Frisco Ry., 322 Mo. 551, 18 S.W.2d 485; Homan v. Mo. Pac. Ry., 334 Mo. 61, 64 S.W.2d 624; Hencke v. St. L. H. Ry., 335 Mo. 393, 72 S.W.2d 798; Chawkley v. Wabash Ry., 317 Mo. 782. 297 S.W. 22; Zumwalt v. C. A. Ry., 266 S.W. 725; Rice v. Frisco Ry., 52 S.W.2d 749; Roques v. Butler Co. Ry., 264 S.W. 474; Tavis v. Bush, 280 Mo. 383, 217 S.W. 274; Eppstein v. Mo. Pac. Ry., 197 Mo. 735; Crews v. K.C. Public Service Co., 341 Mo. 1090, 111 S.W.2d 54. (3) In this case the circumstances show that deceased was oblivious of the presence of the train, as shown by his approaching it at undiminished speed; the fact that other people could not see it, and his inquiry of the witness Githens as to what hit him. In "oblivious" cases the Supreme Court holds that the "danger zone" is not limited by the distance in which the vehicle in question could be stopped, while that might be the criterion in "inescapable" cases. Womack v. Mo. Pac. Ry. Co., supra; Hinds v. C.B. Q. Ry., supra; Lynch v. Baldwin, supra; Homan v. Mo. Pac. Ry., supra; Melenson v. Howell, supra; State ex rel. v. Shain, 137 S.W.2d 529; Crews v. K.C., etc., Co., supra; Trusty "Constructing and Reviewing Instructions", p. 149; Mayfield v. K.C. Southern, 337 Mo. 79, 85 S.W.2d 116; Nagle v. Alberta, 53 S.W.2d 289; Gardner v. Park, 343 Mo. 899, 123 S.W.2d 158; Perkins v. Terminal, 340 Mo. 868; 102 S.W.2d 915; Buehler v. Festus, 343 Mo. 139, 119 S.W.2d 961. (4) Appellant in Point 1 (consisting of five subdivisions) of its brief has cited a great number of cases, none of which, however, have been decided since, or in any way affect or overrule the opinion of the Supreme Court, in this very case, and which opinion is the law of the case and must be followed until overruled by the court that rendered it, and this regardless of whether or not the opinion might be thought to be in conflict with some prior decision of the Supreme Court or Court of Appeals on a somewhat similar state of facts. Const. of Mo. Amend. 1884, Art. 6, Sec. 6; Calvert v. Hall, 251 S.W. 414; Gauck v. Advance Finance Co., 17 S.W.2d 576; Consolidated School Dist. v. New Madrid Co., 227 Mo. App. 221, 52 S.W.2d 425; Kick v. Franklin, 137 S.W.2d 514. (5) Defendant's contention that the court should have directed a verdict for it on sole negligence of deceased is answered completely by the opinion of the Supreme Court holding that the question of defendant's humanitarian negligence was for the jury. (6) Instruction P-1 was proper. It did not require the jury to find that deceased was in and approaching a position of peril, or that deceased was approaching a position of peril, or was about to enter a position of peril. It required the jury to find that deceased was approaching the crossing and in a position of peril of collision with said train. He was required to be in a position of peril while approaching the railroad crossing. Plaintiff's instruction followed the formula in the frequently cited case of Banks v. Morris Co., 257 S.W. 482, 302 Mo. 254.
This is an action for damages in the death of Laverne Roy Zickefoose, a minor, which occurred at Neelyville, Missouri, on the 10th day of February, 1937. The suit was instituted by the parents of the deceased in the Circuit Court of Butler County, on the 6th day of May, 1937. On application for a change of venue by appellant, the cause was transferred from Butler County to Stoddard County. The cause was tried in the Circuit Court of Stoddard County on the 24th day of January, 1938, resulting in a verdict of the jury for defendant. On the 26th day of January, 1938, the plaintiffs filed their motion for a new trial which was sustained by the court on the 3rd day of March, 1939, and, on the same day and at the same term, the defendant filed his application and affidavit for an appeal to the Supreme Court. The application for an appeal was sustained and defendant appealed said cause. The ruling of the trial court was sustained in an opinion rendered by the Supreme Court in 148 S.W.2d 784.
This cause was again tried in the Circuit Court of Stoddard County on the 7th day of May, 1941, resulting in a verdict in favor of the plaintiffs in the sum of $2,000 and defendant has appealed from the verdict and judgment of the court in said cause.
We have carefully read the evidence as presented by the abstract before us, and have read the case as considered by the Supreme Court reported in 148 S.W.2d beginning at page 784, and we find no difference in the pleadings and no material difference in the facts presented to us from those minutely described in the opinion of the Supreme Court, so we deem it not necessary for us to detail the facts here, but refer those interested to the opinion by the Supreme Court for the facts in this hearing.
The appeal is presented to us under three separate assignments of error briefed by the appellant, and we shall consider these in the order presented.
The first of these assignments (considered under five separate subheads), is stated as follows:
"Appellant offered and the court refused his demurrer at the close of respondent's case and at the close of all the evidence in the case. The cause was submitted to the jury under the last chance, or humanitarian doctrine. Appellant submits that there was no evidence in the case under which the cause could be submitted on that theory, and that the demurrers to the evidence should have been sustained and the court committed error in overruling them."
We think it is sufficient for us to say that this very question has been decided by the Supreme Court when this case was before it, in which that court said, at page 792 of 148 S.W.2d:
"Since Brakeman Davidson testified the train was barely moving, we think it fair to assume it did not exceed the ordinary walking speed of the average man, which we have judicially noticed is two or three miles per hour, or 2.9 feet to 4.4 feet per second. [McGowan v. Wells, 324 Mo. 652, 666, 24 S.W.2d 633, 639.] It moved six to twenty feet before the collision, according to the evidence, which means the movements spanned several seconds — as many as seven seconds, giving the testimony the interpretation most favorable to respondents, as we must do. During that time the truck was bearing down at twenty to twenty-five miles per hour, or twenty-nine to thirty-seven feet per second. The conclusion mathematically follows that the truck must have been well over 100 feet from the track when the train movement began. It was at that time that the fireman told the engineer the truck was coming, showing he thought the situation was perilous. The engineer denied it. But whether the fireman did nor did not warn the engineer, or if he did, whether he warned him adequately, the fact remains that no warning signal was given with the engine whistle. Several of the train crew testified the whistle was sounded three times when the train started to back up, but there was substantial evidence to the contrary. Taking the latter as true, and not meaning to rule as a matter of law that the deceased could have checked the speed of the track enough to save his life after the whistle was sounded, if it had been sounded, still we think it was a question about which average men might reasonably differ, and therefore for the jury."
This court has frequently held, as well as the other courts of this State, that decisions of the Supreme Court are binding upon us. [Gauck v. Advance Finance Co., 17 S.W.2d 576; Consolidated School District v. Parma Bank, 52 S.W.2d 425.]
We must decide this point against the appellant.
Under the second assignment briefed, it is said:
"The collision and death of deceased was due to the sole negligence of the driver and the court should have directed a verdict for appellant."
Under the ruling of the Supreme Court in this case, we must rule this point against the appellant, for that court has said that it was a question for the jury as to whether or not under the humanitarian doctrine the defendant's negligence caused the death.
The third and last point briefed complains of error in giving Instruction P-1 for the plaintiff, which instruction is as follows:
"The Court instructs the jury that even though you may find and believe from the evidence introduced in the trial of this case that deceased Laverne Roy Zickefoose was guilty of negligence that directly contributed to his own death and that he negligently drove his truck in which he was riding against the side of defendant's train at the time and place mentioned in evidence, yet, if you further find and believe from the evidence that defendant's employees in charge of the engine of said train, saw or could have seen by the exercise of ordinary care, the truck in which deceased was riding, approaching the crossing on which defendant's train was at the time and in a position of peril of collision with said train (if you find) and knew or could have known by the exercise of such degree of care that deceased was oblivious (if you find) of the presence of said train on said crossing, in time thereafter to have warned deceased of the presence of said train on said crossing with the means at hand and without injury to said train or the persons thereon and thus prevented the said collision (if you so find) and that defendant's said employees negligently failed to do so and that as a result of such negligent failure, if any, on the part of defendant's said employees, deceased drove said truck into the side of said train and as a result received injuries from which he died on the same day in Butler County, Missouri, then and in that event your verdict will be for the plaintiffs, if you further find and believe that plaintiffs were the parents of said Laverne Roy Zickefoose and that he died at the age of seventeen years, leaving no wife or minor child or children surviving him."
The appellant contends that this instruction has been condemned by the courts, and cites several cases in support of that contention. We have read those cases, but deem it unnecessary to consider them separately here. It is sufficient to say that the instruction, quoted above, used in this case is different in some respects from those considered in the opinions cited by appellant. The gist of the argument presented here is that a person cannot be in a position of peril and approaching a position of peril at the same time. And some of the opinions cited by appellant so state. A careful reading of this instruction will show that it does not contain such words. This instruction contains these words: ". . . that defendant's employees . . . saw or could have seen by the exercise of ordinary care, the truck in which deceased was riding, approaching the crossing on which defendant's train was at the time and in a position of peril of collision, etc."
We think this instruction in its form given properly informed the jury, and that to give it in its present form was not reversible error. It contains elements necessary in a humanitarian case under the facts as presented here. [Banks v. Morris Co., 257 S.W. 482, 302 Mo. 254; Reiling v. Russell, 153 S.W.2d 6, l.c. 10.]
It is also contended here that Instruction P-1 is in conflict with Instruction 10-D given on behalf of the defendant.
Respondents call our attention to the fact that this point was not called to the attention of the trial court in the motion for new trial. An examination of the motion so shows. It follows that the point was not properly preserved for this court on appeal. [Harwell v. Magill (Mo.), 153 S.W.2d 362, 364.] The judgment is affirmed. Fulbright, J., concurs; Blair, P.J., not sitting.