Bachman v. Quincy, Omaha & Kansas City Railroad

*56 GRAVES, J. Action for personal and property injuries occasioned by a collision between plaintiff’s automobile and defendant’s railway train in the city of Kirks-ville, Missouri. There were some four grounds of negligence pleaded, including the humanitarian doctrine. After the trial of the case the alleged negligence, as submitted by plaintiff, were limited to two grounds, i. e. (1) *57 the failure of defendant to give warning of bell or whistle as it approached a public street crossing, and (2) that defendant had always maintained an alarm bell at such crossing, and had so maintained it for some time, to the knowledge of the plaintiff, but that upon this occasion the defendant, although it had ample notice of the defect in such bell, had failed to put and keep the same in repair, so that it would signal the approach of a train upon defendant’s tracks. These two alleged failures are the ones submitted by the plaintiff, and the only ones relied upon by plaintiff in-the instructions. So, it would seem, that the humanitarian rule, as well as the exeessof-ordinance speed (as grounds of negligence) are abandoned, and questions concerning them are not now before us. The instructions for plaintiff are short, and we quote them. This because they must be the foundation for all complaints here. They read: “1. The court instructs the jury that while the law did not require or compel defendant to install and maintain an electric signal at the point where its said railroad crossed or intersected Franklin Street, in the city of Kirksville, Adair County, Missouri, but if you find and believe from the evidence, that defendant did install and maintain an electric crossing alarm or signal at said crossing, and if you further find that said Franklin Street was a public highway or street in said city, and if you further find and believe from the evidence that the plaintiff knew 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 drily 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, if said crossing bell was not ringing, unless plaintiff knew said train was approaching, or by the exercise of ordinary care and diligence might have so known. *58 “You. are therefore instructed that if you so find and if you further find and believe from the evidence that on the morning of October 11, 1922, plaintiff was driving* his automobile in a northerly direction on Franklin Street in said city, and approaching said crossing, and was struck and injured, and his automobile was damaged on said crossing by defendant’s train, and if you believe from the evidence that the plaintiff was unable to see the approach of defendant’s train on account of obstructions until he was within a few feet of defendant’s main track, and if you further find and believe from the evidence that defendant carelessly and negligently failed to cause the bell on said engine to be rung continuously for eighty rods before said engine reached said crossing, and that defendant negligently and carelessly failed to cause the whistle on said engine to be sounded at intervals for a distance of eighty rods before said train reached said crossing, and if you further find and believe from the evidence that the defendant negligently and carelessly permitted said crossing bell or signal to be and remain out of order and repair, and that the same would not operate, and that said crossing signal had been in such condition for a sufficient length of time for defendant, by the exercise of ordinary care on its part, to have discovered that said crossing* signal was in such condition, and to have repaired the same prior to said collision (if you find there was a collision), and if you further find that plaintiff knew defendant had installed and had been maintaining said signal and relied thereon, and that plaintiff had no knowledge that said crossing* bell or signal was out of order, and would not operate, and if you further find that said crossing bell or sigpal was not ringing or giving any warning to plaintiff of the approach of defendant’s said train, then you should find for the plaintiff, provided you further find that in so driving upon said crossing, plaintiff was in the exercise of the degree of care required of him as defined in other instructions, and that he was not guilty of negligence directly contributing to his injury as defined in other instruc *59 tions, and you are further instructed that the burden of proving contributory negligence on the part of the plaintiff, rests upon the defendant to prove the same by the greater weight of the credible evidence, and in determining* whether or not plaintiff was guilty of contributory negligence, or was in the exercise of due care, as defined in other instructions, you will take into consideration all the facts and circumstances shown by the evidence. “2. The court instructs the jury that it was the duty of the defendant, its agents and servants in charge of and operating its locomotive engine and train in approaching a public street or crossing to sound the whistle on said locomotive at intervals for eighty rods next before said crossing* is reached or to cause the bell on said locomotive to be rung continuously for eighty rods next before said crossing* is reached, and if said locomotive whistle was sounded only at point about one-quarter of a mile distant from said crossing* and the other signals were not given, as above stated, then defendant did not comply with its duty in the premises and was guilty of negligence. “3. You are instructed that negligence on the part of plaintiff which will prevent him recovering in this action, must be such as directly contributes to his injury and consists of the want of ordinary care. Ordinary care as used in these instructions means that degree of care which may be reasonably expected of an ordinarily prudent person in plaintiff’s situation at and just before the time the accident occurred, and in determining* whether plaintiff was using such care you should take into consideration all the circumstances surrounding him at the time. “4. The court instructs the jury that if your verdict is for the plaintiff, in assessing his damages you will take into consideration his age, the injuries sustained by him, if any, and the physical and mental pain and anguish endured by him on account of said injury, if any, together with such as he will necessarily endure in the future re- *60 suiting from his said injury, if any, also his loss of time and of his earning capacity, if any, together with his medical and hospital bills incurred in an effort to cure himself of his injuries, if any, and assess his. damages at such sum as you believe from the evidence will reasonably compensate him for the same, and if you find for the plaintiff for the damages to his said automobile, you will allow plaintiff such sum therefor as you find and believe will be a reasonable compensation for the damages to said automobile, if any, not to exceed the sum of $20,-000 for his personal injuries and not to exceed the sum of '$600 for his automobile, in all not to exceed the sum of twenty thousand and six hundred dollars. “5. The court instructs the jury that nine or more of your number may return a verdict; if all concur your verdict shall be signed by your foreman only; if nine or more and less than the entire panel concur your verdict shall be signed by those.concurring; or agreeing thereto.” We have omitted the instructions to the form of the verdict. It suffices to say that plaintiff had a verdict for $10,300' and from a judgment upon such verdict the defendant has appealed. The points made by defendant, and the pertinent facts, we leave to the opinion. *61 *60 I. This case can and should be simplified. When the plaintiff abandons certain alleged grounds of negligence, they drop out of the case as thoroughly as if they had never been pleaded. Plaintiff’s instructions indicate clearly to what grounds of negligence he clings. These are the only ones for determination here. Cases are simplified and shortened in this manner, and no effort should be made to go beyond the issues made by the pleadings and the instructions. If the instructions are narrower than the pleadings, we must confine ourselves to the issues made by the instructions. In other words the issues must be measured by both the pleadings and the instructions, however broad the field may be under the evidence. One other thing as a fore *61 word, is, if the sufficiency of the evidence is challenged by defendant, it must appear that there is no substantial evidence to support the verdict. This court does not weigh evidence to determine where the greater weight lies. That is a matter purely resting with the trial court. If there is substantial evidence upon which the verdict may be founded, counsel are wasting their time and the time of this court in urging a demurrer to the evidence. This situation too often occurs. The proper issues made by pleadings, evidence and instructions will be taken up in the course of the opinion. II. On the two grounds of negligence, upon which the case was finally submitted to the jury, there is no question as to the right of the plaintiff to have the jury to pass upon those questions. In other words, there is substantial evidence (for plaintiff) tending to show that there was a failure to continue to sound the whistle at intervals, after it was first sounded at the statutory point, and a failure (in lieu of failure to sound the whistle) to ring the bell. This evidence made a case for the jury upon one question of alleged negligence. The verbatim details of this evidence serve no useful purpose. Franklin Street in Kirksville is one of the principal streets of the city, so far as traffic is concerned, and runs north and south. The railroad crosses it at practically right angles, such railroad running east and west. Plaintiff was on Franklin Street coming from the south and going toward the north. In approaching the tracks, when a train was coming from the east (as was the train which struck plaintiff’s automobile and injured him) the conditions to the east of Franklin Street are material. There were obstructions which precluded a clear view to the east, the direction from which the train was coming. These consisted of a building on the east side of Franklin Street, as well as a string of automobiles (with tops up) between the street line of this building and the main line of defendant’s' tracks. Plaintiff was driving a Dlodge automobile, and says that *62 he looked in both directions, before he attempted to cross the tracks, and that as to the east of Franklin street, he looked at the only point where a train could have been seen, and saw no approaching train. He says that he heard no approaching- train, at any time. There was' a point south of the brick building- .(on the east side of Franklin Street) where a view of a train from the east could be seen. It was at this point that he looked, and there was no other point where a train could be seen, except a point within eight to ten feet of the main track (the track upon which the colliding train came) and this limited view was obstructed by a line of automobiles (tops up) evidently waiting for the train which was coming, but which was past due. The personal testimony of the plaintiff was to the effect that defendant maintained at this dangerous crossing a signal bell, the purpose of which was to advise approaching pedestrians or automobilists of the appxoach of a train, but that such bell gave no signal of an approaching train. In this situation he approached the tracks, and as he said, when he could first see the train, he was suddenly placed in the dilemma of determining whether or.not he could stop his car in time to avert the collision, or whether or not he could clear the track by speeding up his car. His evidence is to the effect that he could not stop his care in time to avert the collision and that he was forced to the other alternative of speeding up his car in order to clear the track. At least he (under pressed circumstances) chose the latter course, and his car was caught in a collision, and as a result he was injured. These are the real pertinent facts, from the plaintiff’s viewpoint. It is from his side of the evidence that we must judge the action of the court in submitting the case to the jury. Other evidence shows the maintenance of this signal bell, and further shows that it was out of order at the time, and had been out of order for such time as to have given the defendant ample time to have had it in working order prior to the date .of injury. These are vital *63 facts to be considered in the discussion of other questions urged. But they, without further note, suffice to show that plaintiff made a case for the jury upon both questions of negligence submitted. The crossing (owing to the surroundings) was a dangerous one. So much so that a signal bell had been installed. We need not stop to discuss the question as to whether or not the defendant owed to the public such a duty. For this case, it suffices to say that defendant recognized its duty by installing the signal bell, and such recognition of duty imposed the further duty of keeping it in repair, so that the public would not be deceived thereby. In this case it appears that plaintiff and others using this street relied upon this signal bell, which they had the right to do. So, under, practically undisputed facts, the plaintiff made a case for the jury. Matters of error, or alleged error will be noted in subsequent paragraphs. III. A motion to strike out certain portions of the plaintiff’s petition was filed and by the court overruled. The plaintiff had said in his petition, after charging the installation and maintenance of this signal bell, that he looked and saw no indication from it of any approaching train: ‘ ‘ That when said bell was not ringing and said signal was not moving, it was an invitation by defendant to all persons to cross said track, and was a representation by defendant to said persons that no train was approaching’ said crossing. ’ ’ This was but an isolated sentence in a long allegation of the plaintiff, to the effect that defendant had installed such signal bell, and that, after installing it for the benefit of the public, it was negligence not to keep it in repair. The objection is as to the use of the word “invitation.” This word is used in the pleadings more in the sense that, in the absence of the ringing of this bell, the traveler had the right to presume that there was no approaching train. Absent the ringing of the bell it was in a sense an invitation to the traveler to proceed *64 ■upon' his journey. This objection is too attenuated to deserve real consideration. The objection was that there was a pleading of a conclusion rather than a fact. This motion to strike out, founded upon like reasons, struck at two other portions of the petition. They have no more substance than the one we have outlined. To elaborate, would be at the expense of brevity in opinions. The motion was properly overruled upon all grounds. IY. Taking in order the questions briefed and argued here, the next one is that the verdict is excessive. Usually this comes as a last proposition in cases of this kind. However, it is a question which has to be met in most of the personal injury cases, and it is immaterial as to the order adopted by counsel. There were two men in plaintiff’s car. Plaintiff was the driver. It is urged that he jumped out, “ran fifty yards and fell, and when he was picked up he was apparently unconscious and shortly afterwards -had some kind of a ‘fit.’ He received no personal injuries. His convulsions were hysterical.” Such are the charges of appellant. These charges must bear the scrutiny of the evidence. "Where a person, through the negligence of a railroad, is placed in a position of peril, and must' thereby choose (hurriedly and without deliberate consideration) his course of conduct, he is not strictly bound to such a course of conduct as would a man not subject to imminent peril. We need not cite cases for hornbook law. In such case the defendant is liable for the injuries incurred, although they result from the act of the plaintiff. To re-state, what has often been stated, if through the negligence of a defendant, a plaintiff has been placed in peril, such plaintiff is not bound to any ordinary degree of care in extricating himself from such peril. Iiis acts are not gauged by the acts of ordinary men under different circumstances. His acts must be gauged by the circumstances surrounding him,, and if the circumstances so surrounding him are the result of the *65 negligence of the defendant, then snch negligence follows to the ultimate results. Of course the acts of the plaintiff must be the acts of a reasonably careful person under the peculiar facts of his dangerous position. When this is said, all has been said. When the plaintiff fell unconscious, and was taken to a restaurant that his wife ran, the claim agent of defendant appeared upon the scene. At the suggestion such agent he was taken to the Grimm Hospital. So that in this case there is no contest as between lawyers for plaintiff, and representatives of defendant, as to which were there first. Defendant’s agent was faithful to his job. Plaintiff has no recollection of things after the collision. Appellant has, under the rule of this court, made an assignment of errors. These assignments are seven in number. There is no assignment of error as to the verdict being excessive. In such situation that question is deemed to have been waived. We find this general assignment of error as Assignment 7: “Overruling motion for new trial.” The abstract of record shows that the motion for new trial contained nineteen grounds, and the brief shows only seven assignments of error, the last of which is the general one quoted by us,supra. Absent a specific assignment of error as to ex-cessiveness of verdict we are not required to' go into that question, By the general assignment that there was error in overruling the motion for new trial, we are not compelled to review each of the nineteen grounds of that motion, unless assignments of .error here have been based thereon. It should be said that plaintiff was taken to a hospital which looked after patients for this defendant, and no doctors from that hospital were used by defendant. In the f oregoing proposition we have not overlooked the practice of this court (where there is no formal assignment of error at all in the brief) to treat the points made (if in form to constitute assignments of error) as assignments of error, although the practice is not in strict conformity to our rule. We have no desire to change *66 this practice, but it does not apply here. In this case the defendant did assign its alleged errors, and exeessiveness of verdict was not one of them. Having made an assignment of errors, all other matters are deemed to have been waived. V. Of the assigned errors we have thus far disposed of Number I, relating the overruling’ of defendant’s motion to strike out parts of the petition.- We have likewise disposed of Assignment No. 3, which relates to the demurrer to the evidence. There were sufficient facts shown to permit plaintiff’s ease to go to the jury, and the alleged matter of contributory negligence was likewise a question for the jury. As we are now on instructions we will take the questions up a little out of order. In Assignment No. 4 it is alleged that there was error in giving plaintiff’s Instruction No. 1. This instruction we have set out in full, along with other instructions given for the plaintiff. To our mind this Instruction No. 1, for the plaintiff is carefully drawn, and cautiously worded. It is not subject to the objections urged. In the objections urged it is said that the instruction submitted to the jury the question as to whether or not the plaintiff relied on the ringing of the bell, when in fact there is no evidence that he so relied. This objection overlooks the evidence. True it is, that plaintiff does say that he tried to determine whether or not a train was coming by looking and listening, but he further says that he was familiar with this signal bell, and how it operated, and that he also looked at it for a signal of an approaching train, and it gave no signal. It might be that in words he did not say that he relied upon the bell, but all facts testified to by him show that, while he took other precautions, he also relied upon this signal bell, and did not know that it was out of repair. It was out of repair, and according to evidence, had been out of repair for such length of time for defendant to have fixed it prior to this accident. He did not rely upon the bell exclusively, and the *67 instruction, when read does not so show. There was evidence tending to show that the bell had been out of order for such time as to impute notice of its condition to defendant and had the defendant promptly acted the bell (on the morning of the accident) would have signaled the approaching train, and plaintiff would not have been injured. Instruction No. 3 is criticized under this point. It is set out in full. It goes to the question of contributory negligence, and has therein a definition of ordinary care. We see no error in this instruction. The court gave for the defendant Instruction No. '5', which reads: “The fact that the crossing signal bell was not ringing did not give plaintiff the right to drive into the danger zone without looking or listening for a train, where he could see or could hear while yet in a place of safety. If from all the facts and circumstances in evidence in the case you believe plaintiff drove into the danger zone without looking or listening for an approaching train, where by looking or by listening, he could have become aware of the approach of the train while in a place of safety, your verdict should be for the defendant.” This instruction fully protected defendant upon the matter of contributory negligence. As to the bell it may be broader than the defendant would be entitled to, but it got the full benefit of it. VI. The suit was brought in Grundy county, and not in Adair County, where the injury occurred. It is not questioned that jurisdiction over defendant was not properly secured in Grundy County. The situation, however, furnished an excuse to take depositions, rather than have the witnesses present. The depositions of (two doctors from the Osteopathic School of Medicine at Kirksville were taken. These were Drs. Hain and Thwaites. The latter was an expert X-ray picture man. He took an X-ray picture of the plaintiff, and says that he turned it over to Dr. Hain, so that he could examine it and prescribe for the patient. *68 Both of these men gave depositions before the case was tried in court. Dr. Thwaites testified that he took the picture, and what the picture showed as to the condition of the lower portion of the spine. Dr. Hain testified that he got the picture from Dr. Thwaites, and examined it and told what was shown thereby. He described the same condition of the lower spine as described by Dr. Thwaites. Both testified that the school kept all such pictures, and would not permit them to take them out of the school, and hence they did not have them when testifying. Their evidence did disclose just where they were and had defendant really wanted them, it knew where to find them. Before the trial another X-ray picture was taken of plaintiff’s spine, and this picture was used in the trial. Its showing was along the same line as the one to which Drs. Hain and Thwaites testified. After Dr. Hain examined the picture, he ordered the plaintiff in a plaster cast, and the propriety of this treatment is not and cannot be questioned. Defendant urges that they had no privilege of cross-examining on account of the absent pictures. Before the trial defendant was fully advised where it was, and could have gotten it by proper process. There can be no question of Dt. Thwaites’ right to testify from his own knowledge as to what a picture taken by him showed. So far as he was concerned the picture was beyond his control. Nor do we thfqk that Dr. Hain, who shows his perfect familiarity with X-ray pictures, was incompetent to testify what a picture showed, when he examined it in order to know what treatment to prescribe. The fact that he did not have and could not get the picture did not preclude his evidence. He told defendant where the picture was, and if it in any way contradicted the testimony of Dr. Hain, the defendant would have had it at the trial. The process of the court was open to it, and its production could have been enforced. It would seem that defendant did not care as much for the picture then *69 as it does now. No error can be predicated upon this situation. VII. The court of its own motion gave two instructions. It is charged that these constituted error. The instructions answer the charge, and we quote them as follows: “The court instructs the jury that a person in attempting to cross a railroad track' in an automobile at an ordinary street crossing, where there are no signals installed by the railroad company itself to warn persons of approaching trains, it is the duty of such person so attempting to cross such track to look and listen for approaching trains, and if by looking he could see the train, or by listening he could hear its approach in time to stop the automobile or alight therefrom in safety and thus prevent the accident, it is his duty to do so. But, in this case, if the jury believe and find that the defendant had installed a signal at the crossing of Franklin Street with the defendant’s track, mentioned by the witness, for the purpose of giving alarm, to persons attempting to cross such crossing, by bell or signal, or both, and that the plaintiff was familiar with the manner in which such signal worked, the location, surroundings and circumstances of the crossing, and relied on such signal for such warning, then he was not required to exercise more than reasonable and ordinary care in looking and listening for approaching trains, that is, such care as an ordinarily prudent person would exercise under similar circumstances, having regarded to his knowledge of such crossing signal, if he did have such knowledge, and the question is solely for the jury to say whether the plaintiff did exercise such reasonable care and diligence in looking and listening for the approach of such train under the circumstances, and if the plaintiff failed to exercise such care and diligence, then the finding and verdict of the jury should be for the defendant. “Although the jury should believe and find from the evidence that the defendant had installed an electric *70 signal or warning’; device at the crossing of its railroad track with Franklin Street, and that the same was out of repair or not in working condition at the time of the collision mentioned by the witnesses, yet this would not relieve the plaintiff of the duty of not heedlessly or recklessly attempting to cross said track, or of the exercise of reasonable and ordinary care for his own safety while attempting- to cross such track; nor, would it authorize' the plaintiff to enter upon such crossing- or attempt to .cross the same, if he saw or heard the approaching train, or knew that a train was approaching said crossing, and, even though the plaintiff ’s view of the track might have been obstructed by other objects yet he would not have been relieved of the duty to exercise reasonable and ordinary care for his own safety by looking and listening for an approaching train, and if he failed to use such reasonable and ordinary care, then he cannot recover and your verdict should be for the defendant.” A reading of these instructions shows that the defendant got all, and perhaps more, then it was entitled to get. Where a railroad installs a signal bell, it might be well ruled that a traveler could rely upon the device which was installed for his safety. But these instructions go further, and required of the traveler ordinary care for his own protection, notwithstanding the signal bell. They required ordinary care to look and listen' for an approaching train. These instructions were as favorable to defendant as could be asked by it. Another thought occurs to us. The instructions proceed upon the theory that defendant was under no obligations to put in a signal bell system. The character of this crossing (with its surroundings) would indicate a duty to either install a bell or keep a watchman there. All the facts indicate a very dangerous crossing, and the duty of defendant is measured by the dangerous condition. This, however, was resolved against plaintiff and for defendant, to plaintiff’s injury. VIII. Complaint is made as to the refusal of Instructions O, D, E, F and Ú, asked by defendant. The *71 first one mentioned (Instruction C) will serve to illustrate. It reads: “Under the facts and circumstances in evidence in this case, the fact that the crossing signal device was not operating’ is immaterial. Therefore, in arriving; at your verdict, you will wholly disregard all evidence and re-mar^s regarding the said crossing signal device.” The others follow the trend of this one. The whole theory is so patently wrong, that we need not discuss each one of them. The defendant recognized a duty upon its part to install a signal bell. The condition of the crossing, indicates that there was a duty to do something’ for the protection of travelers. Having* recognized that duty, it is clear that we need not discuss the question of duty. This whple line of instructions is a disowning of a duty which defendant had fully recognized. This defendant cannot do. The foregoing covers all the' assignments of error made by defendant. We need go no further. Defendant has reached a conclusion of the conceived errors, and has pointed them out. In this court we should go not further than the specific assignments. Each of these we have considered, and from them all we conclude that the judgment should be affirmed. It is so ordered. All concur, Atwood, J., not sitting.