Opinion
December 31, 1938.
1. RAILROAD CROSSINGS: Submissible Case. In an action for the death of a boy when a truck he was driving was struck at a railroad crossing by defendant's train where the view was obstructed by a box car or cars and the noise of machinery in an adjacent elevator tended to prevent hearing the approaching train, whether a case was made out on the failure of the trainmen to sound the bell or whistle was for the jury.
Under the circumstances where the evidence showed that the approach of the truck to the track was slow it could not be said that the driver was guilty of contributory negligence as a matter of law.
2. RAILROAD CROSSINGS: Failure to Stop. In an action for the death of a boy when struck by a railroad train in driving his truck across the railroad track, an instruction which authorized a verdict for defendant if the driver failed to stop and listen before driving upon the track and if such failure directly contributed to his death, was erroneous because the answer of defendant did not plead that the driver failed to stop.
There being no statute in either Missouri or Illinois, where the accident took place, requiring a driver to stop before entering upon a railroad track, the failure to stop would not be negligence as a matter of law.
The giving of an instruction which is broader than the pleading is error.
3. TRIALS: Railroad Crossings: Consistency in Submitting Case. A litigant cannot submit his case on a theory which contradicts his own positive evidence and theory.
In an action for the death of a boy driving a truck when struck at a railroad crossing by defendant's train, where the defendant's engineer testified that the truck stopped with the wheels on the rail of a passing track, the defendant was not entitled to an instruction directing a verdict against the plaintiff if the truck failed to stop.
The defendant could not by its evidence take the position that the defendant stopped before entering upon the track and then in its instruction deny recovery on the ground that the driver failed to stop before entering upon the track.
Appeal from Circuit Court of City of St. Louis. — Hon. J. Wesley McAfee, Judge.
REVERSED AND REMANDED.
C.O. Inman for appellant.
(1) Instruction 1, given at the request of the defendant, was erroneous and prejudicial to the plaintiff because it placed the burden of disproving contributory negligence of decedent upon the plaintiff. The burden of proof is a matter affecting the remedy as to which the law of Missouri governs, and hence the burden of establishing contributory negligence of decedent should have been placed upon the defendant. Menard v. Goltra, 40 S.W.2d 1053; Connole v. E. St. L. Sub. Ry. Co., 102 S.W.2d 581; Williams v. E. St. L. Sub. Ry. Co., 100 S.W.2d 51; Manar v. Taetz, 109 S.W.2d 721; Szuch v. Ni Sun Lines, 332 Mo. 476, 58 S.W.2d 473; Clark v. Atchison, etc., Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Brewer v. Silverstein, 64 S.W.2d 291; Raymen v. Galvin, 229 S.W. 747; Barr v. Mo. Pac. Ry. Co., 37 S.W.2d 927; Chaar v. McLoon, 304 Mo. 250, 263 S.W. 177. The Illinois rule placing the burden of proving due care on plaintiff was not invoked in the instant case because the defendant did not demur to the amended petition, but assumed the affirmative burden of alleging contributory negligence. In this situation the burden of proof as to that issue was upon the defendant where it was placed by the pleadings. Menzenworth v. Mut. Life Ins. Co., 249 S.W. 113; Menard v. Goltra, 40 S.W.2d 1053. (2) Instruction 5, given at the request of the defendant, was erroneous and prejudicial to the plaintiff for the following reasons: (a) It directed a verdict for the defendant if the decedent failed to stop before going upon the railroad track, and was thereby broader than the amended answer, which did not allege a failure to stop. Riley v. Independence, 258 Mo. 671, 167 S.W. 1022; Telaneus v. Simpson, 12 S.W.2d 920. (b) It directed a verdict for the defendant if decedent failed to stop and listen, without requiring the jury to find that his failure was negligence. Under the Illinois law it is not negligence per se to fail to stop, nor is it negligence per se to fail to listen. The question is one for the determination of the jury. T.H. Ind. Railroad Co. v. Voelker, 129 Ill. 540; C. N.W. Ry. Co. v. Dunleavy, 129 Ill. 132; B. O.S.W. Railroad Co. v. Then, 159 Ill. 552; Niemi v. Sprague, 288 Ill. App. 372. (c) It is never negligence on the part of a motorist to fail to stop unless both seeing and hearing are ineffectual without so doing. In the instant case there was no evidence that hearing was ineffectual without stopping, hence the issue should not have been submitted to the jury. Monroe v. C. A. Ry. Co., 280 Mo. 483; Brown v. Railroad Co., 252 S.W. 55; Donohue v. Ry. Co., 91 Mo. 357; Weigman v. Railroad Co., 223 Mo. 699; Campbell v. Ry. Co., 175 Mo. 173. (d) The law of Illinois prescribes no arbitrary standard of conduct for a motorist approaching a railroad crossing, but what a motorist should or should not do to be in the exercise of ordinary care is for the determination of the jury. The instruction was erroneous in failing to require a finding of negligence. Gills v. N.Y.C. St. L. Ry. Co., 342 Ill. 455; Dee v. Peru, 343 Ill. 42; Greenwald v. B. O. Ry. Co., 332 Ill. 627; McCullough v. St. L. Pub. Serv. Co., 86 S.W.2d 334; DeBow v. C.C.C. St. L. Ry. Co., 245 Ill. App. 158; Mahaney v. K.C., etc., Co., 46 S.W.2d 817; Clark v. Bridge Co., 24 S.W.2d 143, 324 Mo. 544.
Jones, Hocker, Gladney Grand for respondent.
(1) Defendant's Instruction 1 did not place burden of disproving contributory negligence on plaintiff. Bleil v. Kansas City, 70 S.W.2d 913; Dietz v. Magill, 104 S.W.2d 707; Diamont v. Stein, 116 S.W.2d 273. (2) Burden of proof as to contributory negligence is a matter of substantive law. Koebel v. Tiemann Coal Material Co., 337 Mo. 561, 85 S.W.2d 519; Sheehan v. Term. Railroad Assn., 336 Mo. 709, 81 S.W.2d 305; Hiatt v. St. L.S.F. Ry. Co., 308 Mo. 77, 271 S.W. 806; Restatement of the Law, Conflicts of Laws, chap. 9, secs. 355, 380, chap. 12, sec. 595; 11 Amer. Juris. 523; Fitzpatrick v. International Ry. Co., 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801; Central Vt. Railroad Co. v. White, 238 U.S. 507, 59 Law Ed. 1433, 35 Sup. Ct. 865. (3) The answer pleaded the Illinois law regarding the burden of proving contributory negligence, so as to bring the cases announcing it within the Missouri court's judicial notice. R.S. 1929, sec. 806; Greenwald v. B. O. Ry. Co., 332 Ill. 627, 164 N.E. 142; Dee v. Peru, 343 Ill. 36, 174 N.E. 901; Provenzano v. Ill. Cent. Ry. Co., 357 Ill. 192, 191 N.E. 287. (4) Under Illinois law the burden of proof is on the plaintiff to disprove contributory negligence. Greenwald v. B. O. Ry. Co., 332 Ill. 627, 164 N.E. 142; Dee v. Peru, 343 Ill. 36, 174 N.E. 901; Provenzano v. Ill. Cent. Ry. Co., 357 Ill. 192, 191 N.E. 287; Williams v. Penn. Ry. Co., 235 Ill. App. 49. (5) By pleading contributory negligence respondent no more assumed the burden of proving it than did the appellant, in hypothesizing freedom from contributory negligence in his instructions, assume the burden of disproving it. Bleil v. Kansas City, 70 S.W.2d 916. (6) Where an automobilist's view of approaching trains is obstructed at a crossing, he is guilty of contributory negligence in failing to stop and listen. Garland v. C. N.W. Ry. Co., 8 Ill. App. 579; Monroe v. C. A. Ry. Co., 280 Mo. 483, 219 S.W. 68; Central Coal Coke Co. v. K.C. So. Ry. Co., 215 S.W. 914. (7) The evidence established that appellant's decedent was guilty of contributory negligence as a matter of law. Monahan v. Johnson, 197 Ill. App. 633; Hatzenbuehler v. Ill. Cent. Ry. Co., 206 Ill. App. 114; Cline v. C.M. St. P. Ry. Co., 198 Ill. App. 163; Burns v. C. A. Ry. Co., 223 Ill. App. 439.
This case involves a crossing accident. Alva J. Rucker, a fifteen year old boy was driving a small truck on Green Street in Virdin, Illinois. The street crossed the railroad tracks of the defendant at a right angle. The railroad track was slightly higher than the street. Several railroad tracks crossed this street near the point of accident. A spur track was the easternmost track and some eight to fifteen feet west of this track was the northbound main line track. The morning of the accident Rucker was driving his truck westwardly. There was evidence that a box car or cars were standing on the spur track immediately south of Green Street. About one hundred feet south of Green Street and immediately east of the spur track was a grain elevator and about nine hundred feet south of the grain elevator and beyond the point where the spur track ended were some oil tanks and wooden buildings which were from seven to nine feet east of the northbound main line track.
A gasoline motor was running in the elevator at the time of the accident and the motor together with the elevator machinery made some noise. There was testimony to the effect that the box car and buildings obstructed the view of a northbound train to a westbound motorist. Rucker was driving the truck slowly and a northbound passenger train traveling fifty-five to sixty-five miles an hour hit the truck on this crossing and Rucker was instantly killed. There was testimony to the effect that the truck was traveling four or five miles an hour. Testimony also showed that the noise from the gasoline motor and the machinery in the elevator interfered with a motorist's hearing the noise of an approaching train. The engineer testified that the truck stopped with its wheels on the west rail of the switch track and then started forward. Other witnesses for defendant testified that the car stopped near, at, or on, the main track. Witnesses testified both ways on the question of whether or not the bell was ringing or a whistle sounded as the crossing was approached by the train. Plaintiff, as the administrator of the deceased brought this suit under the Wrongful Death Statutes of Illinois which were properly pleaded. The case was submitted upon only two allegations of negligence, namely; the failure to ring the bell and the failure to sound the whistle. The answer pleaded a general denial together with contributory negligence on the part of the deceased and the answer properly pleaded the Illinois law as to contributory negligence. The Railroad Company had judgment below and this appeal is by the plaintiff below.
The questions presented on this appeal involve only the correctness of the instructions given by the defendant below and the further question of whether or not a submissible case was made by the plaintiff below.
We think that it was proper to submit the case to the jury because the crossing in question was, under the evidence, a dangerous crossing and was the principal crossing in a town of four thousand people, and because of the location of buildings to the south and, as the evidence showed, a box car or cars to the south thereby obstructing the view of a westbound motorist and the noise of the machinery making hearing difficult. It was such a crossing that an approaching train should give the statutory warning signals and under the evidence showing noise and obstruction it would have been improper to have withdrawn this case from the jury. [Simpson v. St. L. S.F. Ry. Co., 334 Mo. 1126, 70 S.W.2d 904; Connole v. I.C. Railroad Co., 21 S.W.2d 907; Sisk v. C., B. Q. Railroad Co., 67 S.W.2d 830; Wagner v. Railroad Co., 352 Ill. 85.] To hold that the decedent was guilty of contributory negligence as a matter of law, under the evidence as introduced in this case, especially the evidence as to the slow approach of the deceased to the track from which reasonable men could differ as to his caution, and after viewing the evidence in a most favorable manner for the plaintiff, would be confining this important question within limits much narrower than heretofore has been done by the courts of Illinois or Missouri in the cases cited by respondent such as Monahan v. Johnson, 197 Ill. App. 633; Hatzenbuehler v. I.C. Railroad Co., 206 Ill. App. 114; Cline v. C., M. St. P. Railroad Co., 198 Ill. App. 163; Burns v. C. A. Railroad Co., 223 Ill. App. 439; Dowler v. Kurn et al., 119 S.W.2d 852. These cases did not deal with sets of facts as favorable to plaintiff as are the facts in the instant case. It was entirely proper for the jury to determine whether or not the decedent was negligent in going upon this track as he did.
Instruction No. 5 given by the Railroad Company reads as follows:
"You are instructed that if you find from the evidence herein that as Alva J. Rucker approached and went upon the railroad crossing mentioned in evidence in this case his view toward the south was obstructed by a freight car or cars or by anything else, and if you also find from the evidence herein that on said occasion said Alva J. Rucker failed to stop and listen, and that by stopping and listening he could have discovered the train approaching the crossing, in time to avoid being struck and killed by said train, and that such failure, if any, on his part, directly contributed to cause his death, then plaintiff cannot recover in this case, and your verdict herein must be in favor of the defendant, even though you may further find and believe from the evidence herein that defendant's train was running at a high and excessive rate of speed, and that the defendant's agents, servants an employees in charge of the operation of the locomotive on said train wholly failed to sound the whistle or ring the bell on said locomotive."
This instruction directed a verdict for the defendant provided he jury found that the decedent failed to stop and listen. The amended answer did not plead that the decedent failed to stop before going on to the track. Some witnesses on the part of respondent stated that the decedent actually stopped before going upon the track. No statute or case in either Missouri or Illinois has been cited to the effect that decedent was by law required to stop before entering upon the track. Therefore, the failure to stop is not negligence as a matter of law and an instruction requiring the decedent in this case to stop is beyond the pleadings and contrary to the evidence of the respondent. It has been held in numerous cases that the giving of an instruction which is broader than the pleading is error. This rule would apply as well to an affirmative defense pleaded as to a petition. This is true because the burden of proving an affirmative defense is upon the defendant. This rule requires the defendant to carry the burden in proving the contributory negligence of a plaintiff or decedent. Therefore, an instruction given by the defendant must advise the jury, or point out in some way, what pleaded acts or omissions on the part of the decedent, if any, and as found by the jury from the evidence, would constitute contributory negligence. [Clason v. Lenz, 332 Mo. 1113, 61 S.W.2d 727; Schide v. Gottschick, 329 Mo. 64, 43 S.W.2d 777; Bobos v. Krey Packing Co., 317 Mo. 108, 296 S.W. 157; Owens v. McCleary, 313 Mo. 213, 281 S.W. 682; Hanke v. St. Louis (Mo.), 272 S.W. 933; Harrington v. Dunham, 273 Mo. 414, 202 S.W. 1066.]
There is another rule in this State which has been violated by this instruction and that is the rule holding that a litigant cannot submit his case on a theory which contradicts his own positive evidence and theory. Plaintiff's engineer testified that "the automobile stopped with the wheels on the west rail of that passing track." No doubt that is the reason why respondent did not plead a failure to stop. Yet, this instruction directed a verdict against plaintiff if the automobile "failed to stop." Unless there is something in the record to indicate that such evidence was due to mistake, "a party cannot be permitted . . . to later deny what he, himself, claims to be the truth and that is why he is bound by the evidence of the witnesses he produces to prove the allegation of his pleadings." [Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353.] The respondent here can not by its evidence take the unequivocal position that the decedent stopped before entering upon the track, and then in its instruction deny recovery by the plaintiff on the ground the decedent failed to stop before entering the crossing. [Pentecost v. St. L.M.B. Term Railroad Co., 334 Mo. 572, l.c. 578, 66 S.W.2d 533; Dilallo v. Lynch, 340 Mo. 82, l.c. 87-8, 101 S.W.2d 7.]
Appellant has abandoned his allegation of error in the giving of Instruction No. 6 for the defendant. Since this case will have to be re-tried because of the error in giving Instruction No. 5, it will not be necessary for us to pass upon other assignments of error in the case as such alleged errors will probably be avoided at a subsequent trial.
For the reasons hereinabove stated this case is reversed and remanded. All concur.