240 Mo. 507 | Mo. | 1912
Negligence. Plaintiff sues for $10,000 damages for the death of her husband and, cast below on a demurrer to hfer evidence, appeals.-
Morrison is a way-station on the main line of the Missouri Pacific railroad on the east side of Osage county. Gasconade is the first way-station east of Morrison on the same railroad and is located near the west bank of the Gasconade river in Gasconade county. Hermann is the capital of Gasconade county and the
On, the 9th day of November, 1907, one Frank boarded defendant’s train as a passenger at Washington and took passage to Hermann, near which place he lived. Drowsy from liquor he straightway fell asleep on the train and, passing Hermann, continued both bis slumber and trip to Gasconade where he got off. By this time he was partly sober, but, as if the hair of the dog was good for the bite, at once began drinking himself into a worse befuddled condition, in which predicament we leave him for the present.
Taking up another thread of the story, at about five o’clock of the morning of November 9, 1907, Hermann Baecker (husband of plaintiff) left his home six miles away to go to Morrison, there to take passage on one of defendant’s trains east to Hermann, to do some banking business. What bitter ill wind blew him elsewhere, or how and why he got to (or off at) the village of Gasconade is dark; but 11 a. m. of that day finds him there in company with Frank in a tippling house called Chill’s saloon south and east of defendant’s depot.
At that time there was an engine coupled to a freight train and headed east with steam up, standing on the side track at Gasconade. At that very time also a regular passenger train was due to pass west on the main line. We infer from a bit of testimony that Frank and decedent planned to interview the conductor of that freight train to see if he would carry them both east to Hermann. At any rate they left the saloon in company at that time and walked north on a little path (connecting the saloon and depot) to the tracks, there they turned west at a right angle around the nose of the freight engine, and proceeded toward the depot. Presently Mr. Baecker was struck by the
Attending to the pleadings, the petition alleges a customary user of the track by pedestrians at the point of the accident with the forbearance and tacit consent of defendant for many years; that the track was straight there for a long distance east, and that while decedent was “walking on said track and right of way of defendant” he was struck and mortally injured by defendant’s train; that defendant’s servants and agents in charge of the train either saw or by ordinary care could have seen his peril and that he was unaware of the approach of the train; and that after-wards they negligently failed to warn him by bell or whistle and negligently failed to use the brakes or other appliances provided for stopping the train and putting it under control before it struck him, but on the contrary negligently ran its train against deceased, injuring and killing him.
The answer admits certain conventional allegations in the petition, and then denies generally each and every other allegation thereof. Next it pleads the contributory negligence of decedent in walking upon the track or dangerously near the same immediately in front of the train without looking or listening, without heeding any warnings given by defendant’s employees, or taking any care to avoid his own injury and in such close proximity to the train that it was impossible to stop the same and avoid his injury; and that decedent was a trespasser upon defendant’s track.
The reply put in issue the new matter in the answer.
In addition to facts already stated, plaintiff put in proof tending to show from Frank that he did not
On cross-examination Frank would not say whether there was a whistle blown or bell rung, but
Mr. Yandewerken testified that he was sitting in his yard reading a newspaper under a shade tree about seventy-five feet north of where decedent was killed. He saw decedent and another man walking around the head of a freight engine taking water at the tank. They then walked toward the depot “in the middle between the two tracks.” (Note: there was no testimony as to how far these tracks were apart.) After that time witness next saw Mr. Baecker after the train had passed to the west. He did not hear the train coming, heard no signals and testified that he could not have
On cross-examination it appears that tbe witness could not bear well. As be was born in 1829, be was seventy-nine years old at tbe time of tbe trial. The-record also shows tbe following question and answer: >■< “Q. Then when you saw tbe men walking up did you know just where they were? A. Well, I thought they were then between tbe two tracks. I looked up and I saw tbe two men walk around in front of tbe engine, and they walked on like they were between tbe two railroad tracks. Then I just kept on reading my paper and directly I beard someone say that a man was killed. I looked up and tbe train bad just about stopped then.”
By Mrs. Yandewerken it was shown that she saw tbe passenger train after it struck Baecker and beard no signals; also that people used tbe track to go to tbe river and return, “people used it every day almost, it is used as a footpath.” This bad been going on for twenty-three years. Being asked whether they walked on tbe track or at tbe side, she replied: “They walked all over it if they felt like it; tbe main track or side track, wherever they took tbe notion to walk.”
Ur. Haffner testified that be saw Mr. Baecker at Hermann, be described bis injuries and that be died shortly after surgical attention. Witness bad known him for thirteen years, and as far as be knew bis sight and bearing were good.
By Mr. Mumbrauer plaintiff proved that be lived at Hermann and went at tbe solicitation of plaintiff’s attorneys to take photographs and measure distances at Gasconade. It seems there is a road crossing over
“Q. I will ask you to state, if a man standing upon the track of the Missouri Pacific Railway, at the crossing east of the depot in Gasconade city, or near that point — how far east from where a man was on the track could he have been seen by anyone up in the cab of an engine?
“Objected to as incompetent and immaterial, not tending to prove any issue in the case. Furthermore, for reason that no witness has testified that deceased was upon the crossing or near the crossing at the time he was struck by the train.
“Mr. Breuer: We can supply that.
“The Court: I think there is some evidence. Objection is overruled.
“Defendant excepts.
“A. Well, I do not know how far a man could see out of a cab of the engine, but out of a coach you could see a man.
“ (Objected to.) No ruling.
“Q. Go ahead. A. Well, I do not know how far you could see out of the cab of an engine.
“Q. How far could you see a man standing on the track, supposing him to be at or near the crossing — how far east from that can a man be seen standing on the track?
“Objected to as immaterial, not being an issue. (No ruling.)
“Q. Well, on the crossing east of the depot, in the middle of the track, how far east could he have been seen?
“Objected for the same reason given. Overruled Defendant excepts.
“A. You can see a man from the east — you first get a glimpse of him forty-four steps east end of side*516 track. You can get a plain view of him at east end of the side track.
“Q. How far is that? A. Two hundred and fifty-eight ordinary steps.
“Q. So then 258 steps east of the crossing — from that point a man is in plain view standing at the crossing? A. Yes, sir.
“(Witness excused.)
“Mr. Breuer: That is our case.”
I am instructed to say for the brethren that we are all of one accord in the opinion that the ruling below on the demurrer was well enough. This, because :
The case made either on the pleadings or facts does not turn on a violation of any statute relating to train signals at crossings, nor upon the violation of any town ordinance relating to such signals or to speed. Cases of that sort are therefore not in point.
The case may, however, proceed on the theory that no bell rang or whistle blew. Whether there was a duty due to decedent in that regard and whether such omissions make a case for the jury depends on other conditions presently considered.
One prong of the alternative allegation in the petition, to-wit, that defendant’s servants in charge of the train actually saw decedent in peril in time to save him, is not sustained by any proof, hence is out of the case.
There is left the other to be presently reckoned with, to-wit, that they might have seen him in danger if they had used due care in looking for him.
The allegation that the track was straight for a long distance east is not proven. True there is some faint testimony tending (or intended) to show how far from the east a man could be seen. But a fair review thereof demonstrates how lax and inconclusive it is. Let us attend to that phase of the case. Mumbrauer is the main witness to the point. In a hypothetical
Plaintiff undertook, and was about, the serious business of charging the unfortunate death of her husband to the negligence of the engineer and thereby taking $10,000 from the money chest of defendant and transferring it (with a good title) to her own pocket. In so grave a matter as that, her proof must rise to the dignity of her case, so that if a jury find the issues for her the court could say there was testimony of substance on which the verdict could rest. Failing to show, as she did, that her husband was actually seen in peril it was at least her duty to show that by due care he could have been so seen in time to save him.
As we see it the case stands this way: The negligence of decedent is beyond any question. He voluntarily took a position of deadly peril, too near defend
There is yet another view leading up to the same end. Assuming for the purposes of the case that the place decedent was struck was one where defendant may have been entitled to a clear track, but had no right to expect one because of the customary presence of persons there by its acquiescence (a theory scantily supported by the proof, but sufficiently so under the admissions of defendant’s brief), yet to hold defendant liable decedent must have been in a position of peril long enough or far enough away to allow the humanity doctrine play; for, if he was in a position of safety between the two tracks and appeared in a position of peril on the ends of the ties so shortly before the engine struck him that he could not be saved by warning or stopping, then it matters not that at last and too late he might have been seen in peril, by the engineer; for under the humanity rule his death is not actionable.
It is not necessary to cite authorities to sustain 'that proposition. Our reports abound with them. The very point was up and ruled in- the very last case handed down by this court on the law of negligence. [Dyrcz v. Railroad, 238 Mo. 33.]
Now, in this case there is not a particle of testimony (as we read the record) tending to show that
We may pause with some little profit to moralize a bit on the testimony of Prank. What a man sees when half seas over (we speak with becoming reserve) is seen as through a glass, darkly — i. e., dimly, inexactly, uncertainly, as in a vision, a mist or a fog. There is a very old adage in a dead language, In vino veritas, but it is of doubtful or no use in the administration of justice as a precept in sifting and applying testimony. We opine, at all events, it should be construed strictly, that is to say by its letter. Observe, it does not say there is truth in all the possible variety of drinks sold in Chill’s saloon in Gasconade.
It seems from all the testimony, Frank’s included, that decedent was not on the track at all. It seems, too, there was a place of safety between the two tracks and Prank, the drunken man, put himself in that place of safety. It seems decedent at the last was walking on “the ends of the ties,” but how long and how far did he'walk on the ends of the ties? Where was he walking before that? There are no satisfactory answers to those questions in this record. How long were the ties? Did walking anywhere on the ends of the ties necessarily put him in danger ? There is no answer to those questions in'this record. Absent proof on these vital points, if we are to indulge in mere presumptions or speculations, we would presume he would walk in safety up to the time the actual proof showed he was not doing so; for the natural instinct to preserve life is so strong that he must be presumed to exercise due care to preserve it, until, as said, the proof steps in and rebuts the presumption and shows he did not. Clearly he was in danger at the instant he was struck by the cross-beam of the engine. So much the sequel
The learned trial judge did right in taking the case from- the jury. The judgment is affirmed.