242 Mo. 125 | Mo. | 1912
Lead Opinion
Plaintiff, seventeen years of age, was an employee of a contractor who had been engaged by defendant to install for it a block system of signals for use in its tracks and yards in St. Louis and at other points. Plaintiff had been doing this work for six weeks or two months. It was the custom of defendant to provide for plaintiff and persons in the same service a “plug” train which would take them to their work across the river in the morning and bring them back in the evening. This train stopped at a point in the city of St. Louis near which Eighth street extended to double tracks owned by defendant. The street did not cross these tracks but lay entirely south of them.
On the 8th of July, 1908, plaintiff, in company with his foreman and others, returned on this train to its stopping point, about 5:20 p. m. After they debarked, plaintiff was told by his foreman that the pay train would not be in that afternoon, and probably on that account the men would not be paid on that day. Plaintiff then observed that two of the men who had come over with him and who had left while he was talking to his foreman were about to enter into a curve which the defendant’s two tracks describe at that point, and through which, over an elevation beginning at the point where plaintiff was standing, they proceeded across trestle works for about four blocks and then six blocks due west until they reached the union station. Plaintiff’s employers kept an office in the yards at the union station, where plaintiff and his fellow-workman were paid, and plaintiff says he
The only time plaintiff looked to the west was when he observed his two companions taking that direction. He then saw nothing of the approaching freight train coming eastwardly over the north track, and he never saw that train at any time until it was so close to him that he could only make one step southwardly as he was struck by the tender of the engine. Plaintiff’s exact language is as follows: “The only recollection I have of the train coming in an opposite direction is when it was just about on top of me; then I have just a faint recollection of seeing it and making an effort to jump when it struck me, and that is as far as the recollection goes.” Plaintiff stated that during his employment he had been nearly every day in the defendant’s yards. He stated further, “But it was a known fact to be careful of trains because we had talked about that often.” At the time plaintiff was hit, he testifies he was ten or fifteen feet distant from the curve of the two tracks; that he did not remember whether he could “see around it or not;” that his im
Defendant adduced evidence tending to prove that plaintiff was seen by a man who was stationed on the east end of the tender of the engine that was drawing the freight train eastwardly on its north track at a distance of 150 to 250 feet; that he was then standing at a point between the north and south tracks close enough to the north track to he injured if he remained stationary until the freight train reached that point; that the two tracks at that point were ten or eleven feet apart; that when the plaintiff was seen, the whistle blew and the hell was rung; and the plaintiff turned and looked “and stepped into the clear” when the freight train had reached a distance of about seventy-five feet from him; that the plaintiff’s injury was caused from his having run sidewise for some distance apparently to get on the moving train coming west-war dly over the south track, and having moved backwards just as the tender of the eastbound train reached the place where he was.
Another witness for defendant testified that he came over that afternoon with plaintiff on the “plug” train, and that plaintiff proposed to him that they catch the westbound train and ride in it over the south track to the union station; that he warned plaintiff to look out for the freight train coming eastwardly over the north track, which witness called a “drag train;” that plaintiff answered “all right;” that there
Defendant requested a peremptory instruction to find in its favor. Defendant also excepted to the ruling of the court excluding its offer to prove that at the point where plaintiff was hurt the distance between the trains was ten or eleven feet, and .that a person could stand safely in that space without being hit by two trains passing him at the same time in opposite directions.
A verdict was rendered for plaintiff for $10,000, from which defendant duly appealed.
OPINION.
I. The questions presented are:, First, the correctness of the action of the trial court in overruling the demurrer to the evidence; second, the correctness of its ruling excluding the testimony as to the width between the two tracks at the point where plaintiff was injured.
If there is material evidence tending to prove a cause of action, although conflicted by other evidence;
To solve the question presented by the refusal of the trial court to sustain the demurrer to the evidence, the facts of this case must be analyzed in the light of the rules of law applicable to the evidence and the reasonable inference therefrom.
The laborers employed directly by defendant, and also those employed by any contractor to whom it let work in its yards, were privileged to be on and about its yards and to use the same to the extent implied from their avocations, and for all reasonable and proper purposes of entering and leaving the places where they were at work. The reciprocal duty rested upon such employees to use the yards and tracks of the defendant with due regard of the danger arising from the necessary movement of trains of cars. This danger and the importance of taking care to avoid it was known to the plaintiff, for he so testifies. To him and all others whom it might expect to be in its yards and about its tracks, the defendant owed that degree of care and watchfulness which an ordinarily prudent person would exercise under similar circumstances to prevent injury. Unless there was a failure of this duty and unless such failure was the proximate cause of plaintiff’s-injury, he could not recover, for plaintiff’s action is only predicable on the negligence of defend
We do not understand counsel for plaintiff to deny that the plaintiff had negligently taken a position which exposed him to danger from a train which might be moved eastwardly over the northern track of defendant if he stood there when such train reached the same place; but we understand him to insist that the persons in charge of the eastbound train of defendant either knew, or by reasonable care would have known, that plaintiff had placed himself so near the track over which such train was moving that he would be injured, and that this was or could have been known by due care when the train was at such distance from plaintiff that it could have been stopped by ordinary care before it reached him, and the injury thereby prevented. This theory is based upon the assumed application of the doctrine that the party who has the “last clear chance” to avoid injuring another who is in a position of apparent peril whether negligently or not,'must exercise ordinary care to prevent the injury, or he will be liable on the ground that his failure to exercise such care was the proximate cause of the resulting injury. The liability thus incurred is imposed by law because the injury is inflicted by the subsequent negligence of the person whose moral and legal duty it was to use due care to prevent it. It does not involve the abolition of the rule forbidding a recovery by a party who suffers injury resulting directly from his own contributory negligence. For it is not his negligence but the subsequent negligence of the wrongdoer which the law regards as the proximate and efficient cause of the injury. It is on this ground alone that the rule is sustainable, and it has now become definitely established in the jurisprudence of this State. [Klockenbrink v. Railroad, 172 Mo. l. c. 687;
We are utterly unable to find in the facts of this case any room for the application of this doctrine. The plaintiff testified in positive terms that he never at any time prior to the moment when the eastbound train was right upon him saw that train or had any knowledge of its approach. The only other witness called by plaintiff was the engineer of this train, who states that he never saw the plaintiff except at one time; that he observed two men, one of whom might have been plaintiff; that both of these men were on the south track walking east and were not on the track over which his own train was moving. Giving full effect to the testimony of these witnesses, which were all had hy the plaintiff, there is still a complete dearth of any evidence tending to show that plaintiff was seen, or could by ordinary care have been seen, in a position of danger by the persons in charge of the eastbound train. When the two men were seen by the engineer, they were, as far as his train was concerned, in a position of safety, for they were not on its tracks at all. Hence, there is no room for the application of the rule as to the “last clear chance” to be found in the testimony given on plaintiff’s behalf, or upon any inference which could reasonably be drawn from that testimony.
But the plaintiff is entitled to the benefit of the probative force of testimony given on behalf of the defendant, or any legitimate inference arising therefrom. Taking therefore, the testimony given for defendant, and we have two witnesses, one of whom was a lookout placed on the east end of the tender of the locomotive which was drawing the freight train over the north track. This witness testified, that he observed plaintiff in a position of danger at a distance of 150 feet; that the whistle was sounded and the bell
Under the testimony given for plaintiff, we can find no legal basis upon which to infer negligence on the part of the defendant. And since the evidence of plaintiff is not helped or aided in any respect by that given for defendant, we are wholly unable to find anywhere in the record a valid reason for the refusal by the trial court of the request made at the end of the whole case, to direct a verdict for defendant.
This renders it unnecessary to consider the error assigned as to the exclusion of testimony tending to prove that the distance between the two tracks rendered it safe for a person standing between them while trains were passing in opposite directions.
As the record in this case discloses a failure to prove the cause of action alleged and affords no intimation that it could be supplied on a new trial, the judgment wall be reversed for the error of the trial
PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.
Concurrence Opinion
SEPARATE CONCURRING OPINION.
I concur in the result reached by the learned commissioner and in all that is said in the opinion except what is said on the subject of what is therein called the “last clear chance” doctrine and the reason on which it is founded.
There is something in a name, in spite of what has been said to the contrary, and when two names refer to the same subject sometimes the choice between them gives some indication of the meaning intended to be conveyed. When discussing the exception to the rule that precludes a plaintiff from recovering on account of his own contributory negligence in an action founded on the negligence of the defendant, this court-in Kellney v. Railroad, 101 Mo. 67, and in like cases of subsequent date, has usually denominated it the humanitarian doctrine and has justified it on the ground of humanity alone, refusing to apply the general rule of contributory negligence when to do so would excuse a defendant in killing or inflicting an injury which he might have avoided after he discovered the peril in which the plaintiff had placed himself by his own negligence. •
The term “last clear chance” is usually preferred in the arguments of counsel who oppose this doctrine and in those arguments the doctrine is said to rest on the theory of primary and. secondary negligence, that is, conceding that in the beginning the situ
If a plaintiff chooses his path in the center of a railroad track where he knows a train is liable to come, paying no attention to the situation, and along comes a train, running at a rate of speed forbidden by law, which strikes and injures the plaintiff, nothing more appearing, the plaintiff cannot recover, because his own negligence contributed with that of the defendant to produce the result. But if the engineer saw the plaintiff on the track and realized that he seemed oblivious to his danger, if he could then with the means at hand and by the exercise of ordinary care have aroused the plaintiff from his apparent inattention to the situation or could otherwise have prevented injuring him, but failed to do so, the court would say that such case makes an exception to the general rule in regard to contributory negligence. And sometimes, although the engineer may not have actually seen the plaintiff on the track, yet if he was running his engine through a street of a city where he knew people were likely to be or in the country along a track where he
When an engineer sees a man in peril on the track and can save his life by a mere lifting of his hand he is not excused for failing to do so by the fact that the man was guilty of negligence in going on the track. Humanity revolts at the idea of unnecessarily killing a man merely because he is negligent. That is what this court means when it refuses to apply the general rule of contributory negligence to excuse the killing or crippling of a man in such case, and that is why we call it the humanitarian doctrine. This doctrine is clearly stated in Murphy v. Railroad, 228 Mo. 56.