Butler v. United Railways Co.Butler v. United Railways Co.
*1 OCTOBER, 1921. Rаilways Co. v. Butler United Culpepper up told and is “The Todd closed deal Hearsay. y0i;i commission, one-half were deposit slip amount.” for me out a he wrote and statement, presence either not made was This hearsay. pure was and defendants permitted tes- prosecuting
VI. The witness objection, com- that he a tify filed the defendant’s over peace put a him under against plaint the defendant provides Section'3748, 1919, Revised Statutes bond. good fear reason jury there is
if finds Other charged, they the commisison of the offense Offenses. guilty against de- verdict of shall render magistrate require defendant shall and the fendant, recognizance, to enter etc. into a manifest, proceeding in that the issues
It is qyum- not the nor was the same, in the case at bar were proof case on tum the same. This was close jury might order that the The conclude evidence. give
magistrate requiring the defendant bond _to adjudication keep peace was an merits against case It well calculated on trial defendant. prejudice jury not have received, been should magistrate produced. been if the record had even complained they can but of, There are other errors on a retrial of case. be avoided judgment remanded. the case and- reversed All concur. COMPANY, v. UNITED RAILWAYS
MARY BUTLER Appellant. Two, March
Division to Evidence. Rule: Demurrer Where Humanitarian NEGLIGENCE: passage woman, on a street to take intended an adult regular stopping place purpose of such stood at a thirty twenty-five approaching at the rate of MISSOURI, OF COURT SUPREME United eight hundred, hour, or ninе miles and which saw ior an waiting, placed her,' and, approached while hundred feet as it running, track, upon which the herself near the so *2 injured by slackened which neither and speed stopped, after blocks had run three its nor until it striking her, humani- under the to recover she was entitled approaching rule, and was not as tarian inasmuch she saw duty attempting thereon, to and was her to enter on track or not, safety, her or motorman saw move whether the to recovery. precluded a failure do so and her Bеnja- City Appeal Louis Court.-—Hon. Circuit St. Judge. Klene, min J.
Reversed; and T. Priest Francis G. Bates, T. E.
Chas. W. appellant. ip overruling-
(1) erred defendant’s de- The court conclusively evidence The shows murrer to the evidence. lowering plaintiff’s umbrella, in her own act that it was contact with the front same to come so as to cause in. injuries. her she alone caused of the and thus end (2) been have The should sustained demurrer negligence plaintiff ground guilty of which eith- proximate directly the sole er contributed or was and injuries, entitled therefore she was not. cause o-fher Mo. 160 ex Railroad, 497; Tannеr v. State to recover. Reynolds, 233 S. 219. rel. v. "W. Ilamp Bothivell & Mar saleh for Safford
spondent. properly
The overruled court demurrer (1) evidence. A demurrer to the evidence admits plaintiff’s true all in evidence favor all inferences may, pro- degree favorable to priety, ruling in he drawn therefrom, and thereon, court cannot draw in inferences favor of defendant plain- counterbalance overthrow inferences favor of 1921. Vol. 293] v. United Bry- Drayage v. 254 Mo. Scherer Co., 337; tiff. Troll v. Gaslight Buesching 219; Co., 73 Mo. v. ant, 602; 273 Mo. App.. 667. Maginnis Mo. 182 Mo. Railroad, only (2) the demurrer when shоuld sustain court con- therefrom, be drawn the evidence and inferences strongly foregoing light are so rule, sidered for reasonable against no as to leave room 466; 116 Mo. Railroad, Gratiot v. minds differ. App. (3) Mo. Defendant, Steffens v. Fisher,T61 injuries alleged were caused its answer, dangerous prox- negligence going by in close and imity seen heard have when she could to the track away from approaching have remained ear timé This thereby averted collision. have the track and admission which defendant is is a solmen statement Rys. Lynch v. 19; 216 Mo. Co., U. bound. McKenzie v. *3 App. Mfg. 143 Mo. 19; Co., 208 Mo. Jewell v. Railroad, remaining alleged negligence in (4) 210. Plaintiff’s right recover under defeat her to near track cannot theory, negligence because the the humanitarian de- plain- failing stop after to occurred fendant. danger placed position herself at'a tiff had by exercising might ordinary defendant, time care, when danger -the accident. and averted have her discovered Railway, .Bunyan Pidler v. 107 19; 127 Mo. Railroad, v. Ry. Mo. Everett Co., Mo. 81 374; Werner v. 645; Citizens Coasting 54; 214 Co. v. U. 'v. Mo. 139 Railroad, Tolson, right (5) permit his motorman had no 551. S. running plaintiff, high toward car to at a continue assumption escape speed rate that she would danger position have her actions when would her apparent expecting plainly him made it that she stop making get no effort to and was out the ear path. v. 159; Kinlen 216 Mo. Railroad, its Eckhart v. 618; 190 Mo. 176 Co., Transit Johnson v. Traction Co., Rys. v. 23; U. 216 189; McKenzie v. Mo. Shafstette Co., 142; 680-1; 234 175 Mo. Ellis v. Railroad, Railroad, Mo. (6) 241 v. 162-3. motor- Railroad, Duteher Mo. When operating in an unlawful manner, mаn is .his 262 SUPREME COURT OF MISSOURI,
Butler v. United person right has no on street to assume that a safety endangered by whose unlawful conduct his by exercising ordinary will save himself care to safety. get main in or to a Powers v. Rail- Transit 202 Gordon v. 283; Mo. Co., Ry. App. Blyston-Spencer 153 road, 565-6; Mo. v.- App. (7) 152 Mo. Co., 137-8. in- Under ordinance required troduced the motorman evidence, was. stop upon plaintiff’s signal request. his car In presume absence of evidence, the will law that his failure stop due to the fact that he did not see presumed deliberately as it cannot be that he violated theory the ordinance. Defendant’s the motorman —that get way, assumed out did would for that be reason—cannot because considered, permit it is without foundation in the facts, would urge defendant to its breach law aas defense v.-Ry. action. Hale 230 Reno Co., S. "WV119; Bergman v. 180 Railroad, 482; Mo. v. Mo. Railroad, 88 (8) 678. The fact that the motorman did not see liability. will not exonerate defendant from Ellis v. 673; 234 Railroad, Railroad, Mo. Waddell v. 213 Mo. 16; McQuade v. Hilz 158; Mo. Railroad, v. M,o. Eskridge -Railway, App. 101 Mo. Railroad, 53; v. Railway, Gilbert 548; 226 W. S. damаges, alleged
RAILEY, an C.—This is action by plaintiff been sustained have account of having been struck, one of defendant’s while cars, *4 waiting passenger she was to become a the thereon, at southwest corner of Oakland and Macklind Avenues, St. Missouri. Louis, May evidence tends to show 1917, fifty-four years age, then went to the usual
stopping place, at the corner of Oakland and Macklind city p. Avenues, aforesaid, about six oclock m., purpose boarding for the one of east- defendant’s cars on bound Oaklаnd Avenue. maintained Defendant point at running above two tracks, east and west. Butler v. United passed and those said
Cars bound west over the north traveling Neither south east used the track. improved junction had been
avenues near the aforesaid thoroughfares. by city, public was There but were improved oc- regular accident 'the sidewalk where no placed along side curred, but had been south cinders the south track aforésaid, and injured was struck and as hereafter stated. falling; heavy
At rain was a accident, time the tracks and it of Macklind Avenue dark. West slightly up Highlands’ grade en- ran Forest Park to the or top two blocks trance. The eight the hill was Avenue. or nine west Macklind feet from hundred twenty-five approached traveling A from car thirty west per miles hour. Plaintiff testified that she place standing con- which she on the cinder walk a track; had sidered a safe distance from that she protection from over her head for her umbrella raised peo- noticed.any pouring other that she never rain; ple except vicinity, saw man; a she colored the time it left her, the-street car, which got Highlands, Forest until it above entrance at Park headlight il- her; car and'was close said had just waiting there for the ; luminated that she stood until saw the that from the time first come; she- north not move either the she she did struck, Was coming, she first the car when she south; path on the cinder little further west walked a expected get thought on; that she where she pull her hand to her raised the car would say got it she whether but could umbrella, down the signal gave in- being struck; that she down before by raising dicating hand; to board her desire by left car all down her then struck she rendered unconscious. side and that while stand- cross-examination, On she-testified path little ing man in a colored on the cinder her, shanty back fence; that was side locality that the tracks; and faced the turned *5 MISSOURI, OF COURT SUPREME Railways Co. Butler v. United she where inhabited; the accident occurred was not that any did not see there but the that man; one else colored they she were see the where could car tracks and knew standing looking all there; while that she at was the-car after it came over the hill. further time, She testi- fied as follows: you you
“Q. And how close was it to when- took eyes your eyes my off it? A. I don’t as I took know watching it. off I that was and when it near came get signaled enough put my on I the car up then, my to lower too.” hand umbrella further She that when she hand testified raised her signal pretty the motorman, the close car was then that her; when she started to lower her umbrella ' twenty away. car from ten to feet She further testi- fied: you
“Q. And was about that time raised that your indicating you hand to the motorman, wanted my the car ? I A. raised hand when I knew he could see me. “Q. itWas time? A. sir; Yes, -and began my
then get I to lower you umbrella to on the car.
“Q. So up saw car the time it ten twenty away you? feet from A. . . Yes. you say that, “Q. But I understood car when twenty you, was ten or you feet started to lower your umbrella? A. Yes, sir.” Mrs. Bessie Tieman testified behalf of passenger that she injured was a on the car which spondent occupying third seat from the plaintiff “just front; she saw hit the her; that while standing there holding (witness) umbrella she about one-half block away. Witness furthеr testified: approached
“Q.' As the car standing Mrs. Butler, there beside the track, did time before her, move to the north south? A. No, sir.” She said the ear ran about three blocks east after strik- ing plaintiff stopped. before it Railways Co.
Butler v. United witness testified On cross-examination *6 further plaintiff just struck her. Sbe ear testified: you Yes, A. her?
“Q. Was that the first time sir. A. her? feet within of
“Q. That would be a few Yes, sir.” plaintiff, he in that
Edward testified behalf Ross of waiting car to take the stood near where plaintiff, injured approached her; which as car that plain- first saw umbrella; when he lowered her that standing three about two or feet tiff, “she was that moved from track;” he not think did by car; first time he her until she was struck move; did not that she was see her up embank- of knocked corner right-hand corner, ment; southeast, that was it about of it knocked her her; the car which struck ten or twelve feet. that he cross-examination, testified, witness
On plaintiff; standing about six or feet from seven pretty when the car was she started to lower umbrella close her. an P. in behalf of testified Smith,
W. twenty-five traveling question expert, car in ninety stoppеd per miles been hour could have thirty per ninety-five going hour, miles feet;- thirty stopped hundred and about one could have been thirty-five to. feet. one hundred usually by its defendant that cars It was admitted stopped junction at south- avenues, at the said going passengers east. west corner for objection admitted of defendant the court Over 2386 of the section Ordinance evidence the second city which reads as follows: Louis, of St. every duty motorman, driver, be the
“It shall gripman, running any bring his servant car to or other stoр as herein full at the corner of the streets to a requested, signaled or motioned whenever provided, 2G6 MISSOURI, SUPREME OF COURT
Butler v. United such, desiring appropriate corner person standing such . . instance hoard And every such car. length sufficient car shall remain for a stationary or leave time to enable board passengers safely to unoc- car; car in there are no that a provided, when seats to receive cupied passengers need not at passengers such may car which is succeeding hoаrd the time first car within hundred feet three bound over the route throughout.” same
Speed ordinance said numbered city, speed offered evidence by plaintiff, which fixed limit in one part of the in the other miles, and ten city portion city at fifteen hour. per said miles
At the conclusion of defendant evidence, *7 interposed thereto, a Ap- demurrer which overruled. pellant stood offer demurrer, 'said and declined any evidence in the case.
The con- and will be rulings instructions court sidered, as far in necessary, opinion. jury as The returned in a verdict favor and for $15,000 judgmеnt was entered due accordingly. in Appellant, time, filed its motion for new trial, a over- ruled, and duly cause appealed it. to court. by I. is here upon appellant’s demurrer to the The(case evidence. The facts relating the merits of con are set out troversy in very fully the foregoing, state
ment, will only again and be referred a g'eiieral way> may require. occasion Humanitarian Rule in her Plaintiff, avers statement case, it that was submitted to the jury under humanitarian rule charged petition,.to-wit:
“That position imminent dan- ger- and near peril defendant’s track, where she likely to be struck by approaching and she' car, that was oblivious her said danger; that by defendant, exercising ordinary care, could have known of of her danger and obliviousness thereto in have time to averted her injury by exercising care to stop ordinary said negligently but failed to do so.” Yol. 293] United except jury, to the other issues was submitted
No instruction damag’es relating to the claimed. Said that authorized case, undertook cover whole and plaintiff’s nеgligence. covery regardless of stopped Respondent on testified that when path junction Macklind and cinder Oakland track, south car on the to take the east-hound Avenues pouring p. May it was 21, 1917, about six m. on o’clock protection; her rain and umbrella she had raised stopped distance she considered safe that she at a moving, without there remained and track, from the her; ran 800 or 900 feet while said car and traveling while illuminated, and she saw it the car was twenty feet within the above until it distance, сame signaled her; then motorman attempt- by raising thereafter hand; her that she on to lower was struck umbrella, ed and body, left etc. head, side of her travel- tends that the car was evidence to show ing twenty-five thirty per ran miles hour, traveling stopping; while several blocks stopped twenty-five per it been miles could have hour, per ninety-five traveling thirty hour, miles feet; stopped thirty to could been in one have hundred thirty-five one feet. hundred plaintiff stopped Mr. cinder testified Ross path from the about two three feet *8 thought being struck. Mrs. she did move before passenger that on said testified Tieman, who awas plaintiff they got when within with her umbrella she saw standing feet her. Ross about six a few of was said her with but from the umbrella, feet plaintiff gave Mrs. nor testified that neither Tieman Ross signal claimed car. It is not the motorman a on the or that track, respondent’s brief, enter thereon. It is insisted position, until she never moved from above although approaching 900 for 800 she saw it the car, Buchler, Mo. v. Mo. State Wieners, 29; v. 103 State 66 MISSOURI, OF, 268 SUPREME COURT y. United approaching dаnger feet. Her no other source. opinion foregoing are
On the we of facts, is not entitled to because recover, approaching, at nor and was neither tempting to circumstances enter thereon. such Under recovery there rule. can be no under the humanitarian Ry. Rey [State ex rel. Louis-San Francisco Co. v. St. (Mo.) 233 nolds, 22; Railroad, S. l. Reeves v. 251 W. c. Pope Mo. l. c. 177-8; 238-9, v. 242 Mo. l. c. Railroad, 240; Kinlen l. Railroad, 164.] v. 216 c.Mo. supra, Cozby
In Reeves v. undertook Railroad, Mrs. moving train, track in front of cross railroad a operated dangerous speed, at a rate of violation city a ordinance, and killed. Defendant insisted ! recovery there could nobe in the case, account on Respondent negligence Cozby. of Mrs. contended was liable under the humanitarian defendant doctrine. disposing of In the case, we said:
“This is not a case where humanitarian doctrine applied, can be because the deceased was aware of approaching apply train. That often doctrine does where engineer pedestrian standing train sees a or walk- ing upon apparently the track im- oblivious to the pending danger, ap- or where children are seen on or proaching a track.” railroad Pope
In v. l. c. Railroad, Mo. 239, cited, we 240, approval, quotation opinion from our in Kinlen Railroad, Mo. l. c. 164, as follows: applies only “The doctrine humanitarian au- recovery injured thorizes a party ignorant where- the impending danger; oblivious to the but if he knew approaching danger, clеarly guilty then he would be contributory negligence of covery prevent such would agents whatever the charge conduct of the ” might the train be. Reynolds, In State ex rel. v. 233 S. W. l. c. Appeals'was of the St. brought record Court Louis be fore the in Court Banc case Mar certiorari *9 269 Railways Co. United v. plaintiff Ry. Co., wherein Francisco tin v. St. Louis- San killing the judgment account of $5,000 for recovered a review and exhaustive in able an J., of his wife." Graves, page said: 222, case, said of the law facts wife) (speaking “was duty” of “Her its engine, moving and the rate just was, the see where This attempted the track. speed, cross before she Appeals train knew the finds, as the Court because, ap knowledge of the coming. the fact She, with danger.” proaching of her not oblivious train, was danger plaintiff only encountered in con- car. She defendant’s from contact with case was approach stand- fessedly has no and, hence, itsof knew humanitarian, the based on ing rule, the under court aforesaid. facts ap watching it as car, As
II. proached 900 it for 800 struck her, or feet justified, if have been he saw as her, would motorman safety suming move to a would approach if car, she was stand Assuming Safe Place Rey ing close to track. [State too rel. ex v. (Mo.) 222-3; l. nolds, 233 W. c. v. S. Railroad, Reeves Pope 251 Mo. l. c. 178; 240; Mo. l. c. Railroad, v. Ry. Boyd Ry. 159 Mo. l. c. Co., 5, 6, 7; Davies v. Co., 105 Mo. l. c. 381.] Ry.
In l. Davies v. 159 Mo. c. were 5, Co., facts follows: “At the time of accident stand- approaching ing pry- with his back to the and' up ing his end beam while assistants were.fas- hoisting apparatus tening it. see around He did not parties charge or hear the failed speed ring give warning a bell, to check its approach.” its whatever of page considering after
On other above, with disposing facts, the court said: case, there “Under these facts what was deter- jury should mination of the case have been sub- SUPREME OP MISSOURI, COURT
Butler v. United Co. Certainly go by saying, that mitted to it? it must the voluntary position assuming upon to the near of so railway, run are the tracks of a street over which cars every pass in- they that without cannot minutes, few injury flicting party positioned, to the an the so unless independent pre- agency intervention some occurs to grossest negligence. vent in is an act itself of the it, place plaintiff right . . The no to assume a had danger upon engage deliberately defendant’s tracks and undertaking deprive in an in a manner himself such toas sight hearing, of the of the sense of com- benefit the through approach danger mon avenues which the agents trust communicated, and that defendant’s employment course of their would be more considerate sаfety and watchful for his himself.” than he judgment plaintiff in favor with- A was reversed remanding. out Reynolds,
In rel. State ex l. S. W. c. J., said: Graves, Boyd danger “The ruled that the zone Case was the although railroad gineer and further en- track, that, ruled Boyd running engineer depot, toward the right pro- had the that -assume he would check his gress going upon track. also railroad We then that ruled evidence did make upon jury any case for the the humanitarian rule, judgment other rule, and reversed the for covering was under her instruction rendered the hu- manitarian rulе.” support
Numerous authorities are above cited proposition.
Plaintiff’s counsel undertake to meet the force foregoing by suggesting authorities that the motorman stopped never saw or he would have the car signal. approach on her aware of As Avas justified assuming, the motorman if safety, he saAV she would if her, move to a pass too close to the track without presumed striking her. It cannot be this case, TERM, 1921. Kailways v. United plaintiff standing by the failed motorman to see the lighted Tieman Mrs. the ear side of the occupying (witness) while seat her, duty look- to he on It was rеar of the motorman. his passage people take on his out for who desired subject, cannot it in the and, absence of evidence duty. presumed In addition be do his failed plain- foregoing, Mr. who saw Ross, Mrs. Tieman and describing they witnessed, tiff in plaintiff gave what umbrella, testify motorman failed any presumption signal in- car. can be If way, theory, dulged be either would *11 give plaintiff, the did not see her motorman but saw stop. signal to she on which humanitarian instruction,
Plaintiff’s jury issue, to verdict, a the the recovered submit did neqr actually plaintiff motorman as to whether passed with the hut authorized as he track jury if the the humanitarian her, rule, find for under to ordinary have care, motorman the exercise of could by peril being track, near the of seen danger, passing to the oblivious while she was injury. stopped the car and avoided the to have in time approaching, track on was not the and She saw duty attempting in that her to move direction. It or safety place circumstances, under such to to of move to her or not, the motorman and failure whether recovery rule. under the precludes do so, a. humanitaria^- Respondent at the trial abandoned III. all except charges negligence petition, Excessive relating doctrine, humanitarian Speed. jury this and the case submitted to 'issue alone. pleaded in section second of Ordinance required
petition, and offered in evidence stop signal. the motorman to car on Plaintiff her twenty feet of testified when the car was signaled raising stop, by her the mo'torman SUPREME OP COURT MISSOURI, y. Co: United twenty-five traveling hаnd. The car time was thirty testimony per according or hour, miles plaintiff’s expert been Smith, witness,-could not have stopped ninety signal feet. less At the this time than given, too several inches close could avoid- she alone then have by promptly place ed a moving collision with the car to a safety. coming, She it was front knew and that the part of pass the car must could take her, passage thereon. foregoing physical
In view the there could facts, recovery be no under the humanitarian rule. opinion IY. areWe that where like an adult, plaintiff, goes a- railroad station, with actual no- tice that a approaching, voluntarily train is as- position platform sumes a on the near the too Actuai permit Notice. pass track to said car or train to without engineer striking proceed the motorman or her, can theory, train, the car that she will move to safety. injury If an under such sustained recovery damages, there can no circumstances, be un- der the humanitarian-rule. Reynolds,
Y. In State ex rel. v. l. S. W. c. 219 fоllowing, principles applicable law, *12 thoroughly have been so case, considered in Banc, necessary opinion not we do deem to extend this furth carefully fully er. We have read, all and considered, respondent’s authorities cited in brief. Conclusion relate Some accidents tracks. Some injured party relate to accidents where the either leaving attempting enter and some tracks, injuries powerless relate to inflicted on infants who are protect themselves. are We сited, however, authorizing recovery case under the humanitarian where rule, this no case, actual had approach tice of of the and was not on the track go attempting voluntarily occupied but thereon, position several too close to the inches 1921.
State Tarwater. injured by negligence her own thus reason of and care- lessness. opinion presented the facts that,
We are is not to recover. record, entitled accordingly judgment reversed. White below concur.- Reеves, GG., opinion foregoing PER CURIAM:—The of Railey, hereby adopted opinion isC., as the of the court. All judges concur. THE STATE v. Appellant. HUGH Y. TARWATER, Two, 20,
Division March 1922. Insanity: Asylum. Evidence: Records of On the trial of defendant degree, for murder in the first where the defenses were self-defense insanity, asylum, the records of an insane reference the confinement of himself, defendant’s father and of defendant competent evidence, were not appear inasmuch as it did not they required hy express were authorized or either statute.or charge thereof, the nature of the duties of those in nor did it appear that the records offered were the “detailed account” re- quired by 1228B, Section copy Revised Statutes or a or record thereof. Newspaper 2. -: -: Articles. On the trial of defendant for degree killing murder in the first newspaper, for the editor of a insanity, where the defenses were self-defense and articles and parts'of articles, appearing newspaper, in such which did not refer defendant, competent wеre not evidence to' show their effect on bearing plea insanity the mind of defendant as on his and were- properly excluded. Attorney. 3. -: -: Letter of Deceased to On the trial degree defendant for killing murder the first the editor a.of against newspaper, partner whom and his defendant had a libel pending, nothing Supreme suit there is before the Court for re- view, where defendant offered in evidence a letter from the de- attorney partner editor’s ceased to his in the libel suit *13 lating referring defendant, thereto and such offer Sup. Mo. £93 —18