Hawkins v. St. Louis & San Francisco Railroad, 135 Mo. App. 524

Hawkins v. St. Louis & San Francisco Railroad

135 Mo. App. 524 | Mo. Ct. App. | 1909

GOODE, J.

(after stating the facts). — According to the statements of all the eye-witnesses of the accident, the deceased walked point-blank into the locomotive, and the only discrepancy among their statements relates to the distance she was from the train when she was first seen on the track. One witness placed her as far away as one hundred and fifty feet when he first observed her and said she continued to walk, looking down, until she encountered the locomotive. As the track was used for foot travel, the engineer was bound to anticipate the presence of persons on it, and use ordinary care to see any one who might be there in time to avoid hitting him, and the same degree of care for the same purpose to check the train after he knew there was danger of a casualty. [Chamberlain v. Railway, 133 Mo. 587.] There is no proof the engineer was careless in respect of keeping a lookout. The witnesses said a person walking in the track where plaintiff was could be seen by one standing on the ground at the station. Neither this nor any other testimony tended to prove the engineer in his cab could have seen plaintiff further ahead than he testified he did. He said the front of the engine intercepted an earlier sight of her *534as the train swung around the curve, and this testimony-stood uncontradicted.

The next inquiry is whether there was proof he was remiss in respect of precautions to save plaintiff’s life after he saw her peril. If the train -was running eight miles an hour, a computation will show that only a trifle over five seconds intervened between the instant the engineer observed deceased sixty feet away, and when the locomotive struck her, and measures to save her had to be decided upon and executed in that interval. A witness said the train could have been stopped within twenty or thirty feet; a statement which looks incredible, even if taken to mean, as the witness probably intended it should be, the train could be stopped in said distance after the air brakes and other means to stop had been applied; and to apply them would consume time. The presence of deceased on the track so close to the locomotive and advancing, ought to have incited the engineer to quick action, for the situation was one of imminent peril. Granting all this, it remains that his first glimpse "of her and the collision were so nearly instantaneous as to make the finding that he could have stopped the train before it reached her a conjecture, instead of a just conclusion from any fact in proof.

To our minds the testimony to prove the engineer blew the whistle after seeing deceased, is satisfactory and the "converse testimony weak. Witnesses swore they did not hear the whistle after the train left the station and did hear it there. Weak and negative as such testimony must be deemed, considering the probable excitement of the witnesses in view of the impending tragedy, it must be allowed to have some tendency in support of the negligence charged, and we are confronted by the question whether we ought to affirm the judgment on the ground that the jury might find the engineer was remiss in not whistling to warn deceased after he saw her on the track, and also that if he had *535whistled she would have been aroused in time to save herself. In view of the mere instant (a small fraction over five seconds) in which the engineer must have blown the whistle and deceased have moved out of the way, we think her chance to escape Avas too infinitesimal for a fair affirmative finding. Our Supreme Court has said a bare possibility that the accident might have been avoided will not bring into play the last chance or humane rule. [Markowitz v. Railroad, 186 Mo. 350, 359.] This ruling is pertinent both to the alleged neglect of the engineer to stop the train as soon as he could and his neglect to sound the whistle. Our experience is, that cases predicated on a breach of the rule of law requiring care to avert harm to a person whose negligence has exposed him to injury from what another is doing, perplex appellate courts more than any other. This rule of liability though eminently just, readily lends itself to abuses in findings by juries that the defendant’s negligence was the sole proximate cause, of an accident when there was no such negligence, or, if there was, the injured person’s negligence was concurrent and fully as causative. It may he palpable on consideration of the entire evidence, that the verdict is unjust, yet discrepancies are to be found in the application of the principles of law to the facts of such cases. Adjudications on this ground of liability are very numerous and many have been cited. The results in the various cases áre put on the diverse facts presented, to an extent unusual in other classes of litigation. Instead of reviewing the precedents plaintiff’s counsel rely on, we will merely say none of them ^resembles, in its main features, the case at bar; none presents the facts of a party hurt while wmlking straight toward a rapidly moving locomotive bearing a brilliant headlight, continuing to walk toward it until a collision occurred, and under circumstances which prevented the engineer of the locomotive from seeing the injured person until *536within sixty feet of him. The principal citations in the brief for plaintiff are the following, wherein the facts were wholly dissimilar to those before us: McNamara v. Railroad, 133 Mo. App. 145, 114 S. W. 52; Everett v. Railroad, 112 S. W. 486; Epstein v. Railroad, 197 Mo. 720; Reyborn v. Railroad, 187 Mo. 573; Fearons v. Railroad, 180 Mo. 222; Morgan v. Railroad, 159 Mo. 262; Chamberlain v. Railroad, 133 Mo. 587. This case ranges in principle under these precedents: McGrath v. Transit Co., 197 Mo. 97; Gettys v. Transit Co., 103 Mo. App. 564; Rissler v. Transit Co., 113 Mo. App. 120; Reis v. Transit Co., 179 Mo. 1; Moore v. Railway, 176 Mo. 528; Bogan v. Railroad, 129 N. C. 154.

The judgment is reversed.

All concur.