Hitz v. St. Louis Southwestern Railway Co.

152 Mo. App. 687 | Mo. Ct. App. | 1911

NIXON, P. J.

It is conceded by both parties that the only question for determination on this appeal is the liability or non-liability of the defendant by reason of the humanitarian or last chance doctrine. Respondent states in her brief that the case was tried and submitted on the humanitarian or last chance doctrine. Her instructions were based on that theory, and the judgment must stand or fall by reason of that theory, as the jury had no other ground on which to base its verdict.

At the conclusion of the evidence, the defendant tendered to the trial court an instruction in the 'nature of a demurrer to the evidence. The court, in denying this instruction, gave as authority for its action the decision in the case of Hinzeman v. Mo. Pac. Ry. Co., 182 Mo. 611, 81 S. W. 1134. About this same date, the Supreme Court delivered an opinion in the case of Degonia v. St. Louis, I. M. & S. Ry. Co., 224 Mo. 564, 123 S. W. 807, in which it expressly overruled the Hinzeman case. In justice, however, to the learned trial judge, it may be said that the Degonia case could not have been considered by the trial judge for the reason that it was not reported until some time after this case was tried. It will thus be seen that the only question which confronts ns is the propriety of the trial court’s refusal to give defendant’s peremptory instruction tendered at the close of all the testimony.

The testimony of the four surviving members of the gang of men under Hitz’s charge, all of whom were immediately present at the time of the collision, is in substantial accord as to the basic and controlling facts and there is no serious controversy between plaintiff and defendant as to the salient facts.

In considering the question of negligence, it is a truism that an ordinarily prudent man would, not take precautions to guard himself against a danger which he could, not reasonably anticipate. What a reasonably prudent man would anticipate, when required to act under a given state of circumstances, is the legal measure of liability for negligence; and when an ordinarily reasonable and prudent man would not anticipate an injury to another' person from his act, such injury thence arising from his failure to take precautions to prevent it is not actionable negligence in cases where reasonable care only is required. The application of these fundamental principles to the facts of this case will resolve the question of the defendant’s liability. If the servants and agents of the defendant company, charged with the responsibility of the operation of the train, had a right to anticipate a clear track at the place where the accident occurred, then they were not in duty bound to keep a wmtch along the track in front of the train, and there would be no negligence as negligence and duty are correlative. Whether they had the right to expect a clear track would depend on the ancillary question whether track repairers are required in law7 to maintain a clear track, so far as their personal safety is concerned, by taking necessary precautions and protecting themselves from injuries that might befall them by reason of trains being operated on such tracks. When all the evidence in this case is viewed in the most favorable light for the plaintiff, under 'the controlling decisions of our Supreme Court in the cases of Degonia v. Railroad, supra, and Van Dyke v. Railroad, 130 S. W. 1-8, the plaintiff- failed to make out a case which authorized its submission to the jury, and defendant’s demurrer to the evidence should have been sustained. To demonstrate this conclusion, w7e will now proceed to trace the parallelism between this case and tlie Degonia and Van Dyke cases and apply the principles of those cases to the determination of the present one.

In this case, as in the Degonia case, the question was as to the negligence of track repairers and the court said: “Because section hands may he scattered along the railroad tracks from one station to the other, does not deprive the defendant of the right to rely upon a clear track, and this for the reason that such employees are bound to look out for their own protection. The rule as to an employee is different from the rule as to a passenger or stranger.” [Cahill v. Railroad Co., 205 Mo. l. c. 408, 103 S. W. 532; Evans v. Railroad, 178 Mo. l. c. 517, 77 S. W. 515.] “It is well known to all that section men often remain upon the track until the train is dangerously close, and then by a quick step put themselves in the clear. The engineer has a right to rely upon such fact, as well as the further facts that such men know the time of trains and are expected to protect themselves. For these reasons the .rale invoked —the humanitarian rule — cannot be applied in all strictness to section men, as held by this court and the United States Supreme Court.” [Degonia v. Railroad, supra, l. c. 592.]

As to whom the statute providing for the giving of signals is to apply is. well expressed by Macfarlane, J., in Burger v. Railroad, 112 Mo. l. c. 246, 20 S. W. 439, thus: “It is argued, we think correctly, by counsel for defendant, that the duty of giving the statutory signals of ringing the bell or sounding the whistle, has no application to one, situated as plaintiff was, in the middle of the train and between two cars, but was intended to give warning of the approach of a train to persons who might be crossing, or intending to cross, the railroad over a public highway. Indeed, the language of the statute admits of no other construction.”

Continuing, the court in the Degonia case, said: “Now under the evidence and the law. is thus far appears, (1) that defendant had a right to expect a clear track at the point of injury, and under no theory of the law can it he held liable unless defendant’s servants actually saw deceased in a perilous position, and further saw that he was oblivious to such perilous position, in time to have averted the injury by the exercise of ordinary care, (2) that as to deceased there was no negligence in failing to whistle for the crossing or to ring the bell thereafter, and (3) that the servants at such place were not compelled to be on constant watch for persons on the track at such place.”

In Riccio v. Railway Co., 189 Mass. 358, where the deceased was shoveling snow in the switch yards of the defendant with snow still falling and was struck and killed by an engine, the Supreme Court of that state said: “We see no negligence on the part of the defendant. The plaintiff (deceased) knew that he was at work in a railroad yard where trains and engines are frequently passing. There was no undertaking on the part of the defendant to give him warning, but he was expected to look out for himself. If the engineer failed to sound the whistle or ring the bell, it was not negligence for which the defendant was responsible. Both by the common law, and by the law of the State of Connecticut as we understand it to be under the decisions of that state which were put in the case as evidence, there is no evidence of negligence of the defendant. [Morris v. Railroad, 184 Mass. 368; Whittlesey v. Railroad, 77 Conn. 100, and cases cited.]” The above language was quoted and approved by our Supreme Court in the case of Cahill v. Railroad, 205 Mo. l. c. 411, 103 S. W. 532.

During the discussion of the Degonia case, our Supreme Court also said: “There can be no negligence without there being some duty to be performed toward the injured party. The Massachusetts court puts it well. When a section man is employed, the character of his work is a warning to be upon the lookout. As said by that court, the common law does not demand warning and in Missouri we have no statute demanding such, then wherein comes the rule of law announced in the Hinzeman case. In Aerkfetz v. Humphreys, 145 U. S. l. c. 419, Mr. Justice Brewer says: ‘Upon these facts, we observe that the plaintiff was an employee, and, therefore, the measure of duty to him was not such as to a passenger or a stranger.’ ”

As said in the case of Evans v. Railroad, 178 Mo. l. c. 517, 77 S. W. 518, referring to the humanitarian rule: “It will not do to apply this rule in all its strictness to section men whose business it is to work upon and keep in repair railroad tracks, for they are supposed to look after their own personal safety, and to fcnow of the time at which trains pass, to look for them and see them, and to move out of the way. It is. of common knowledge that these men often voluntarily wait until trains get dangerously close to them, and then step out of danger and let them pass by, and to require trains to stop upon all such occasions, when section men are discovered at work on the track, would not only be imposing upon railroads unjust-burdens, but would greatly interfere with traffic and travel. Those in charge of trains have the right to presume in the first place that such persons will keep out- of danger, and not until they have good reason to believe they will not do so, and then fail to use all proper means at their command to prevent injuring them, in consequence of which they are injured, or are injured by reason of the willful negligence of those in charge of the train, should the defendant be held liable, ...”

The court in the Degonia case summarizes its conclusions and overrules the principles1 announced in the Hinzeman case in these words: “The essence of these cases, which in my judgment conflict with the Hinzeman case, supra, is (1) that the humanitarian doctrine cannot be applied in its strictness to employees working on the road, and that as to them the rule is different from the rule as to passengers or strangers; (2) that it is the duty of the employee working on the track not to place himself in such position that he cannot see an approaching train, and if he does so place himself he is guilty of such negligence as will preclude his recovery although defendant’s servants failed to warn him; and (8) that it is the trackman’s duty to protect him-' self from approaching trains and not permit himself to become so engrossed in his work as will prevent him from protecting himself.”

The evidence in the case at bar tended to show that the members of the track gang when at work in the Terminal Yards expected the foreman or person in charge of the gang to look out for their safety while they were at work; that they did not know the time a train might be coming and that they customarily relied upon the foreman to give warning; that when a train was coming, it was Hitz’s custom to warn the men of its approach. At the time of the accident, Hitz was in the center of track No. 38 and was doing nothing but standing there holding a trainman’s lantern in his hand in order that he might look around and see what there was to do. He. was fifty or seventy-five feet from the tower and some one hundred and seventy feet from the grand crossing and some eight hundred feet from the train-shed. He was standing upright, motionless, speechless, facing east, sideways to the direction in which the train was coming. The illumination in the Terminal Yards was such that one could see four or five hundred feet. Hitz was a man of good hearing and good eyesight. Had he looked, he could have seen; had he listened, he could have heard. He had been in the employ of the Terminal and had been assistant foreman of the gang in the Union Station Yards for a long time. There was no evidence that the engineer saw him, but on the contrary the train crew did not see him. From the evidence it also appears that Hitz paid no attention to the approaching train. With all this before him, with the imposed duty resting upon him of watching for his own safety as well as that of the men under his charge, and while in this place of peril, with the train approaching, he paid no attention to his surroundings and the certain fate that awaited him. The facts in every essential particular bring this case clearly within the principles announced in the Begonia case, and, as said in that case, under the weight of authority in this state, plaintiff is precluded from a recovery herein because of the negligence of the deceased, and as we view the law and the facts, the humanitarian rule in none of its phases has any place in this case. As said by Judge Fox in the case of Van Dyke v. Railroad, 130 S. W. l. c. 9: “While this accident, like all others of a similar character, enlists our sympathy and was strikingly unfortunate, yet, if we are to follow the well-considered adjudications upon this proposition, we repeat that there is no escape from the conclusion that the plaintiff in this cause is not entitled to recover.” The judgment is accordingly reversed.

All concur.