*1 Jr., Frank C. Nicodemus, Norman B. Pitcairn Krause Lena 36578. Company, Appellants. Receivers of Railroad Wabash No. (2d) 74. 167 S. W. Banc, 1942. en November Court *2 appellants. N. S. Homer Hall for Brown and *4 Murry Douglas for respondent. Edwards and H. N. Jones *5 BOHLING, Appellants, as receivers of Wabash Rail C.—
way appeal $10,000 judgment Company, respondent. for Re spondent’s instantly Paul husband, Krause, ap killed pellants’ public highway west bound train struck his automobile at a grade Respondent’s charges, intersection. case was submitted alternative, negligently appellants failed to warn approach or to slacken the train involved under the Primary negligence humanitarian doctrine. also pleaded. had been covering Appellants present submissibility issues of respondent’s case, giving refusing of instructions and the admission of pending certain rehearing evidence. ease is and reaches the upon reassignment. writer
Taking the respondent, substantive facts most favorable to we following: adduce the September 19, 1937, accident clear, occurred dry, sunshiny
day, crossing 10:30 about Schaeffer’s about four west a. m., miles Wentzville, county, St. Charles Missouri. The railroad track and, practical purposes, extends east and west highway, gravel road, extends north all-weather and south. The railroad straight practically track was level for more than a mile east crossing. ground An elevation of the crossing east of the immediately right-of-way south of railroad interfered with the *6 highway crossing of the trainmen of south the view west-bound of crossing. of highway trains east of the travelers and north-bound of hundred approximately one feet south highway, point from The rising that upward, from to ten feet in slopes six intersection, was “pick-up” model Ford truck distance. Mr. Krause’s cab, in and, top of long feet to the the seven feet ten eleven eyes along highway height. north the and his proceeding He was ground. height of four-and-a-half feét above the about were (on engineer’s (on north) the the bottom of the and fireman’s the the south) the in cab of locomotive from" track seats the the being given feet, respective lines as nine and ten the of vision between higher. some from front of the their distance the locomotive forty respective in positions was feet. The boiler of the locomotive n engineer the the the on terfered with visio south of the seat. testimony engineer’s angle There was that the vision would of permit him to see the center of the track nearer than two'hundred opposite (south) (the feet the rail of ahead the track be or width inches) being eight tween'rails four feet nearer than two hundred sixty eighty hundred ahead. two feet The locomotive did not interfere with the view of the fireman to the while seat. south on his' testimony jury which There was from could find that line un obstructed vision nine feet above track five the and hundred feet crossing object east of height forty the would include an in six feet feet highway and, south the south rail and in the center the appellants’ witnesses, engineer from-one of the that side the'north locomotive,- the well fireman as the south on the sidé locomotive, eight when locomotive feet hundred east of crossing, object an height twenty could five half see feet five feet rail highway. south the south the center points From given, approach of west bound locomotive crossing would in extending result along the vision to the south . highway for the contracting fireman and engineer it for the
Wesley Sherman quarter had followed for a Krause of a mile or more morning question. He testified that approached Krause incline, crossing, one hundred feet south of the at about ten or fifteen per hour; miles that the'incline caused speed Krause to slacken hour, slow as five miles an at-'a point, “thirty estimated the witness, forty track”; from the feet apparently Krause did not see train, changed gears increased the of his automobile north, moving as he “anywhere continued from eight five miles per hour,” “I positive couldn’t that,” about time he "was struck train. estimating Witness was Krause’s speed, from but testimony his Krause did slacken his speed from he the time' started it to increase on the up incline to the of impact. instant Mr. approach Sherman heard the of the train and saw the smoke therefrom quarter half or crossing. mile never He track, saw the train until he within one hundred feet of the stopped lie truck. a “little his He heard blast or whistle” when the possibly or, away; place train was one hundred feet at another testimony, just “it was before it hit man.” He heard no bell. sixty say, fifty The train I running, would about “was miles *7 hour, anyway”; “slowing and started to down” about one hundred crossing. feet west the of they
Other witnessés testified heard neither bell nor whistle. When the two front Krause’s truck were “in middle wheels of the space rails”, part pilot between the front or the left-front of the the right, side, east, photographs -the automobile on from the its struck intact) (which bumper in evidence offered show the of the automobile testimony, someplace vicinity and the apparently in the of the front wheel, damage showing to the truck on the front feet five or six right fifty of the truck, side. Krause’s found about one hundred feet crossing, gear. west of the inwas second
Appellants cross-examining respondent, established on that Krause’s good repair right.” Sexauer, truck inwas and the brakes were “all Mr. had driven truck previously, opinion who sometime of was stop. it would to circumstances take ten twelve feet it thought Mr. “if he stopped Sherman good it could be two or three feet had brakes.” Bouque engineer
L. J. was and J ames Simcoe fireman of They seventy put train. at its miles hour. Neither saw approach of truck. The truck never within the line of Krause’s came engineer. having fireman, vision of the to fire loco- started reaching prior position motive Krause imminent sometime of peril, busy firing “just getting had been for several seconds get got When up impact. on seat box” he felt the he back, to the cab window and looked he saw the wrecked truck. There crossing crossing three-fourths of mile but east Schaeffer’s crossing no the west for a at distance of some miles or more two They approaches highway-railroad, Foristell. much testified traffic grade engineer’s intersections from the fireman’s as from the side of the locomotive. appellants be exonerated under
Are our humanitarian doc engineer fireman, of the fact the could not see and the reason trine although timely looked, engaged he could have had he seen firing and did not discover the in time the locomotive Krause any This, We think not. avoid collision? aside from issue involving credibility Bougue appellants’ and Simcoe. witnesses duty it of trainmen to maintain lookout for
We have said is highway grade persons public or on with intersections approaching (Div. 1935), 1, Womack Rd. 337 v. Missouri Pac. Co. railroads. 1166, (2d) 368, 371 v. Louis 1160, 88 S. W. St. Hencke [2]; 798, (2d) 335 W. (Div. I, 1934), 393, & 397 72 [1], H. Rd. Co. S. 799 neer’s 992[3], [3] inability to ; Hilton 137 W. S. Terminal (2d) see and the 520, Rd. 521[3]. Assn. fireman And, (Div. being engaged with, I, 1940), respect to an 345 Mo. other engi 987, engineer persons could position see duties: “If approaching near when the train dangerously on or the track crossing presence people the station where the the track duty fireman to anticipated, should then was have been engine.” of. ex rel. observe the conditions his side State 1000, also, 1002 (Div. II, 1924), [2, Trimble See 4], Quincy, (Mo. Thompson of fireman: O. & Rd. K. C. Co. 1929), (2d) 401, R. I. II, Chicago, Div. Hoelzel v. 405[11]; Ry. (Div. I, 1935), & P. 72[6], Co. extension the doctrine clear “The [11-13], [last when chance] actually fully perils justified discovered the situation looking danger, such that the defendant owes the out for crossing persons highway crossing in the a railroad at case Ry. Co., &
grade.” Dent v. Bellows Falls S. E. St. Vt. lookout, 116 Atl. Given a 86. maintain are trainmen *8 look, care, with see, held to and to act due where to with look ordinary timely see; running care and the of is is trains blind not last clear chance sanctioned under the humanitarian our doctrine. (Div. I, 1935), 1160, 1166, Pac. 337 Womack v. Missouri Rd. Co. Mo. Mo. 88 W. S. 642, 654 (2d) 368, (III), 276 370 [1] S. W. ; Schroeder 60, 64(III); v. Wells Ellis v. (Div. I, Metropolitan 1925), 310 St. Ry. (Div. 657, I, 1911), 28(3), Co. 234 Mo. 138 671(I), 23, S. W. supra. cases and Fleming (Div. I,
State ex 322 1929), 565, 572, rel. v. Bland 15 Mo. (2d) 798, 800, up rulings. S. certiorari on conflict of holding The of the court of under appeals review that effect the engineer) if a motorman (or operates (or locomotive) ear street negligent at such a that speed rate of under the doc humanitarian injury crossing trine he cannot avoid to another over the track by slackening speed or stopping account prior negligent on the rate of fspeed, o by he is not establishing inability exonerated his injury to avoid the the part, utmost effort on but held ac his is on operation (or locomotive) countable the basis car street nonnegligent rate of speed. presented at a Under the the issues ruling primary negligence court on was not antecedent nature the involved in instant it prior the case when said that defendant’s negligence not to be determining is taken into neg consideration in ligence doctrine, under the explicitly humanitarian preserved and previous rulings to the timely effect that defendant is held to a discovery peril of imminent performance in cases where due aof timely to maintain lookout would peril. have revealed the prior the summation of approved holdings “Many Vide of this court: impliedly cases decided this court hold that a situation of imminent 348 doctrine; that the humanitarian no basic fact of
peril is the unless and until situation of doctrine, arises under that whatever peril when such arises the doc existence; into and comes that peril requires and one upon situation as it then exists trine seizes instrumentality ordinary care dangerous to exercise operating timely discovery peril, it was respects in certain malte if —to avoid infliction of lookout, and thereafter to he with at hand injury, if he can do so the means tie threatened (Italics safety himself and others.” jeopardizing without ours.) bearing pre opinion quotes observations issue there
The Ry. Mo. (Banc, 1893), 117 v. Pac. Co. sented from Sullivan Missouri Haley Pac. 149, 150, 151(3); v. Missouri 214, 221, 224(III), 23 S. W. 25, W. 1120, 1123, 114 Am. Ry. (Banc, 1906), 15, 197 Mo. S. Co. 530, 743; (Div. I, 1908), Rep. McGee v. Wabash Rd. Co. St. 33, Atchison, Ry. T. F. 541(III), 35(3) ; & S. Co. S. W. Keele 433, 5, 1914), 77(d), 79(3), 438[4, 167 W. (Banc, 258 Mo. 7], 1924), 302 & approval (Banc, Banks Morris Co. cites quotations 266(I), 482, 484(I). from the Sulli the humani Plaley are to effect under van, and McGee cases if at instant arises tarian defendant liable doctrine instrumentality in the speed impossible renders it defendant’s although injury, such be a care to avoid exercise due holding speed. in the negligent McGee and unlawful rate spec plaintiff’s case was removed from the field of ease was that ability injury ulation humani on defendant’s avoid after the upon tarian seized the situation. What is said with doctrine there pulse subject to five seconds and beats reference onerhalf Chawkley Ry. (Banc, observations found in v. Wabash Co. criticism of S. F. 1927), Ry. 317 Mo. Co., 782, 797, 297 S. W. App. [2] (see Bury 549, 551), St. Louis- *9 harmony respect the in and the dictum therein with to fireman is not by (ruled with later the same author in the Keele case observations assumption negligence the in to maintain a look on of failing’ 76(b) 437(b), out on the fireman’s side of the locomotive—l. and c.. quoted approval Fleming in v. respectively) and with State rel. ex “ Bland, jurisdiction the law in supra, viz.: ‘So that this [Missouri] injured in negligence party put when him is that the has als.o on-coming locomotive those oper distant from ear or so by by ating warning (or necessary) stopping possible it when and can injury person, operatives to such after the peril avoid such discover duty might arises, peril) look have (or, where a to discovered the then “ ” liability injury springs.’ And: ‘The care to for to use 2 hypothesis paragraph the discussed in hum injury avoid on [the only discovery of negligence in peril, arises or on anitarian rule], keep it there is a an outlook and make discovering ” ours.) (Italics the discovery peril.’ of
349 Fleming v. Bland, supra, ex rel. formulated of State The author ni & of a humanitarian ease Banks Morris the constitutive facts “ ‘ (1) peril; (2) Co., position in of supra, as follows: Plaintiff was (if it the to have defendant had notice thereof was of defendant suffices); (3) defendant after lookout, been notice constructive on'the ability, hand, receiving present with the means at notice had the such injury injury to himself or impending averted the without have ordinary impending others; (4) he care to such failed to avert exercise injury; (5) by plaintiff injured.’ Evidence and reason thereof makes, tending prove prima-faeie plaintiff.” these facts case immediately (Italics ours.) quotation approved The follows the (Banc, 1910), 56, 128 Murphy citation Wabash Rd. 228 Mo. Co. 262, 481; Morgan 1900), (Banc, S. W. v. Wabash Rd. Co. 195; Ry. (Div. II, 60 104 1891), S. W. Hanlon v. Missouri Pac. Co. 381, 388, Mo. 16 233. cited What is said these cases may respect maintaining -under humanitarian lookout the rule interest, Morgan read with In especially case. that case backwards, running locomotive tender front and pushing pulling the and caboose. The tender was wider than the locomotive engineer seeing prevent so loaded with coal as to fireman and. deceased, track ahead. None the trainmen struck saw who was ' (l. 269, 273(I) 196, 197(1) respectively.) the train. c. and (l. court 282 made respectively) upholding said c. case under humanitarian of this doctrine: “Under the circumstances train, case, to station someone he could what where see running into, caution, suggestion would not be extra but would be the ordinary prudence. plaintiff right go the most had a jury hypothesis negli that the servants defendant were gent failing calamity to use the means hand to avert after, by ordinary care, they the exercise could discovered have peril.” ours.) (Italics
Eppstein Ry. (Banc, 1906), v. Missouri Pac. 197 Co. Mo. 733(d), 94 W. . . 971(d), person S. states: “But if . so exposing danger (for example, danger going himself to from a loco motive) place controlling dangerous at a where those instru mentality track, expect have reason to a clear -have reason to no but expect presence whether such people, then makes no difference e person or not, see, is seen look us if thereafter if ordinary danger ours.) may (Italics care the be averted.” 1160, 1166, See Womack Missouri Pac. Co., also Rd. (2d) 368, I, 1925), (Div. S. Schroeder v. Wells 370[1]; instructions) 642, 654(III), (cases discussing 276 W. 64(III), Ry. (Banc, 1928), Mo. 34, v. Missouri Pac. els Co. Vow (2d) 7, 8; (Div. I, 1935), Chicago, Ry. Hoelzel v. I. &P. R. Co. *10 61, 126,
337 among Mo. 130 Missouri others. [8], [5], 350 Ry. (Banc, 1884),
ca like Werner 81 ses v. Co. Citizens 374, present involving factual clear 368, situations last chance. falling clear been Cases within the last chance doctrine have clas categories respect peril being sified under four to the discovered ability by injured person’s or discoverable defendant and or inability actually danger; Danger 1st. escape threatened viz.: by defendant; injured person physically escape. discovered unable to Danger actually by defendant; injured physi 2nd. discovered person cally escape. Danger actually able to 3rd. de discovered ought been; injured fendant person physically but to have unable escape. Danger actually 4th. but discovered defendant ought been; injured physically escape. to have person able to See Annotations, 47, L., 92 A. p. L. R. 119 20 R. 138 L. R. C. A. seq.; Restatement, 45 J., seq.; Torts, et 984 479 p. seq. C. et Secs. et jurisdictions In different are defendants liable for discoverable actually well as last peril discovered under the clear chance rule. humanity Our humanitarian upon precepts doctrine is reasoned of — regard every tender man must for and limb have of life peace (Murphy other men in 1910), times of Rd. (Banc, Wabash Co. 481, 485; (Div. Dutcher v. Wabash Rd. Co. I, 1912), 158(I), is not now [1], sought justified cause, to be involving' proximate theories com parative willfulness, negligence, or It recklessness wantonness. distinguished, not to be discussion, holdings issue under jurisdictions liability for a imposing peril discoverable duty timely maintain lookout would peril have revealed the under the last clear injured chance doctrine cases where person endeavoring to but is unable to extricate himself position from the peril. ". . timely discovery words are: . peril, the' make if it was (State the lookout” Fleming be on ex rel. Bland) . if it defendant to have been . lookout, (Banks on the Co.) constructive notice suffices” v. Morris & application and the of our humanitarian doctrine is not conditioned if upon looking defendant was if position defendant was in a to see. proceedings rulings Certorari quash conflict which records of appeals are previously courts restricted announced of law rules not promulgate principles. and do Had new Division One this overruling previous holdings Court considered was Court Two, en Banc or Fleming Division ex rel. State Bland would have approval. been quoted transferred to Bane for words were ad visedly preserve existing used our theretofore discoverable under our humanitarian rule doctrine cases wherein a defendant lookout, owes to maintain conforming, respect, this last holdings jurisdictions. clear chance of other Respondent’s rests, humanitarian case for its most favorable con *11 sideration, testimony upon Kaveney, respondent’s Jeremiah only expert many years He witness. had had of service as rail passenger engineer, having road fireman and approximately retired years prior four the trial. He made to observations at Schaeffer’s crossing. He specifically engine asked within an what distance traveling fifty with tender and six miles an hour over the coaches question track in stopped safety, etc., could be hu with under the Respondent manitarian rule. had offered no of the consist evidence appellants objected the train involved and ground on the that a proper (stated by appellants) foundation in detail had de not been veloped sufficiently opinion expert of an witness. In view of appellants’ the situation need not arise in event of a evidence retrial; and we develop do not and rule peculiar the issue under the (consult Burge (Banc), facts instant case v. Wabash Rd. Co. 925, 930(3) 96(III), ; Quinley Springfield 148 S. W. Co., App. Traction 165 S. W. 352 [14]), appellants also contend no submissible case was made on the issue to speed slacken under the so, humanitarian doctrine. If error in testimony admission change of the would not the ultimate result of this review.
Kaveney, respect with proper slackening to the in an speed emergency question, occasion in following testified re- to the engineer if sults stop” “started to at the speeds and distances indicated.
If train rúnning fifty hour, speed miles an could be its reduced between to fifteen twelve hour to miles an in three-hundred practically feet and stop ato in four-hundred feet.
If the running sixty train was an hour, speed miles could be its reduced to eighteen between fifteen to an miles hour in three-hundred feet, and to between five to ten an miles hour in four-hundred feet. If train running seventy hour, speed miles an could be its thirty thirty-five reduced to between to an miles hour in three-hundred feet; twenty to between fifteen feet, to miles an hour in four-hundred between five to six miles hour in five-hundred feet.
A proper solution requires consideration, among of the issue things, other of the corresponding positions of the truck and the train they approached crossing Schaeffer’s at the instant the humani tarian upon necessary doctrine seized situation and of the distance for the truck to travel clear path train. Respondent did not undertake necessary to establish the time for Krause to off back appellants’ track. Respondent’s only most favorable and evidence testimony- —Sherman’s slowing truck —established original down from an speed of ten or fifteen to five an hour miles proceeded along as it portion southern foot one-hundred upgrade, speed and that its first five commenced increase above thirty per forty miles hour feet south of the track and increased at eight per miles hour” the instant of "anywhere from five ability eight present stop possessed of With Krause impact. respondent on (most favorable to to twelve feet an hour ten
miles feet,* doctrine cértainlv the humanitarian issue) two three this charged appellants nor were the situation upon did seize speed while the of the truck was thereunder any duty to slacken Co., Pub. Serv. decelerating. Elkin v. St. Louis [3 Hostetter, ; *12 rel. v. (2d) 600, et State ex 74 et S. W. seq.] seq.], 603[4 Chicago, R. I. & 54; Karr v. 220, (2d) 50, Mo. 101 S. W. 211, 340 (2d) 547, 44, Consult 536, 108 S. W. Ry. Co., 341 Mo. P. [9-11]. 220, 228, Ry. Co., App. 228 Mo. Chicago, I. & P. v. R. Christner Ry. Atchison, & F. T. S. Co. 752, 756-7; Keele v. (2d) 64 S. W. 438(7, 8); v. Atchi 433, 167 W. Clark (Banc), 62, 79(3), 258 Mo. S. Womack v. Missouri Pac. son, McGowan T. & F. S. v. Wells, Ry. Co., 319 324 Mo. Rd. Mo. 652, Co., 865, 879, 6 663; 24 W. 1160, S. 1167, (2d) 954, (2d) 88 S. 633, 638 960[17] W. (2d) [4] ; ; 480). Restatement, Torts, Sec. Law of 368, (quoting 371 dis negligence of in the Having separate charges submitted a charges as each of put proof to her of said junctive, respondent was (Banc), recovery. rel. v. Hostetter generis State ex foundation for sui (2d) St. Charles 155, 125 W. 835. Consult Guthrie 344 S. 1175, Mo. The (2d) case (Banc), 347 91, Mo. 98[12], not-fully-satisfactory. of The distance The record is close.- might have accelerated crossing speed truck from the when its might forty speed feet. thirty might have been Its -feet been or might have an hour or it slightly five increased to above miles have train speed eight Likewise, an increased to .miles hour. sixty hour. The might fifty-miles an hour miles an been or have Kavefiey’s after the train may speed estimates of same sáid of be record are in the instant stop.” "started These factors variable How testimony witnesses, different witnesses. single not from the greater consideration give respondent ever, in our discussion we shall duty speed involving appellants’ to slacken on the factual issués Humanitarian cold law. than is entitled to receive under the she' very involved, necessitate niceties 'often cases, principles from the calculations, upon does seize mathematical for the doctrine merely position a of imminent arises. Obliviousness until facts difficulty gravest peril zone.' The to extend the imminent serves speed to slacken isWhere respondent’s appellant’s case on under humani speed train to slacken appellants’ when the importance. upon facts! This is of vital tarian doctrine seized quoting Testimony single (for instance, that re from a witness say, fifty sixty running, I worild or spondent’s witness) train “was judicial *For cases which notice taken -of maximum has distances been Thompson, others, stopping vehicles, among for 347 motor Zickefoose see 579, (2d) 790; App.), 784, (Mo. 148 Mo. W. v. Kurn Dowler 119 S. W. (2d) 852, 857 [51. hour, anyway” taking authorize of the most miles does not favorably speed party upon stated for the whom burden of rests the proof. witness, doubt, attempting give judg- no his best from, testimony single If a the train. witness ment that “this or that” existed a fact be evidence of considered as being fact, yet having “this” or party “that” the burden establishing “this” to make case when “that” does make case conjecture fails remove cause from the realm of and es- probative tablish substantive evidence that “this” rather than “that” petition, fact. “When the or the introduced .evidence cause, alleges proves facts, which, or a state of under liability law, non-liability may equally drawn, then the law says that it is the hold, court-to that rule, so there liability is no in such a (Banc), ease.” State v. Shelton ex rel. 660, 696(111), 156 citing authority; Adels- 965[2], S- berger Sheehy, 59 S. W. West., [1, Consult Grand Trunk Holstein, Rd. 6], Co. v. 67 Fed. (2d) 780, may jury say How and not “this” 782[1-4].
“that” say the fact when .was the witness does not which was the fact? principle involves the evidence, substantiveness question court; law for does not involve conflict in the evi- *13 dence, question a jury; of fact for frequent and ap- the finds more plication in may just instances where either of two conclusions logically ás be drawn the apply from same facts. These observations to the several remaining respondent’s factors variable case the slacken issue to at the time of submission.
In this case the calculations an appre must consider that ciable required eye time was for the fireman’s and his brain to see change grasp the situation and for his voice to execute a the warning and inform engineer, engineer’s the and for the ears to hear and system mind and his muscular and the react set brakes “. and for the judicial brakes to hold ‘We take can take notice of ” Berger that.’ (Banc), Stark (2d) 870; see, quoting which Wells, 652, 666, McGowan v. [1], 633, 639 [7, 8], e Respondent Kaveney’s testimony (th stresses witness italicized. portion infra) with respect to “Q: the “reaction” time involved. engineer And then the would comprehend hear and understand and or grasp what the fireman saying, it wouldn’t some time for take him realize, that, for him some time to do is that A*. That true? Q. correct. is And then he would stopping after had start he notice from the fireman he things would start stop tráiñ, these the the engineer probably would up reach and throw throttle and shut the off power, the steam order to shut off the and he would set his braking power, and he would take his hand and reach and down throw this lever air motion, operation, start the into into is brakes way, make an
that A. one but if he wanted to correct? That’s say right emergency stop him the fireman holler at and stop,' would he then, you engineer ahold, reach catch know, and the don’t and emergency stop, employ and throw it into would the brake valve throttle, power, and he doesn’t it reach shut will shut off off In from practically Q. all two is iñ few seconds'. seconds done give engineer would fireman until the time the would the notice A. you stop, have the make that what mean? brakes set to is interval of Q. course, I mean. there is Then, That’s what some through train, brakes, time that air runs required before air against wheels, that motion and the up shoes of the brakes shove aof Yes, sir, it a fraction time, takes some doesn’t it? A. takes go train of the train; second to over the from one end of the entire automatically other; line all at the same time. them brakes set give Q. Well, then, would be, it would the fireman time up would be warning engineer until the brake shoes to the and seconds, against cor fraction is that wheels would two quick your second, just rect, judgment Any. part A. as ? goes down, something This is followed bullet the air or like that.” anything “about two denial that ever said witness he Kaveney’s testimony give seconds.” consideration to. does reacting comprehending time factor involved in the fireman’s arising accelerating speed. changed truck its to the situation from the testimony Kaveney’s “just respondent’s If construction of witness necessary quick for all human as a bullet” means that the time in of the brakes was functioning setting here involved and mistaken in the obser then court is correct this stantaneous “Any part Berger, supra, and like cases. vations made in Stark v. something goes just quick down, air second, as bullet the “something that,” may pointed supra, like be evidence out ’’ having bur party like that for the probative but is evidence ‘‘ ’’ The quick a bullet. witness proof goes den of the air down goes “the air in which appears speaking been the time to have all reaction time psychophysical phenomena down” and not the *14 denial, just involved, he had which, notwithstanding mistaken and later two seconds. previously require time” stated would “some with to act Wars humans are constituted demonstrate that so of in contravention rapidity of witnesses the bullets. Utterances of an evident the result of laws of nature or which are physics, the or testimony value probative ignorance or of mistake are not treated d required merely courts, instance, are uttered; an because stultify white because some by adjudicating black to be themselves v. Missouri Hock black white. through witness that is mistake testifies 362; Sexton Ry. 360, 63 S. (Banc), Pac. Co. Es 25. Metropolitan Ry. Co., St. pecially true under the instant record. is this “average” Respondent speed bases the of upon calculations Kaveney’s the train had speed its decelerated in accordance testimony; Fifty gives that plus sixty-two, is: twelve divided two is average speed thirty-one of hour. cal Applying an miles like an speed eight gives culations to an the of the truck —five to miles hour — an average speed six-and-one-half an hour for the truck of miles thirty forty says from or feet her most south of the track. She testimony fifty favorable the speed is to consider the of train at miles train, longer hour. The time speed slower the of the the the physics available to Krause. of the This accords with law the energy, effect the actual a energy, that called' kinetic of sometimes moving object subject retarding such as train to a fixed resistance accord, varies in velocity square not with or speed but, with its the speed velocity; difficulty slackening its e., stopping or i. the or speed given the object subject retarding fixed resistance great than object moving at, say, more twice as when the ten miles an hour than moving Respondent’s five an hour. briefs miles calculations, among being contain others, upon train five- based the hundred and four-hundred feet distant at the moment the humani tarian upon doctrine assumptions seized the situation. find no These support in the Taking “average” (to record. speeds above which respondent law) estimating is not entitled under the speeds sufficiently review, distances involved accurate for instant the per hour), we have: (six-and-one-half forty truck if Krause’s miles track, feet south of the (moving per second) 9.529 feet 4.2 thirty from track; south, seconds if feet seconds 3.2 track; twenty if feet south, it was from the track. If seconds 2.1 away, seconds train (fifty per hour) miles was three-hundred- 4.2 east; feet if 3.2 away, and-seven seconds two-hundred- train was thirty-four east; away feet and if 2.1 the train one- seconds hundred-fifty-four crossing. feet east The fireman’s mind still grasp had change thereto; situation and he had react after engineer’s system which the mind and muscular had to react warning the fireman’s and the had All brakes to take hold. the while moving the train would be speed crossing with unabated toward the per at the rate showing of 73.33 feet second. There is no of record upon which slackening speed to base calculations if second second-and-a-half or elapsed two seconds before brakes of the train addition, took In hold. truck had travel distance between rails, eight inches, overhang four feet locomotive, two length inches, plus feet four of ten its or eleven feet—a distance of eighteen feet, path seventeen or to clear the the train. Even con sidering average thirty-one speed the train at miles an hour hold, say after started to take we cannot respondent the brakes upon removed her case slacken from the field con jecture planted thirty it on of fact. If the truck a basis was but
356 upon track humanitarian doctrine seized
feet south when the (Consult Frank situation, aided. Kick respondent’s case not v. 288.) 715, (2d) 284, Mo. lin, 724, 117 S. W. decelerating changing a speed
With the truck from accelerating may say continuing we not a matter speed, as finding in that jury was not warranted Krause oblivious law trainmen, in exercise approach and that the to the train care, given timely á warn have fact due could discovered such Chicago (Mo.), 717, 724[1, ing. Zumwalt & A. Rd. 266 S. W. v. Co. W. S. F. minal 3, 4, 20, 7] et Ry. Rd. seq., ; 24[2, Chawkley 3 Co. Assn., 88 W. ] (Mo.), S. ; Womack v. v. Wabash (2d) 868, 368, Missouri Ry. 371 877 (2d) Co., [2-9]. [1, 2], 557, 317 Mo. Pac. Consult 561 Rd. [10] 782, Co., 337 W. Todd v. ; 797, Perkins v. (2d) 915, 798, 297 S. St. Louis- 1160, Ter 918[1, 63, Co., 164, ; 137, 241 Mo. 145 S. W. Dutcher v. Wabash Rd. ] 4 among respondent cases that made 70, others. These establish duty humanitarian appellants’ warn under the submissible issue Co., supra, banc Dutcher Wabash Rd. said: doctrine. Court in en v. signals “Assuming may give alarm that care embrace the due signals fail cases, duty, and the further alarm some those fail) stop train, (or apparently will it remains purpose, of their have inquire: arise ? Attend to what we When does either may safely general 'It that the ruléd on that score: be said rule perilous of care in all as soon as the situation.of arises eases ” distinguishable in trespasser instant case is discovered.’ are with discovered but with discoverable that.we not concerned negligence peril. trespasser. not a “To be free Krause ‘ ap must act on reasonable under the humanitarian doctrine one pearances be at a time- when action would Perkins effective.” Assn., also, Homan Rd. supra. Terminal Rd. See v. Missouri Pac. 617, Co., 78 W. 624 It 61, 334 Mo. 64 S. [7], [13]. wit jury, presentation, under the settle conflict between stopped be in two or feet whether Krause’s truck could three nesses greater required or' a factor for consideration distance was Co., arriving danger 214 Mo. zone. McGee v. Wabash Rd. 530, 544, 33, 36; Co., 252 Mo. 114 S. Rollison Wabash Rd. 525, 539, 160 [7]. A in a founded the humanitarian defendant death action deprived portion of the benefit of Sec. doctrine is “may Ann., stating a p. defendant R. S. Mo. St. Sec. negligence that such death caused show as a defense may in an based on shown defense action deceased.” This However, rule primary negligence under the humanitarian . contributory negligence defense statute does not make mere negligence to humanitarian courts have such defense considered Thompson, Zickefoose under the statute. issues actions *16 ; Chicago, Hinds B. & (2d) 579, 148 S. W. 787[3], 792[16] (2d) 165, 168 Q. (Mo. App.), Rd. Co. [1]. charges giving in Practically error and appellants’ all testimony have been refusing the admission of of instructions and may there about which in made. covered the observations Issues may readily by avoided counsel question not be disposed exist and unnecessary opinion to extend the a retrial and it is in the event of for their statement. authorizing a in re- main was erroneous
Bespondent’s instruction under humanitarian covery speed on failure to slacken appellants’ cause remanded. judgment reversed and the doctrine. The is adopted foregoing opinion Bohling, C., is CUBIAM : —The PEB Douglas, JJ., Leedy, opinion en Clark and of the Court Banc. opinion; in result; Tipton, J., separate concur in concurs in result Gantt, Ellison, separate Hays in in J., opinion; C. concurs result JJ., absent. TIPTON, was sub respondent’s case J. (concurring).- — solely appellants'’ witnesses
mitted on the humanitarian doctrine. coal in the to throw testified that the locomotive had started fireman position of imminent firebox the deceased Krause reached before a' peril, just getting in cab back on his seat casualty produced no to this effect occurred. evidence There wit by respondent. jury appellants’ believe Evidently, the did not testimony was not nesses; right though even this it had do such 379, 84 Horton, 337 Mo. impeached. Dempsey contradicted or 1 . (2d)W. crossing, public it’ was Since the collision occurred words, In under appellants’ keep other of the a lookout. servants chargeable con- doctrine, appellants the humanitarian were stated, produced As was no evidence structive notice. before there seat; in his respondent that the fireman not tended to show ruling on jury’s finding de- our the case therefore under disregarded.' murrer, point should be appellants’ evidence this by Bohling, Hence, opinions prepared Commis- what said negligence is to antecedent sioner, Ellison, Judge, in reference case, place in It has this necessary not decision of this case. no to the and it is mere dictum. busy driving my it I down said, be if were automobile Could liability cities, humani- escape I under the one of our could street looking I I ahead but was
tarian doctrine because testified was injured looking foot and therefore did not see down at the brake (which I think un- point I If an issue think not. this were párty? me, should necessary decide), jury court against found this and’the jury’s my testimony. disturb the verdict on account If it did, evidence, weighing right which would it has no to do. opinion prepared by Bohling,
For the reason stated Com- missioner, slackening train, reference to I think should be reversed and remanded. case ELLISON, (concurring). My concurrence C. J. is limited to the — result, principal opinion concerning because of what said in the Fleming Bland, 565, 572, State ex rel. Bearing 800. in mind respondent’s was sub case *17 solely doctrine,
mitted the humanitarian I think opinion on the mingles negligence negligence. antecedent with humanitarian Pre ceding Fleming case, the discussion of in the the statement of facts opinion the recounts that the locomotive fireman had to started throw coal the firebox before the deceased po in Krause reached a just getting peril; imminent back on in the sition of his seat casualty when the position cab occurred. From on the his “deck” firing between the locomotive and engine, tender while the of course opinion the fireman could Then not see ahead. the that there mentions grade crossing another mile east of the one where Krause % west, struck but none for two miles or more in which latter direction going. implication the train was The that fireman is should have the leaving waited until he reached that stretch of track before his seat in firing engine. got the cab and the He well did that before Krause peril, foreign into and thus the negligence element of antecedent is the introduced case. into expressed,
That such is the view intended to be is made clear opinion what follows. announcing next cites several cases engine well established doctrines: that the a keep crew of train must highway a careful lookout for travelers about to (a cross the track. duty generally primary breach which would be negligence); and. that humanitarian to discoverable doctrine extends as well as peril. Then discovered follows the Fleming statement about the case (parentheses ours) : presented (in “Under the case) issues that ruling primary court was not negligence antecedent nature (duty keep involved in the instant lookout) case to a when it is said negligence prior that defendant’s is not to taken into consideration determining negligence under humanitarian doctrine.” negligence It is true the antecedent Fleming in the case failure a keep lookout plaintiff got before the peril: into it was negligent running of a streetcar at city a violation of ordinance so that the motorman stop could not plaintiff’s after the peril City arose. Appeals Court of The Kansas had plain- held the tiff could recover under the humanitarian doctrine because the motor- negligently man put power had it out of his precepts heed the doctrine, Fleming quashed that but case opinion for the reason negligence, but primary contributory negligence defense is a that primary ante- hence, negligence; and not to humanitarian or yet negligence, and negligence mingled with humanitarian cedent is contributory negli- rely right denied the the defendant right. In an effort gence valuable defense, deprived he as Fleming case prior in certain decisions dispel the confusion me) that under (it plainly phrase held can it seems as words any hind to no humanitarian doctrine the defendant owes . says ours) : (italics It plaintiff peril arises. until the latter’s impliedly hold that situation "Many decided this cases court doctrine; that the humanitarian peril of imminent is the basic fact of doctrine, and until situa- whatever unless no arises under arises .existence; peril and that when such tion of comes into requires upon the then exists the doctrine seizes situation ordinary instrumentality dangerous exercise operating one timely discovery peril, if it was to make respects: care certain infliction of lookout, and to avoid the to be on the thereafter hand and with the means at injury, the threatened if he can do so safety himself and others.” jeopardizing without it was since Fleming followed times to date case has been plaintiff’s 1929; whether the decided it makes no difference swerve, up, stop, a failure slow negligence antecedent consisted the rule is warn, keep lookout, anything whatsoever, else *18 Among the it. necessarily behind because of the reason so same— keep a look- humanitarian holding recent is no there cases v. Mercantile arises, Buehler Festus plaintiff’s peril out before are 961, 970, ex rel. 159, (2d) and State Co., 139, 343 Mo. 527, Both 950, (2d)W. 529. Shain, 954, 345 Mo. 137 S. Snider v. an instruction was these were banc decisions. In Buehler ease (or keep a imposed condemned which on the defendant to see position peril imminent for) approaching plaintiff lookout used peril; —i. he in in the ease the e., Snider instruction before immediately coming position peril,” into a "in expression: Reiling 1 A recent case and that likewise held bad. Division 2 (2d) 6, 8(1). In are Russell, 279, 348 153 Division S. W. (2d) (5), Winton, 152 169 347 Mo. S. W. Chastain 127(14). (2d) 120, Kurn, Bebout v. 348 Mo. S. W. squarely point. Division reversed This last case This seems declaring an error in instruction plaintiff’s remanded case for reasonably enginemen keep careful lookout were bound to on, the track because it was not limited persons approaching near or peril after the arose. application time denying as that if the fireman Nothing here to be understood said is peril began, lookout when the deceased’s then bound to be on the chargeable is, notice—that he was timdy with constructive to make Fleming says. if, peril, discovery by as case But
being' power ont his to act and put down at the firebox he had engineer quickly up seat, he had been warn the as if his against delay negligence cannot be counted caused antecedent his Fleming holding case, Spoene- and in precise him. That in the 821, 830, (2d) 9, 11, where a motorist Uhri, man v. power plaintiff save driving put.it too fast had out of it is as close as arose. With the time element after latter’s might difference: but the case, the above factor some make this authority Fleming case differentiation and limitation concurring opinion is addressed. point is the to which this Montgomery Ward & Plaintiff-Respondent, Kvasnicka, Lucile Defendants, Corporation, Johnson, Mont Company, Ira gomery 38003. Corporation, Appellant. Company, Ward & No. 503. September One, 8, 1942. Division Rehearing Denied, November 1942. Overruled, Banc December 1942.
Motion to Transfer