Maginnis v. Missouri Pacific Railway Co.

182 Mo. App. 694 | Mo. Ct. App. | 1914

NORTONI, J>.

(after stating the facts). — The court recited, in the order granting a new trial, that it erred in submitting the case to the jury, in that it should have directed a verdict for defendant, and this, of course, involves the idea that there is no substantial evidence to support a recovery on any of the grounds stated in the petition. It is urged by plaintiff that she made a prima-facie case by showing the fact that her husband came to his death at a public road crossing and defendant omitted to sound the statutory signals, but we are not so persuaded, in view of the contributory negligence on the part of decedent revealed in her evidence. The statute (Sec. 31401, R. S. 1909) imposes the obligation on defendant to ring the bell attached to its locomotive at a distance of eighty rods from the crossing of a public road and keep the same ringing until it shall have crossed such road, or sound the steam whistle eighty rods from the crossing and continue sounding it at intervals until the locomotive shall have crossed the public road. The same section provides, too, that the railroad company shall be liable for all damages any person shall hereafter sustain at such crossing when such bell shall not be rung or such whistle sounded as required, “Provided, however, that nothing herein contained shall preclude the corporation sued from showing that the failure to ring such bell or sound such whistle was not the cause of such injury. ’ ’ Formerly it was the rule of decision under this statute that a plaintiff made out a primafacie case of negligence by showing that neither the bell was rung nor whistle sounded, as required, and the injury complained of, for it was said that if so much appeared the statute cast the burden upon the railroad company to exculpate itself from fault by showing that the failure to ring the bell or sound the whistle was not the cause of the injury. [Huckshold v. St. Louis, I. M. & S. Ry. Co., 90 Mo. 548, 2 S. W. 794.] In that view, it is said the statute supplied the causal connection. [See McGee v. Wabash R. Co., 214 Mo. 530, 540, 545, 114 S. W. 33.] But more recent decisions qualify the general rule thus stated, to the effect that, if it appears affirmatively in plaintiff’s case the negligence of the injured party contributed to his hurt, or that if, from plaintiff’s case, it is revealed the failure to ring the bell or sound the whistle did not occasion the injury, the prima-facie case, which might otherwise be sufficient, is thus rebutted and overcome, so as to remove the question entirely from the province of the jury. In such cases, it is said that, notwithstanding the statutory provision, the defendant is not required to introduce evidence exculpating itself from fault and the case should not be submitted to the jury at all. [See McGee v. Wabash R. Co., 214 Mo. 530, 114 S. W. 33 ; Green v. Mo. Pac. R. Co., 192 Mo. 131, 90 S. W. 805.]

Here, there is an abundance of evidence tending to prove that defendant omitted to sound the whistle on the locomotive, as required by the statute, and, likewise, omitted to keep the bell constantly ringing. Of course, it is not essential to sound both the bell and whistle, for the statute is in the alternative as to this, but the evidence is that neither was done.

But be this as it may, it appears conclusively in plaintiff’s case that, but for his own negligence or inattention, plaintiff’s husband would not have been uppn the crossing immediately in front of the fast approaching train. Plaintiff’s witnesses say, and it is conceded too, that defendant’s track to the westward was straight and the view of an approaching train open for the distance of a half mile. The hour was about seven o’clock on Sunday morning and the day a bright one in August. Plaintiff’s husband was a man in good health, possessing all of his faculties, alert and with good eyesight and hearing. It is true that no one of the witnesses on the part of plaintiff saw decedent go upon the track, but the evidence is quite convincing that he passed north along the sidewalk on the west side of Berry road until he reached the end of that walk, twenty-one feet south of the south rail of the eastbound track, and then turned diagonally to the northeast, with a view, no doubt, of passing to the sidewalk on the east side of the road and north of the track, for it appears there was no sidewalk on the north side of the track on the west side of Berry road, and there was one on the east. It is to be conceded that the view of decedent was obscured by Evers’ store and his cottage and the long signboard in the rear for a time, but after conceding so much, it appears beyond question that no obstruction whatever of the view one-half mile to the westward obtained for a distance of thirty-six feet south of defendant’s south track. Evers’ store is said to be twenty feet wide and forty-two feet in length, and it appears to stand diagonally with reference to the railroad — that is to say, while the front end of the store adjacent to the sidewalk is about twenty-three feet south of the line of defendant’s right of way, the west end of the store is but twenty inches south of the same line. The distance between the south rail of defendant’s south bound track and the south line of the right of way is thirty-six feet, and as plaintiff’s husband walked northward, after passing Evers ’ store, it is certain and fixed beyond controversy that he had a clear view of the track for all of such thirty-six feet, and, indeed, there should be added to this twenty inches to compensate the distance which the west end of Evers’ store stood south of the right of way. According to this, the view was unobstructed for one-half mile to the west, while the decedent passed, if he moved straight forward, thirty-seven feet and eight inches. But it appears he followed the sidewalk to the end of it, twenty-one feet south of the south rail, and then turned to the northeast, entered upon the crossing boards on the track at the west end, and walked diagonally to the northeast comer of the crossing, where he was struck. This being true, he necessarily passed more than thirty-seven feet and eight inches before coming to the south rail of defendant’s track at the crossing, for, by turning to the northeast, the route was elongated some. While the train which ran upon decedent came from the west at from forty to forty-five miles per hour, the plaintiff’s witnesses all say he could have seen it clearly for half a mile, because the track was perfectly straight and no obstruction obtained at the place above pointed out. It is entirely clear that plaintiff’s husband was negligent and inattentive for his own safety while passing through all of this unobstructed space before going upon the track, without looking and listening for an approaching train, and this is true though no signals were sounded, for the law imposed upon him. the duty to be reasonably careful for his own safety notwithstanding. Reasonable care in the circumstances stated requires that one shall look and listen for an approaching train before going upon the tracks because railroad tracks are an ever present signal of danger to all persons sui juris. [Kelsay v. Mo. Pac. R. Co., 129 Mo. 362, 30 S. W. 339.]

But it is said, in the absence of evidence to the contrary, decedent must be presumed to have looked and listened for an approaching train, because the law always indulges the presumption that one exercised ordinary care for his own safety if nothing more appears. It is true this presumption obtains, but when the view is open and clear, as here, and to look is to see and one nevertheless goes upon the track before the approaching train, he must be regarded as having seen it upon looking and negligently attempted to pass the crossing when he was run upon. [Kelsay v. Mo. Pac. R. Co., 129 Mo. 362, 30 S. W. 339 ; Dyrcz v. Mo. Pac. R. Co., 238 Mo. 33, 141 S. W. 861.] In this respect the instant case is in no wise similar to that of Weigman v. St. Louis, I. M. & S. R. Co., 223 Mo. 699, 717, 123 S. W. 38, for there the view was obstructed to within eight feet of the track on which the moving cars were operated, and it was declared the presumption that decedent looked and listened before passing the obstruction was sufficient to repel the imputation of contributory negligence in driving his team upon the crossing after passing such obstruction. Here, plaintiff’s husband was not seated in a wagon, some distance beyond the horse’s head, but, instead, he was walking or running toward the tracks and the vision of the approaching train was unobstructed while he passed for more than thirty-six feet, in any view of the case.

But it is said decedent may not be declared negligent, for the reason that there is no evidence tending to prove where the train was at the time he went upon the track. It is true nothing appears to that effect. But be this as it may, if plaintiff’s husband either walked, as men usually do, or ran, as the engineer says he did, it is clear the train was within his view, if he had looked for it, all of the time after passing some twenty-two feet north of Evers’ store and more than thirty-six feet south of the track. Oi the other hand, if plaintiff’s husband went upon the track before the train came into view half a mile to the westward and stood there without looking or listening until its approach, he was equally negligent in so doing. It is, therefore, certain that, in any view of the case, and this, too, on plaintiff’s evidence alone, decedent must be declared negligent as a matter of law.

■But though such be true, no one can doubt the rule that,, although one is negligent for his own safety, a recovery may be allowed under the last chance doctrine[ if it appears he came to his injury through the negligence of another which more immediately occasioned his hurt — that is, if it appears such other person, after notice of his peril, neglected to exercise ordinary care to avert injuring him. The principle is, that the party who has the last opportunity of avoiding an injury is not excused by the prior neglect of the injured party. Therefore, the negligence of the party inflicting the injury and not that of the one first at fault is regarded in the law as the sole or proximate cause of the injury. In such cases, it is said the negligence of the defendant supersedes that of the plaintiff and becomes the proximate cause of, while that of plaintiff is to be treated as remote to, the injury. [See Klockenbrink v. St. Louis, etc. R. Co., 81 Mo. App. 351; s. c. 172 Mo. 678, 72 S. W. 900; Shearman & Redfield, Negligence (6 Ed.), Sec. 99.]

In some cases, where it appears one is upon the track and wholly oblivious to danger, as if asleep or unconscious, the courts seem to authorize a recovery for his ixljury under the last chance doctrine only where it appears the train could have been stopped and the injury thus averted. Such seems to be the rule, and we believe a proper one, on the facts of White v. Mo. Pac. R. Co., 159 Mo. App. 508, 141 S. W. 436. See, also, the case of Markowitz v. Met. St. R. Co., 186 Mo. 350, 359, 85 S. W. 351, where it is said it requires more than the showing of a mere possibility that the accident might have been avoided in order to bring a case within the humanitarian doctrine. [See, also, Burnett v. A. T. & S. F. R. Co., 172 Mo. App. 51, 154 S. W. 1135.] But there are other cases which authorize a recovery under the doctrine adverted to, even though it does not appear the train conld have been actually stopped before running upon the injured party. In such cases, for instance, where one is awake and conscious, as if walking or working upon the track, it appears to be sufficient, conceding the injured party to have been negligent, if it is made satisfactorily to appear that defendant, after seeing the peril of one so situate, could avert injuring him by slowing down the train or checking its speed in conjunction with the warning involved in the danger signal and thus enable him to save himself as by getting off of the track and out of danger. Of course, in this view, if it be that the collision occurs at a point where the railroad is entitled to a clear track and therefore a vigilant lookout is not required for persons thereon, liability attaches only in respect of a breach of duty after the engineer or those in charge of the locomotive actually saw the peril of the injured person. [Young v. St. Louis, I. M. & S. R. Co., 227 Mo. 307, 127 S. W. 19.] But if the injury occur at a public road crossing or at a place on the track where a license obtains and pedestrians are known to walk, the element of notice intervenes and requires that those operating the train should anticipate and look out for the presence of persons there. In such cases, the rule of deqision is established to the effect that if those in charge of the locomotive either see, or by exercising ordinary care to that end, could have seen, a party in peril on the track or crossing, or about to enter thereon, unobservant of the danger, and thereafter could avert injuring him, or by slowing down the train and checking its speed, together with the employment of danger signals, enable the party on the track to save himself from hurt, the obligation obtains to do so. On a breach of this obligation and for a failure in respect of it, a recovery may be had by the injured party, and this, too, though the space be insufficient in which to actually stop the train before a collision occur, for it will suffice if the injury could have been averted by the exercise of ordinary care, though a full stop could not be had in the intervening space. [Reyburn v. Mo. Pac. R. Co., 187 Mo. 565, 86 S. W. 174; Moore v. St. Louis Transit Co., 194 Mo. 1, 92 S. W. 390; Murray v. St. Louis Transit Co., 108 Mo. App. 501, 83 S. W. 995; Klockenbrink v. St. Louis, etc. R. Co., 172 Mo. 678, 72 S. W. 900.]

It is insisted that, though plaintiff’s husband was negligent at the time, she is, nevertheless, entitled to recover, for that it appears defendant might have averted the collision if its engineer had kept a vigilant watch, as was his duty, upon approaching the crossing of a- public road, and checked the speed of the train upon seeing him approaching the track as if to cross it and within the danger zone. It is certain' that the evidence introduced on the part of plaintiff alone is insufficient to authorize a recovery in this view; but though such be true, as to this matter, it is, in the present state of the case, competent to look at all of the testimony adduced on either side and consider the argument with reference thereto. [See Klockenbrink v. St. Louis, etc. R. Co., 172 Mo. 678, 72 S. W. 900.]

Besides laying a charge of negligence with respect to defendant’s omission to sound the signals, required by the statute, at a public road crossing, the petition avers, too, that defendant breached its duty in that those in charge of the locomotive failed to keep a vigilant lookout for persons in the highway and neglected to slacken or slow down the speed of the train after they either saw, or might have seen, plaintiff’s husband approaching the crossing with a view to passing over it. It is also averred in this connection, that defendant was negligent in not sounding alarm whistles after discovering the perilous situation of plaintiff’s husband and thus apprising him of the approach of the train. According to the evidence for plaintiff, her husband passed northward along the board walk on the west side of Berry road to the end of the walk, twenty-one feet south of the south rail, and then turned to the northeast and entered upon the track at about the southwest corner of the road crossing, as constructed with plank, and walked thence the full length of the crossing, sixteen feet, to the northeast corner thereof, where he was struck by the locomotive. This course is given in evidence by means of identifying decedent’s tracks because of a “break” in the sole of his shoe. If this route were followed, then plaintiff’s husband walked about sixty feet directly toward the tracks and the crossing under the eye of the engineer. The engineer, Hays, says he saw plaintiff’s husband immediately when he emerged from behind Evers’ store .and that he was running toward the crossing but in the roadway rather than upon the sidewalk. Of course, the engineer could not see the decedent immediately on his passing the northeast corner of Evers’ store because of the fact that the store stood diagonally as to the tracks and the northwest corner of it was within twenty inches of the railroad right of way. But from the testimony of the engineer, it may be safely said that he saw Maginnis when he was within ten or fifteen feet north of the northeast corner of the store building. The engineer said he thought decedent was going to the little station immediately south of the track but on the opposite side of Berry road. It is conceded, for all of the evidence reveals it to be true, that decedent was struck by the locomotive while at the end of the crossing boards and at the northeast comer of the crossing as constructed. One more step, or two, at most, would have placed him beyond all danger, for after coming upon the track, he had walked to the northeast the full length of the crossing and to its northeast corner, about sixteen feet. During all of the time, the decedent was in view of the engineer. According to the engineer’s testimony, he was running toward the track. The engineer gives it as his judgment that he saw him so running forty-five or forty-six feet from the point where he was killed. The engineer also says that the locomotive was within forty feet of the road crossing when he sounded two blasts of the whistle or the danger alarm, to the end of notifying Maginnis of the approaching train and the danger. It therefore appears that the engineer admits plaintiff’s husband ran forty-five or forty-six feet toward the place where he was killed, under his immediate eye, and other portions of the testimony of the same witness tend to prove that he ran sixty feet while the train approached and was all of the time in the view of the engineer, who says he first discovered Maginnis when he emerged from behind the line of Evers’ store. It is obvious that the locomotive at that time must have been several hundred feet west of the crossing, for it was approaching at from forty to forty-five miles per hour, that is, sixty-six feet per second, and overtook plaintiff’s husband at the end of his sixty-foot run, immediately before he stepped off the track on the northeast corner of the crossing. The engineer says he could have stopped the train within 600' feet at the rate it was traveling and that the speed could have been reduced to twenty miles an hour within 300 feet. It is to be inferred that had. the speed been reduced but slightly, plaintiff’s husband would have escaped without harm, for the collision occurred-when he was in his last effort to get off of the, track on the north side.- [Schmidt v. St. Louis Transit Co., 140 Mo. App. 182, 120 S. W. 96.] The engineer says, too, that though plaintiff’s husband was running toward the track all the time under his eye, he sounded no alarm whistle until within about forty feet of the crossing, which would be but a second before the catastrophe.

On this question, as to whether or not the issue should have been submitted to the jury, we are required to reject all inferences of fact in favor of the defendant and at the same time allow all such inferences as are reasonable in favor of the plaintiff, for the jury-alone may reckon with them. [Buesching v. Gaslight Co., 73 Mo. 219.] In view of this evidence, we believe the question as to whether or not defendant could have, prevented the injury and death of plaintiff’s husband, in the circumstances so stated, notwithstanding his negligence, by sounding an alarm and checking the speed of the train before reaching within forty feet of the crossing is for the jury to answer. It is true it may be that the engineer was not required to anticipate plaintiff’s husband would go upon the track in front of the train, but he says Maginnis was running in that direction with his eyes turned to the northeast, whereas the train was coming from the west. In such circumstances, it is for the jury to answer with respect to the area of the danger zone and to determine what the precepts of ordinary care may be as to obviating an injury to another. [Moore v. St. Louis Transit Co., 194 Mo. 1, 92 S. W. 390.] The admission that nothing was done toward checking the speed of the train or sounding the danger signal until the locomotive came within forty feet of the crossing points with great force to an omission of due care on the part of defendant.

But though such be true, the court very properly set the verdict aside, for the reason the instructions given at the instance of plaintiff inhere with error throughout. Both the first and second instructions authorize a recovery for plaintiff on a finding of negligence against defendant for an omission to sound the statutory crossing signals, and this, too, though plaintiff’s husband was negligent for his own safety at the time. This was error under the rule of decision above pointed out, and this is true even though contributory negligence was not pleaded in the answer, and we think it is, for that sufficiently appears in plaintiff’s case. If a recovery is to be liad at all, it may be sustained only on the last cbance doctrine, for the fault of the engineer in omitting to exercise ordinary care toward averting the injury after he either saw or might have seen the decedent about to become in peril — that is, coming toward the track in such a manner as to suggest the danger of a collision and to call for precautionary measures on his part.

The order granting a new trial should be affirmed and the cause remanded for further proceedings in accordance with the views above expressed. It is so ordered.

Reynolds, P. J., and Allen, J., concur.