ELLA RAMBAUD NEWELL, Respondent, v. JACOB M. DICKINSON, Receiver of the Chicago, Rock Island & Pacific Railway Company; CHICAGO, ROCK ISLAND & Pacific RAILWAY COMPANY, a Corporation, and A. B. STANLEY, Appellants.
St. Louis Court of Appeals
Opinion Filed June 29, 1921.
207 Mo. App. 369
Nor can it be said that the defendant, by accepting the two dollars premium paid its agent, ratified the alleged acts of said agent. Aside from the rule, that there can be no ratification without knowledge on the part of the defendant of the act claimed to be ratified by it, the premium paid to the agent insured the plaintiff; according to the contract of insurance, beginning the 8th day of January, 1917.
There is no question of waiver by the defendant of the terms of the policy in this case. The question is simply one of evidence. Obviously the plaintiff is proposing to abrogate the terms of a written contract, plain and unambiguous on its face, by parol testimony, without pleading or showing fraud or mutual mistake. This proposition cannot be entertained. Proof of such oral testimony should have been rejected by the trial court. It follows that the judgment of the circuit court of the city of St. Louis should be reversed; the Commissioner so recommends.
PER CURIAM:—The opinion of BRUERE, C., is adopted as the opinion of the court. The judgment of the circuit court of the city of St. Louis is accordingly reversed. Allen, P. J., Becker and Danes, JJ., concur.
1. RAILROADS: Negligence: Pedestrian on Track: Place Used by Public: Lookout by Engineer Required. At a place on the tracks of a railroad company customarily used by the public with the ac
2. ———: ———: ———: Death by Wrongful Act: Evidence: Inferences. In an action for damages for the death of plaintiff‘s husband, who was found dead in the right of way ditch near a railroad track, alleged to have been killed by a locomotive operated by defendant, held that while there was no direct evidence that the deceased was struck by the train, this fact can be legitimately inferred from the evidence.
3. ———: ———: ———: ———: Humanitarian Doctrine: Evidence: Requirements. In order to bring a case within the humanitarian rule, it is necessary that there be evidence, either direct or inferential, that the person in charge of the train could, by exercising ordinary care, have seen the deceased in a position of peril and at a distance sufficiently great to have enabled him to have stopped the train before striking the deceased.
4. ———: ———: ———: ———: ———: Evidence Insufficient. In an action to recover damages for the death of plaintiff‘s husband, a licensee on the right of way, alleged to have been negligently killed by a locomotive operated by defendant, where a recovery is sought upon the humanitarian rule, evidence reviewed and held insufficient, either direct or inferential, to show that the deceased was in the danger zone a sufficient length of time and far enough away from the on-coming train to give the engineer an opportunity to avoid striking him.
Appeal from the Circuit Court of St. Louis County.—Hon. John W. McElhinney, Judge.
REVERSED.
A. E. L. Gardner for appellants.
(1) Defendants’ instruction, in the nature of a demurrer to the evidence, requested at the close of plaintiff‘s case, should have been given by the court because: (a) There is no evidence, positive or inferential, that plaintiff‘s deceased husband was upon the track, lying, standing or sitting, for a time prior to the injury, suf
Peyton H. Smith and Robert M. Zeppenfeld for respondent.
(1) The defendant‘s demurrer to the evidence was properly overruled, because: (a) There is evidence both positive and inferential that plaintiff‘s deceased husband was upon the track for a time prior to the injury sufficiently long for either actual or constructive sight by persons in charge of the train and when it was at a distance sufficiently great to have enabled those in charge of the train to have averted the injury to the deceased through prompt action with the means at hand for that purpose. Murphy v. Railroad, 228 Mo. 56; Hinzeman v. Railroad, 182 Mo. 611; Klockenbrink v. Railroad, 172 Mo. 678; Morgan v. Railroad, 159 Mo. 262; Sinclair v. Railroad, 133 Mo. 233; Stark v. Lusk, 194 Mo. App. 250; Affirmed, 216 S. W. 1119; Reardon v. Railroad, 114 Mo. 384; Rine v. Railroad, 100 Mo. 228; Dutcher v. Railroad, 241 Mo. 173. (b) The existence of the fact may be shown by the proof of other facts from which an inference of its existence may be drawn: Rine v. Railroad, 100 Mo. 228. (c) When a certain state of
BRUERE, C. Plaintiff brings this action to recover damages for the death of her husband, alleged to have been negligently killed by a locomotive operated by the defendant, the Chicago, Rock Island & Pacific Railway Company. Plaintiff had judgment below for two thousand dollars and defendants have appealed.
The petition alleges, inter alia, that deceased was struck and killed by said locomotive while walking eastwardly on the railway track; that there was a habitual user for many years of the track by the public, at the place of the accident, with the forbearance and consent of said railway company; and counts for recovery upon the application of the humanitarian or last clear chance rule.
The answer is a general denial coupled with a plea of contributory negligence and a plea that the deceased, at the time he received the alleged injuries, was a trespasser upon the tracks of the defendant railway company and was not seen at the time by the person or persons in charge of the said oncoming locomotive.
At the close of plaintiff‘s case the defendants requested the court to give to the jury a peremptory instruction to find for the defendants, which the court refused to give. The defendants offered no testimony.
Appellants assignment of error is that the lower court erred in refusing to give the peremptory instruction.
The facts brought out at the trial, necessary to an understanding of the point raised, are as follows: The accident occurred on the 2nd day of September, 1916, in the morning at about 6:41 o‘clock. The deceased on said day lived with his wife near Vigus, a Station in St. Louis County, Missouri, on the railroad line of the defendant railway company. His house was situate about one hun-
With the physical facts thus before us the testimony of the witnesses, pertaining to the accident, can be more readily understood. Said testimony is as follows: Between 6:30 and 7 o‘clock on the morning of the accident the plaintiff stood in her doorway and saw the deceased leave their home going east. Plaintiff last saw her husband when he was on the trestle across Fee Fee Bridge. She testified that there was a fog that morning, but she was able to see plainly from where she stood to the trestle where her husband disappeared walking east on the trestle. A train passed Vigus Station going east about six or seven minutes thereafter. Plaintiff further testified that she did not hear the bell of the locomotive ringing when the train passed her home.
Witness Mrs. Lillie Grace, who resides fifty-three feet east of the Newell home, also saw deceased leave his home the morning of the accident. She observed deceased opposite his home walking east on the railroad tracks. She saw him on the trestle at which point he
The oncoming train in question gave several blasts of the whistle just west of Vigus Station. It passed said station at 6:41 o‘clock, A. M. There was a fog on the morning of the accident at Vigus Station. The witnesses testimony differed as to the distance a person could be observed through the fog; the longest distance testified to being seven hundred feet and the shortest fifty feet.
The plaintiff called the defendant, A. B. Stanley, the engineer in charge of the train, as a witness: He testified that he kept the automatic bell of the locomotive continuously ringing from a half mile west of Vigus Station to the city of St. Louis. That he kept a sharp outlook for persons on the track and did not see the deceased and did not know his train struck him until he was told about it. He further testified that owing to the density of the fog he was unable to see a person on the track at a greater distance than one hundred feet. Witness saw a hat taken off the engine when his train reached St. Louis. The train was traveling thirty miles an hour and could be stopped in a distance from five hundred to six hundred feet.
About fifteen minutes after the train in question passed Vigus Station the deceased was found dead in the right-of-way ditch, about twelve or fifteen feet south of the south or main track and three feet below the level of the track. An umbrella was sticking in the ballast on the south side of the south track eighteen inches from the ties and about opposite the telegraph pole. The body of the deceased was found forty or fifty feet east and twelve to fifteen feet south of the umbrella. There were indications that the deceased had been rolled along the
The evidence regarding user of the tracks by the public, at the point of the accident, was sufficient to fix the status of the deceased while on the right-of-way, within the user zone, that of a licensee and not that of a trespasser. The engineer had no right to expect a clear track, but the presence of persons on the track, at said place of user, was to be anticipated by him because of the customary user of the tracks by the public, with the acquiescence of the railway company. The engineer, therefore, was charged with the duty to use ordinary care to look out for pedestrians at the place in question and to use due care to prevent striking them. Ahnefeld v. Railroad, 212 Mo. 301, 111 S. W 95; Frye v. St. L. I. M. & S. Ry. Co., 200 Mo. 377, 98 S. W. 566; Fiedler v. The St. Louis, I. M. & S. Ry. Co., 107 Mo. l. c. 651, 18 S. W. 847.]
While there is no direct evidence that the deceased was struck by the train, this fact can be legitimately inferred from the facts regarding the finding of deceased‘s hat on the locomotive, the condition and position of deceased‘s body, which was found a few minutes after the train in question had passed, and the further evidence that parts of deceased‘s clothing was sticking on the rails close to where his body was found.
But the decisive question here is: Was there any evidence introduced, either direct or inferential, to show that the person in charge of the train in question had the opportunity to avoid striking the deceased?
Recovery is sought in this case upon the humanitarian rule. In order to bring the case within said rule,
The deceased when last seen was walking east on the trestle across Fee Fee Creek; this was five minutes before the train in question passed. Whether or not deceased was then in a position of peril the evidence does not disclose. The distance from where deceased was last seen to the place where he is presumed to have been struck is two hundred and ninety-four feet. Where did the deceased walk in travelling this distance? Across the trestle there were walkways. East of the trestle, to where he is presumed to have been struck, the space between the south or main track and the north quarry track was wide and level, which afforded him an opportunity to step from the main track and out of the danger zone on to this level space north of the main track. Where the deceased traveled from the point he was last seen on the trestle to the point where he is presumed to have been struck is left entirely to surmise and conjecture. Absent the necessary facts showing at what place the deceased entered the danger zone in view of the approaching engine and how long he remained in a position of peril, it is impossible to intelligently determine whether or not the en-
There is no evidence in the record, either direct or inferential, to show that the deceased was in the danger zone a sufficient length of time, and far enough away from the oncoming train, to give the engineer an opportunity to avoid striking him.
This is not a case like the case of Starks v. Lusk, 194 Mo. App. 250, cited by respondents: In that case the deceased was killed on a trestle which was four hundred and twenty-five feet long. The facts proven were “that the deceased was necessarily in peril from the time the train entered on that trestle until it struck him, whether he was walking, standing, sitting or lying down and regardless of what part of the trestle he was on. He could have come onto the trestle nowhere but at the north end and, wherever he was between those points, and whatever doing, he was in peril. He was killed about two hundred and eighty feet from where he entered into the place of peril and while the train was going that distance, at least, the deceased was seeable and was in a position of danger whatever he was doing or wherever he was. The train could have been stopped in much less distance. The place where this deceased was killed, and for some distance on either side thereof, was not like the open roadbed in the Hamilton and Whitesides cases, where only a step or two in space and a moment of time separated the place of safety from the place of danger.”
Whitesides v. Railroad, 194 Mo. App. 608, and Hamilton v. Railroad, 250 Mo. 714, are cases decisive of the point under discussion.
In the Whitesides case this court speaking through NORTONI, J., says, l. c. 621: “The precise inference called for relates to the position, or rather the place, of the man (that is, decedent) on the track in the instant case, together with the ability of the engineer to see him there, for such is essential to the fact of negligence. The inferences that a man could have been seen on the track and the train stopped in time to have saved him arise,
The above quotation in the Whitesides case is applicable here. We feel constrained to hold that the evidence was insufficient to submit the case to the jury. The peremptory instruction should have been given.
It follows that the judgment should be reversed; the Commissioner so recommends.
PER CURIAM:—The opinion of BRUERE, C., is adopted as the opinion of the court. The judgment of the circuit court of the county of St. Louis is accordingly reversed. Allen, P. J., and Becker, J., concur. Daues, J., not sitting.