160 Mo. App. 571 | Mo. Ct. App. | 1911
This action was 'brought, in the circuit court of the city of St. Louis, by Mrs. Nannie C. Powell, widow of William B. Powell, against the Travelers Protective Association of America, of which he was a member at the time of his death, to recover $5000 on a policy or certificate issued to the husband by defendant. At the conclusion of the evidence for plaintiff, the court instructed the jury that under the evidence and pleadings in the ease, plaintiff was not entitled to recover. Plaintiff, excepting, toot a non-suit with leave to move to set it aside, and that being filed and overruled and exception saved, and motion for new trial duly filed and overruled, plaintiff excepting, perfected her appeal to the Supreme Court. The amount in controversy being $5000', and the judgment of non-suit having been entered in November, 1906, the case was appealed to the Supreme Court, it then having jurisdiction of oases involving that amount. This jurisdictional amount having been changed pending the submission of the case to the Supreme Court by the Act of the General Assembly of the state (Laws 1909-, p. 397, now section 3937, R. S. 1909), the Supreme Court transferred the case to this court. .
A comparison, of the statement of the case made by counsel for appellant with the abstract of the record, satisfies us that that statement is fair. In fact -the statement filed by the learned counsel for respondent, while differing from that made by counsel for appellant, in that it sets out some of the testimony verbatim instead of in narrative form, or according to its effect, as is done by counsel for appellant, for all practical purposes agrees with the statement made by counsel for appellant. We accordingly feel warranted in following that statement substantially as so made. There is no contention over the fact that William B. Powell
The petition in the case states the membership of William B. Powell in the defendant company; the provision of the by-laws providing for a payment of five thousand ($5000) dollars in case of accidental injury or death, and that P'owell was killed by being struck by a train and prays judgment for five thousand ($5000) dollars.
The answer alleges the provision of the by-laws that defendant should not be liable in case of death or disability caused wholly or in part by voluntary or unnecessary exposure to danger, and continues with the allegation that said William B. Powell did voluntarily and unnecessarily expose himself to danger by walking on the railroad tracks of the St. Louis and San Francisco Railway, over which trains were passing with frequency, and that as a consequence of such voluntary and unnecessary exposure he w'as run over and killed.
The rules appearing on the back of the certificate of membership introduced in evidence, have the following language touching the point at issue in this case:
“The member hereby agrees that the following rules shall be observed: that the Travelers Protective Association of America shall not be liable for injuries incurred by a member in occupations more hazardous . . . ' than specified in his application for membership ; or in case . . .' of death or disability caused wholly or in part by . . . voluntary or unnecessary exposure to danger. ’ ’
On the 23d day of July, 1905, Powell boarded a train of the St. Louis and San Francisco Railway, at Pacific, Missouri, the train being an excursion train on its way to St. Louis. When the' train was leaving Pacific, the conductor approached Po<well and asked him for his ticket. Plaintiff here sought to show the controversy which took place between the conductor
At the place where Powell was ejected from the train there was no light, it being entirely outside of the city of Pacific, something like fifteen hundred feet, or a little over a quarter of a mile from the last house east along the railro'ad in Pacific. On one side of the Frisco track, and less than one hundred feet from the track in the vicinity where Powell was put off the train, runs the Meramec river. On the other side of the Frisco track, across the ditch, is the track of the Missouri
Powell was ejected from an excursion train proceeding on the main track of the Frisco toward St. Louis. That train proceeded to the next station east of Pacific, a distance of about four and a half miles from Pacific, where it took the siding and allowed the fast mail train of the Frisco, going west, which is known as the 44 Sunflower Limited, ’ ’ being one of the through trains, of the Frisco from St. Louis to Texas, to pass it on the main track.
According to the testimony, about fifteen minutes elapsed from the time Mr. Powell was put off the train
There is no testimony covering the movements of Mr. Powell from the time he was ejected from the train near the Frisco pump house until a few seconds before he was struck by the Frisco train which killed him. From the time he was put off the train until he was killed, a period of about fifteen minutes had elapsed, and Mr. Powell’s location wa,s changed something more than a quarter of a mile.
The plat, or blue print, of the vicinity of the accident, shows that Mr. Powell was struck just where a transfer or switch track passes out from the Frisco main line to one of the lines of the Missouri Pacific, it being the west connection of the transfer tracks between the Missouri Pacific and the Frisco lines. It appears also from the plat, that at that point there were four lines of Missouri Pacific track immediately north of the Fiasco main line. There were no railroad tracks south of the Frisco main line. There were no streets approaching the railroad" tracks at this point from the north, but Elm street ran up to the track, crossing a ditch five and a half feet deep, on the south side, although the'street was not made at this point, and there was no crossing for wagons over the railroad tracks.
Witnesses testified to having seen Powell walking on the main line of the Frisco just a few seconds before he was killed. On the Missouri Pacific track just north of where the accident occurred, there was an engine pulling a long line of freight cars. "Witnesses who were on the engine of the Missouri Pacific at the time, testified that they were a short distance east of Mr. Powell
When the Frisco train struck Powell, it knocked him off the track. The train was stopped with the engine about four hundred'feet west of where Powell was struck, and when the train crew went back they found him lying near the track, on the right of way.
There was testimony tending to prove that the ditches, or “borrow pits,” along either side of the
Evidence was offered to show1 that it was a common thing for people to pass up and down the Frisco track from the place where the accident occurred to beyond the Frisco pump house; but this evidence was excluded by the trial court.
There is no evidence of how far Powell had walked between the rails of the main track of the Frisco. It appears from the blue print in evidence, that if he had been walking between the Frisco track and the Missouri Pacific, or transfer track, prior to the time he was struck, he was under the necessity, at or near the place he was struck, of crossing some track, if he continued his journey toward Pacific, or turned oft of the right of way to the first street which approached the track from the south.
On these facts, we are compelled to hold that the action of the learned trial judge, in sustaining a demurrer to the evidence was error.
The law thought to be applicable'to this class of cases is so fully briefed and the cases so copiously cited by the learned counsel for the respective parties, that it is usless for us to here repeat either. Nor will we undertake to follow counsel in their arguments as to the application or non-application of cases cited. It will suffice to say that for the purpose of this decision, we are guided principally by these cases, namely: Jamison v. Continental Casualty Co., 104 Mo. App. 306, 78 S. W. 812; Meadows v. Pacific Mut. Life Ins. Co., 129 Mo. 76, 31 S. W. 578; Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 73 S. W. 592; Powell v. St. Louis & S. F.
The case of Powell v. St. Louis & San Francisco Railroad Co., supra, was a case by this same'plaintiff against that railroad company for damages claimed for the death of her husband in the accident here involved. The plaintiff there recovered in the trial court but on appeal by defendant the judgment was reversed and the cause remanded, a majority of the Supreme Court in banc concurring in the reversal. The point of reversal and of dissent of three of the judges was confined entirely and solely to what the majority of the court held to be the error of the trial court in excluding testimony offered of the acts of the porter and train collector and that of the plaintiff’s husband, while the latter was being transported upon the train of defendant from St. Louis to Pacific immediately prior to his taking the train from which he was ejected. It appears-that the deceased had ridden out on a train of the Frisco from St. Louis to Pacific, Ms destination being Eureka, and that train not stopping there, when he reached Pacific, he boarded the train from which he was .ejected. It was over the admissibility of evidence as to his contention with the porter and collector on the train from St. Louis to P'acific that the judges divided. Four of the judges, the majority, held that it was prejudicial, reversible error to have excluded this testimony. The three dissenting judges held to the contrary. But all the judges united in holding that there was no other error in the case and that the instructions given were correct on all other points involved, particularly on the issue of whether the deceased could be charged with contributory negligence and so defeat plaintiff in her right to recover. The' views of Judge Fox, speaking for -the majority of the court on tMs particular matter will be found under the third subdivision of his opinion, commencing at page 274; those
The facts in evidence in the case at bar and in this case are practically identical. It was the same accident. Our Supreme Court, all the judges agreeing, held it a case for the jury. The issue of contributory negligence was there involved. Here assumption of risk is involved. In Powell v. St. Louis & S. F. R. Co., supra, the contributory negligence charged is that Powell walked along the tracks. In the case at bar, the voluntary exposure to danger charged is that Powell walked along these same tracks. The evidence in the two cases on this was practically identical. Admitting that there is a line between the assumption of risk and contributory negligence, where does it appear here? If in the first case there was evidence warranting the jury in finding there was no contributory negligence, it cannot be held in the case at bar, as a matter of law, that the same evidence showed that there had been an assumption of risk by a “voluntary or unnecessary exposure to danger,” for we take it that to defeat a recovery as a matter of law on that score, such voluntary exposure must be had with respect to a danger so obvious that no ordinarily prudent person would encounter it.
We can arrive a.t no other conclusion from a consideration of the first ease, than that' the evidence in this case warranted its submission to the jury, and that it was error for the learned trial judge to have sustained the demurrer to it. So also is the conclusion arrived at by a consideration of the other cases above cited.
If the ease is to be retried, it is not out of place to say that the ruling of the trial court in excluding evidence of what took place between the conductor of the
The trial court committed no error in excluding • the evidence that was offered to show that it was a common thing to pass up and down the Frisco tracks from the place where the accident occurred to beyond the P'risco pump house, unless this offer was accompanied with a further offer to show knowledge on the part of the deceased of this alleged user of-the tracks.
It is further to be noted that counsel for the respondent sets out with particularity the testimony of plaintiff as to her husband’s physical and mental condition, apparently arguing that this proved that the deceased had voluntarily placed himself in a situation of known peril. We cannot accept this as conclusive of his condition after leaving the train and before he was killed. It is in evidence that plaintiff had not seen her husband for some time prior to the accident. Her evidence did not bring the condition of her husband, mentally or physically, down to the time of the accident; did not cover the time elapsing between his being thrown off the train and the time when the accident occurred. Assuming that the deceased was violently thrown off the train and fell, striking his head and shoulders, it was for the jury to draw its own inference as to the effect upon both his mind and body. The presumption always is, that a given mental or physical condition being shown to exist at one time, continued until a change is shown. But facts being in evidence
For the reasons stated, however, that is to say, for the error of the trial court in sustaining the demurrer to the evidence, the judgment of that court is reversed and the cause remanded.